Sri D.Dharma Rao

BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL : CUM :

THE COURT OF THE XVI ADDL.CHIEF JUDGE : CUM : II ADDL. METROPOLITAN SESSIONS JUDGE: HYDERABAD.

Present : Sri.G.Lakshmipathi,M.Com,LL.B., I Addl.Metropolitan Sessions Judge, FAC.XVI Addl.Chief Judge :Cum: II Addl. Metropolitan Sessions Judge, Hyderabad.

Dated this the 10th day of July, 2012

O.P.NO.1074 / 2007.

Between:-

1. Smt.Kiran Bhandari W/o Late Vijay Kumar Bhandari, aged 43 years, Occ : household.

2. Kum.Ruchi Bhandari D/o Late Vijay Kumar Bhandari, aged 19 years, Occ : Student.

3. Vinod Kumar Bhandari S/o Late Vijay kumar Bhandari, aged 15 years, Occ : Student.

4. Smt.Chandrani W/o Late Sri Kundanlal Bhandari, aged 75 years, Occ : Household. (No.3 being minor Rep. By his mother and Natural guardian pet.No.1 herein).

(All are Langar House, Hyderabad) ...... Petitioners / Claimants.

And

1. M.Krishnasri S/o Vijayraj Kumar, aged 40 years, Occ : Business, R/o 4-96, Meerjapuram, Krishna Dist.

2. The Oriental Insurance Co.Ltd., Rep. By its Divisional Manager, D.O.No.I, III Floor, Oasis Plaza, Tilak Road,

Abids, Hyderabad. ....... Respondents.

This petition is coming for final disposal before me in the presence of Sri.N.Krishna, Learned Counsel for the Petitioners and Sri.Katta Laxmi Prasad, Learned Standing Counsel for Respondent No:2 and R.1 remained expartee and upon perusing the petition and counter filed by both parties and on hearing both sides, and having stood over for consideration, this court made the following :- :: O R D E R ::

1This is a petition filed by the petitioner under Section 166 of Motor

Vehicles Act, against the respondents 1 and 2, requesting this Tribunal to award an amount of Rs.10,50,000/- for the death of Vijay Kumar Bhandari, husband of the first petitioner and father of the petitioners nos. 2 and 3 and son of the petitioner no.4 in a motor vehicles accident.

2The allegations in the verified petition filed by the petitioner in brier are that on 10.1.2007 the deceased Vijay Kumar Bhandari and his friend

Joginder were proceeding on Hero Honda motor cycle no. HK 02R 7228 from

Mehdipatnam towards Langar House, on ring road. At that time, the deceased was riding the vehicle and his friend was sitting as pillion rider on the said motor cycle and when they reached near Roop Garden Function Hall,

Lakshimnagar, one lorry bearing no. AP 5V 5111 came from behind with high speed driven by its driver in rash and negligent manner and dashed the Hero

Honda from its behind. Due to which the deceased and his friend fell down and

have sustained injuries. Immediately they were shifted to Military Hospital,

Langar House, Hyderabad. During the course of treatment, the deceased Vijay

Kumar Bhandari died at 3.45 pm. Hence, the claim petition.

3The details of the compensation amount claimed by the petitioner are as follows:- (I)SPECIAL DAMAGES;

(i)Transport to hospital.Rs. 5,000/-

(ii)Damages to clothing.Rs. 5,000/-

(iii)Treatment and medicines.Rs. 10,000/- (II)GENERAL DAMAGES:-

(i)Pain and suffering.Rs. 25,000/-

(ii)Loss of life and earning power.Rs.10,05,000/-

Total=Rs.10,50,000/- 4The first respondent proceeded exparte. The allegations in the counter filed by the second respondent in brief are that the allegations in the petition filed by the petitioners are not correct. The petitioners have to prove all the allegations in their petition. The petitioners, must be prove that they are the legal heirs of the deceased. The petitioners must prove that the driver of the offending vehicle was having valid driving licence as on the date of accident.

The petitioners also must prove that there was valid driving licence for the offending vehicle and that valid insurance policy also for the offending vehicle.

The amount of compensation as claimed by the petitioners is highly excessive.

5Basing on the above pleadings the following issues were framed for trial:- (1)Whether the accident took place on 10.1.2007 at 2.20 pm, due to the rash and negligent driving of the Lorry bearing no. P 5V 5111, by its driver?

(2)Whether the petitioners are entitled to claim compensation from the respondents? If so, to what amount and from whom?

(3)To what relief?

6The second respondent filed a petition under section 170 of Motor

Vehicles Act on 30.5.2012 and the same was allowed and thereby the second respondent is authorised to take all the defences that are available to the owner of the offending vehicle.

7On behalf of the petitioners, Pws 1 to 3 were examined and Exs.A1 to 9 were marked. On behalf of the second respondent, no witnesses were examined and no exhibits were marked.

8Heard the learned counsels of both sides on record.

9ISSUE No.(1):-To prove that the pleaded accident was occurred due to rash and negligent driving of the driver of the offending vehicle, i.e., lorry AP 5V 5111, the petitioners have examined Pw1 and Joginder singh as

Pw2. Admittedly, Pw 1 is not eye witness for the pleaded accident.

Therefore, her evidence is no way helpful to prove this issue. Pw2, Jogender

Sikngh in his evidence has stated that on 10.1.2007 at about 2.20 pm, near

Roof Garden Function Hall, Langar House, the accident in this case was occurred. At that time, he was sitting as pillion rider and the deceased was riding the said motor cycle HK 02R 7228. While going from Mehdipatnam to

Langar House side and when they reached near to the said place, one lorry AP 5V 5111 came behind them driven by its driver in rash and negligent manner and hit their motor cycle. Due to that both of them fell on the road and sustained injuries. The deceased was shifted to Golconda hospital and while under going treatment, he died on the same day. The accident was occurred due to rash and negligent driving of the said lorry. In spite of searching cross examination of this Pw2, the second respondent could not elicit a single point to conclude that the pleaded accident was not occurred due to the rash and negligent driving of the driver of the offending lorry. Ex.A1, the copy of the first information report in crime no.9/2007 of Langar House police station,

Ex.A2, the copy of the charge sheet in the above crime filed by the Sub

Inspector of Police, Langar House Police Station, Hyderabad before the Court of VI Additional Chief Metropolitan Magistrate, Hyderabad, Ex.A4, the copy of the inquest report over the dead body of the deceased shows that the pleaded accident was occurred due to rash and negligent driving of the driver of the offending lorry No. AP 5V 5111. The second respondent who is contesting the petition has not produced any evidence to rebut the evidence of Pw2 and the contents of Exs.A1, A2 and A4. There is nothing to disbelieve the evidence of

Pw2 and the contents of Exs.A1, A2 and A4. Hence, with the evidence of Pw2 and with the contents of Exs.A1, A2 and A4, this issue no.1 is hereby answered in favour of the petitioners and against the respondents.

10ISSUE No.(2):-In view of my finding on the issue no.1, I hold that the pleaded accident was occurred due to rash and negligent driving of the driver of the offending lorry No. AP 5V 5111. It is the contention of the petitioners that the first respondent is the owner of the offending vehicle. The first respondent proceeded exparte. The second respondent is not disputing the ownership of the first respondent over the offending vehicle. Therefore, we can take that the first respondent is the owner of the offending vehicle. The second respondent is not disputing about the issuance of the insurance policy for the offending vehicle and its validity as on the date of accident. The evidence of

Pws 1 and 2 clearly shows that the deceased Vijay Kumar Bhandari died in the pleaded accident. Therefore, the first respondent being the owner of the offending vehicle is vicariously liable to pay compensation for the death of the deceased in this case, which was occurred due to rash and negligence of his vehicle driver to the petitioners who are the legal heirs of the deceased. The second respondent being the insurer of the offending vehicle is liable to indemnify the liability of the first respondent. Hence, the respondents no.1 and 2 are jointly and severally liable to pay compensation for the death of the deceased in this case.

11It is the contention of the learned counsel for the petitioners that since there is death of the deceased/victim in this case, the petitioners are entitled more than Rs.10,50,000/- as the deceased was earning Rs.8,141/- per month as salary as security guard and he was ex service man.

12It is an admitted fact that the victim in this case Vijay Kumar

Bhandari died in the pleaded accident. It is also not in dispute that the said

Vijay Kumar Bhandari was an ex service man. It is the contention of the petitioners that the deceased was working as security guard and earning

Rs.8,141/- per month as salary. To prove their contention they have examined one Ch.Elaiah as Pw3. In his evidence Pw3 who is working as branch manager in G.B.S. Security Services Private Limited has deposed that the deceased

Vijay Kumar Bhandari worked as security gun man in their organization from 1.11.2006 to 10.1.2007 till his death. He also deposed that after deduction of provident fund, net salary of the deceased was Rs.8141/- and Ex.A8 salary certificate was issued by him. During cross examination, this Pw3 has stated that he has not produced any records pertaining to his security services organization. he also admitted during cross examination that he has not brought any record relating to the case of the deceased as they are not available in

Hyderabad branch and they are in the custody of the head office at Mumbai.

So, it is not possible to take that the information given under Ex.A8 pertaining to the salary of the deceased is true and correct or not since the deceased worked in their organization for about two months and ten days only. It is not in dispute about the deceased working as security gun man. So considering the profession of the deceased, we can take his monthly income was not less than

Rs.4,000/- and that the annual income of the deceased in this case must be

Rs.48,000/-. Since, there are four dependents on the deceased, we can deduct 1/4th of his income towards his personal expenditure. So, the loss of annual dependency in this case is Rs.36,000/-. The deceased was aged 46 years as on the date of his death as per post mortem examination report under Ex.A5 and under inquest report under Ex.A.4. So, the multiplier that applies to a person aged between 45 and 50 years is 3 as per second schedule to Motor Vehicles

Act. So, the loss of dependency in this case must be Rs.36,000/- (annual loss of dependency) X 13 (multiplier) = Rs.4,68,000/-. Since, there is death we can award Rs.5,000/- towards funeral expenditure, a sum of Rs.15,000/- towards loss of estate and another sum of Rs.15,000/- towards of loss of consortium to the 1st petitioner being the wife of the deceased. So, the total compensation that can be awarded to the petitioners in this case is Rs.5,03,000/-. Hence, this issue no.2 is hereby answered accordingly.

13ISSUE No.(3):-In view of my finding on issue nos. 1 and 2, the petition is to be allowed partly with proportionate costs by awarding compensation of Rs.5,03,000/- with interest at 7.5% per annum from the date of the petition till the date of realization payable by the respondents 1 and 2 jointly and severally to the petitioners.

14In the result, the petition is hereby allowed partly with proportionate costs by awarding compensation of Rs.5,03,000/- (Rupees Five Lakhs Three

Thousands only) with interest at 7.5% per annum from the date of the petition till the date of realization payable by the respondents 1 and 2 jointly and severally to the petitioners. Advocate fee is fixed at Rs.3,000/-. Out of the compensation amount awarded, the first petitioner being the wife of the deceased is entitled to Rs.2,03,000/- with entire interest and costs; the petitioners nos. 2 and 3 being the minor children are entitled to Rs.1,20,000/- each and the 4th petitioner being the mother of the deceased is entitled to

Rs.60,000/-. Immediately after deposit of the compensation amount by the respondents 1 and 2, the first petitioner is entitled to withdraw an amount of

Rs.1,03,000/- with entire interest and costs. The remaining share of compensation amount of the first petitioner shall be kept in fixed deposit in any nationalized bank for a period of three years. The petitioners nos. 2 and 4 are entitled to withdraw their entire shares of compensation amounts. Since, the petitioner no.3 who was aged 15 years by the time of filing of the petition, he must have attained majority by this day. Therefore, he is entitled to withdraw his entire share of compensation amount after getting himself declared as major by applying to this Tribunal by showing his age proof.

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

pronounced by me in the open court, this the 10th day of July, 2012.

I ADDL.METROPOLITAN SESSIONS JUDGE,

FAC.XVI ADDL.CHIEF JUDGE : CUM :

II ADDL.METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

Appendix Of Evidence Witnesses Examined

For petitioner:-

P.W.1. Kiran Bandari.

P.W.2. Jogender Singh.

P.W.3. Ch.Elaiah

Witnesses Examined

For Respondents:- NIL.

Exhibits Marked

For Petitioner :-

Ex.A.1. Certified copy of FIR along with complaint in Cr.No.9 of 2007 of P.S. Langerhouse, Hyderabad.

Ex.A.2. Certified copy of Charge Sheet in the above said crime.

Ex.A.3. Certified copy of Scene of panchanama along with sketch.

Ex.A.4. Certified copy of Inquest Report of my deceased husband Vijay Kumar Bandari.

Ex.A.5. Certified copy of Postmortem report.

Ex.A.6. Certified copy of M.V.I.Report.

Ex.A.7. Certified copy of Medico legal certificate.

Ex.A.8. Certified copy of salary certificate dt.13.1.2007 issued by GBS Securities services private Ltd.,Hyderabad.

Ex.A.9.Photo Identity card of my deceased husband.

For Respondents:- NIL

I ADDL.METROPOLITAN SESSIONS JUDGE,

FAC.XVI ADDL.CHIEF JUDGE : CUM :

II ADDL.METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

D E C R E E

BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL : CUM :

THE COURT OF THE XVI ADDL.CHIEF JUDGE : CUM : II ADDL. METROPOLITAN SESSIONS JUDGE: HYDERABAD.

Present : Sri.G.Lakshmipathi,M.Com,LL.B., I Addl.Metropolitan Sessions Judge, FAC.XVI Addl.Chief Judge :Cum: II Addl. Metropolitan Sessions Judge, Hyderabad.

Dated this the 10th day of July, 2012

O.P.NO.1074 / 2007.

Between:-

1. Smt.Kiran Bhandari W/o Late Vijay Kumar Bhandari, aged 43 years, Occ : household.

2. Kum.Ruchi Bhandari D/o Late Vijay Kumar Bhandari, aged 19 years, Occ : Student.

3. Vinod Kumar Bhandari S/o Late Vijay kumar Bhandari, aged 15 years, Occ : Student.

4. Smt.Chandrani W/o Late Sri Kundanlal Bhandari, aged 75 years, Occ : Household. (No.3 being minor Rep. By his mother and Natural guardian pet.No.1 herein).

(All are R/o Langar House, Hyderabad) ...... Petitioners/Claimants.

And

1. M.Krishnasri S/o Vijayraj Kumar, aged 40 years, Occ : Business, R/o 4-96, Meerjapuram, Krishna Dist.

2. The Oriental Insurance Co.Ltd., Rep. By its Divisional Manager, D.O.No.I, III Floor, Oasis Plaza, Tilak Road,

Abids, Hyderabad. ....... Respondents.

CLAIM: Petition filed U/sec. 166 of M.V.Act, 1989 and rules 455 of APMV Rule for compensation of Rs.10,50,000/- for death occurred on 10.1.2007 at 2.20 PM near Roop Garden Function Hall, Laxminagar, Langar House, vide in Cr.No.9/2007 of PS Langar House, Hyderabad.

Valuation:- Petition is valued Rs.10,50,000/- and paid C.F.9860/- O.P. Filed on 5.6.2007 O.P. Numbered on: .7.2007.

This petition coming on 25.8.2010 for final hearing before me in the presence of Sri.N.Krishna, Advocate for the Petitioners and Sri.Katta Laxmi Prasad, Learned Standing Counsel for Respondent No:2, and R.1 remained exparte and after this matter having been stood over for consideration till this day the Court Doth Order and Decree as under :-

1. That the petition in OP.No.1074 / 2007 be and the same is hereby partly allowed with proportionate costs against R.1 and R.2.

2. That the petitioners are be and hereby awarded total compensation of Rs.5,03,000/- (Rupees Five Lakhs Three Thousands only) with interest at 7.5% per annum from the date of the petition till the date of realization payable by the respondents 1 and 2 jointly and severally to the petitioners.

3. Out of the compensation amount awarded, the first petitioner being the wife of the deceased is entitled to Rs.2,03,000/- with entire interest and costs; the petitioners nos. 2 and 3 being the minor children are entitled to

Rs.1,20,000/- each and the 4th petitioner being the mother of the deceased is entitled to Rs.60,000/-.

4Immediately after deposit of the compensation amount by the respondents 1 and 2, the first petitioner is entitled to withdraw an amount of

Rs.1,03,000/- with entire interest and costs. The remaining share of compensation amount of the first petitioner shall be kept in fixed deposit in any nationalized bank for a period of three years.

5The petitioners nos. 2 and 4 are entitled to withdraw their entire shares of compensation amounts. Since, the petitioner no.3 who was aged 15 years by the time of filing of the petition, he must have attained majority by this day. Therefore, he is entitled to withdraw his entire share of compensation amount after getting himself declared as major by applying to this Tribunal by showing his age proof.

6The Respondents do also pay a sum of Rs.7,503/- towards proportionate costs to the petitioners.

7That the advocate fee is fixed Rs.3,000/-.

Given under my hand and seal of this court, on this the 10th day of

July, 2010.

I ADDL.METROPOLITAN SESSIONS JUDGE,

FAC.XVI ADDL.CHIEF JUDGE : CUM :

II ADDL.METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

PARTICULARS OF COSTS

For the Petitioner: For the Respondents:

R.1 . R.2. Stamp on Petition 9860-00 Exp. 2/-

Stamp on Vakalat 2-00

Process fee 110-00

Advocate fee 3000-00

Publication Charges --

Stamp on exhibits1-00

Commissioner's fee --

TOTAL 12,973-00 Exp. 2/-

Proportionate costs allowed Rs.7503/- FC & MC filed.

I ADDL.METROPOLITAN SESSIONS JUDGE,

FAC.XVI ADDL.CHIEF JUDGE : CUM :

II ADDL.METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

1

IN THE COURT OF THE XVI ADDL.CHIEF JUDGE : CUM :

II ADDL.METROPOLITAN SESSIONS JUDGE: HYDERABAD.

Present : Sri.G.Lakshmipathi, M.Com.LL.B., I Addl.Metropolitan Sessions Judge, FAC. II Addl. Metropolitan Sessions Judge, Hyderabad.

Dated this the 10th day of July, 2012

Crl.R.P.No. 105 of 2012 IN

Crl.M.P.No.4438 / 2009

IN C.C.No.354 of 2008 ( On the file of XIV Addl.C.M.M.Hyd.)

Between:-

1. R.Pratap S/o R.Chandr Praksh, age 52, Occ : Govt. Service, R/o Karimnagar.

2. R.Ramkumar S/o R.Suryanarayana, age 48, Occ : Govt. Service, R/o Karimnagar.

3. M.Narendram S/o Gopal Reddy, age 49 years, Occ : Govt. Service, R/o Karimnagar.

4. K.Narender Reddy S/o K.Janardhan Reddy, age 61, Occ : Govt. Service, R/o Karimnagar.

5. R.Sobharani W/o Chandraiah, age 49 years, Occ : Govt. Service, R/o Karimnagar.

6. A.Sulochana W/o Kishan, age 50 years, Occ : Govt. Service, R/o Karimnagar.

7. S.Nanak Singh S/o Jeevan Singh, age 60 years, Occ : Govt. Service, R/o Karimnagar.

8. R.Ramkumar S/o R.Suryanarayana, age 48 years, Occ : Govt. Service, R/o Karimnagar.

9. G.Laxman S/o Garudachalam, age 54 years, Occ : Govt. Service, R/o Karimnagar. .... Revision petitioners/ Accused 1 to 7 & 9,10.

And

The State through CBI, Hyderabad ..... Respondent /Complainant.

This Crl.Revision Petition is coming for final hearing before me in the presence of Sri.V.Surender Rao, Counsel for the Revision Petitioner /Accused and upon perusing the case records this court delivered the following :- 2 :: O R D E R ::

1. This is a criminal revision petition filed by the revision petitioners/.accused nos. 1 to 4 and 6 to 11 under Section 397 of Cr.P.C. against the order dated 25.03.2011 passed in Crl.M.P.no.4438/2009 in CC No.354/2008 on the file of XIV Additional Chief Metropolitan Magistrate Court, Hyderabad.

2. The revision petitioners herein are petitioners/accused nos. 1 to 4 and 6 to 11 and the respondent herein is the respondent/complainant in

Crl.M.P.no.4438/2009 in CC No.354/2008 on the file of XIV Additional

Chief Metropolitan Magistrate Court, Hyderabad.

3. The petitioners in the above said Crl.M.P.No.4438./2009 filed the said petition before the trial court under Section 239 of Cr.P.C. to discharge the petitioners/accused nos.1 to 4 and 6 to 11 for the offence under Section 420 of IPC by holding that the prosecution was launched without complaint or proper sanction from the competent authority and the prosecution failed to make out a prima facie case against the petitioners and pass such order or orders as deems fit and proper.

4. The allegations in the petition filed by the petitioners/accused nos. 1 to 4 and 6 to 11 before the trial court are that without any complaint from BSNL (Bharath Sanchar Nigam Limited) the Central Bureau of Investigation has registered a case against the petitioners/accused nos. 1 to 4 and 6 to 11 and deceased/accused no.5. House building loan was released to the petitioners and the same was repayable with interest and recoverable from the salaries 3 of the petitioners. Therefore, there is no wrongful loss and wrongful gain in this case. Therefore, the ingredients of cheating are not made out. To prosecute the accused as employees the sanction orders under Section 197 of

Cr.P.C. not obtained. There is administration lapses. The departmental action was taken against the petitioners by B.S.N.L.. Hence, the criminal proceedings are not maintainable against the petitioners. Hence, the petition.

5. The respondent/complainant filed counter through Learned Assistant Public

Prosecutor stating that all the accused have committed illegal act with dishonest intention to cheat the BSNL in their individual capacity.

Therefore, sanction for prosecution is not required under section 197 Cr.P.C.

The case was registered on the basis of information to Murali Krishna,

Inspector of Police and he lodged the complaint on 23.6.2006. Therefore, the case against the petitioners is maintainable. In the complaint, it was stated that petitioners have availed house loan without actually constructing the houses by submitting false certificates. Physical verification reports indicated that the petitioners have constructed their respective houses up to plinth level and therefore, second installment loan was not released. The amount sanctioned was misused for other purposes than the purpose for which it was sanctioned. Therefore, ingredients of the offence of cheating are made out and therefore, the petition filed by the petitioners to discharge them is liable to be dismissed.

6. The trial court after hearing the arguments of the learned counsel for the petitioners and the learned Additional Public Prosecutor for the State has 4 dismissed the petition.

7. Aggrieved by the said orders of dismissal of the petition, the petitioners have filed the present revision on the following g rounds:-

The order of the trial court is contrary to law and as such, not maintainable.

Prosecuting the accused nos. 1 to 4 and 6 to 11 under one charge and taking cognizance of the offences against the accused in one case and proceeding to frame charge against all the accused is illegal and not permissible and it is nothing but mis joinder of the charges, since, admittedly, there is no connection whatsoever between the transaction of the respective accused nos. 1 to 4 and 6 to 11. Prosecution of the accused nos. 1 to 4 and 6 to 11 is contrary to the provisions contained under Chapter XVII of the Criminal

Procedure Code and it not covered by Sections 219, 220 and 223 of Cr.P.C.

The petitioners are entitled to be discharged on the sole ground of mis joinder of the charges which will prejudice from respective cases in the joint trial which is not permitted under law. Admittedly, the respective alleged offences said to have been committed by accused nos. 1 to 4 and 6 to 11 are of different dates without any usual connection with one another. The necessary ingreidents for the offence under Section 420 of IPC not made against the petitioners/accused nos. 1 to 4 and 6 to 11. Hence, the revision.

8. Now the points for determination are :

(1)'Whether the order dated 25.3.2011 passed in Crl.M.P.No.4438/2009 in

CC No.354/2008 on the file of XIV Additional Chief Metropolitan

Magistrate court, Hyderabad is correct and legal?'

5 (2)'Whether there are any sufficient grounds to set aside the order dated 25.3.2011 passed in Crl.M.P.No.4438/2009 in CC No.354/2008 on the file of XIV Additional Chief Metropolitan Magistrate court, Hyderabad as prayed for?'

9. Heard the learned counsel for the revision petitioners and the learned Public

Prosecutor for the respondent/complainant.

10.The petitioners herein are the petitioners/accused nos. 1 to 4 and 6 to 11.

The respondent herein is the respondent/complainant in Crl.M.P.No. 4438 of 2009 in CC No.354/2008 on the file of XIV Additional Chief

Metropolitan Magistrate court, Hyderabad. For the sake of convenience we refer the parties as they are arrayed before the trial court.

11.POINTS NOS. 1 AND 2 :- It is the contention of the learned counsel for the revision petitioners/accused nos. 1 to 4 and 6 to 11 that the allegations in the charge sheet are that the accused who are the employees of the Bharath Sanchar Nigam Limited have applied for housing loans separately and have obtained loan amounts separately and ultimately they have not constructed the houses and thereby they have cheated. In fact the accused Nos. 1 to 4 and 6 to 11 have not applied loans jointly. They have taken loans separately and they have began to construct their respective houses. But, they could not complete them. There is no intention of cheating. The petitioners are paying the loan installments regularly. Just because the petitioners are employees of Bharath Sanchar Nigam Limited, they cannot be tried together when there is no offence committed by them 6 jointly. So, charge sheeting the petitioners/accused nos. 1 to 4 and 6 to 11 in one charge sheet is not maintainable and therefore, the petitioners are entitled to discharge.

12.It is the contention of the learned Additional Public Prosecutor for the prosecution that the investigating agency has collected sufficient material to show that the accused have not constructed the houses even though they have obtained loans for constructing the houses by misrepresentation. So, they are liable for prosecution for the offence under section 420 of IPC.

Since, the accused have cheated Bharath Sanchar Nigam Limited they can be tried together. Hence, the application to discharge the accused was rightly dismissed by the trial court. Hence, the revision is liable to be dismissed.

13.It is an admitted fact that the petitioners/accused nos. 1 to 4 and 6 to 11 are employees of Bharath Sanchar Nigam Limited. It is also an admitted fact that they have applied for housing loan separately. It is the contention of the prosecution that they have obtained housing loans, but, accused have not constructed the houses, and that they have obtained loans with false representation with a view to cheat Bharath Sanchar Nigam Limited.

Whereas, it is the contention of the accused that there was no criminal intention for the accused to cheat Bharath Sanchar Nigam Limited and in fact they have began construction of the houses, but, they could not complete it and they are paying the loan installments. At this stage, we cannot conclude that the petitioners/accused nos. 1 to 4 and 6 to 11 have not committed any offence of cheating.

7 14.With regard to the trying of the accused together is concerned, it is the

Court trying the case has to decide. In a case between State of Punjab and another V. Rajesh Syal, reported in 2002 (2) ALD (Crl.) 782 (SC), on which the learned counsel for the petitioners/accused nos. 1 to 4 and 6 to 11 relied on, the the Honourable Supreme Court held that, “Before concluding, we would like to observe, with respect, that by directing that the order which was passed in V.K. Sharma's case should not be treated as a precedent implies that the said order is otherwise not in accordance with law and therefore should not be regarded as a precedent. This Court has ample jurisdiction to pass orders under Article 142(1) of the Constitution which may be necessary for doing complete justice in any case or matter. But even in exercising this power, it is more than doubtful that an order can be passed contrary to law. In V.K.Sharma's case, this Court did not purport to exercise any jurisdiction under Article 142. The decision to direct the applicant to file applications to be moved for consolidations of the cases pending in different Courts for different offences to be tried in a single Court was not in accordance with law, and the said decision of V.K.Sharma and that of P.K.Sharma are overruled.” 15.In view of the above decision, it is clear that the court cannot direct joint trial of different persons alleged to have been defrauded the same company.

In this case it is not the request of the accused that all the accused shall be tried in the same case by the same court. So, the above decision is not applicable to the present case.

16.In another case between R. Ramachandran V. Yerram Sesha Reddy and

Another reported in 1997(1) ALD (Crl.) 169 (A.P.), on which the learned counsel for the petitioners/accused nos. 1 to 4 and 6 to 11 relied on, the

Honourable High Court of Andhra Pradesh observed that,

8 “Section 223 Cr.P.C. is only an enabling provision. Each individual member of the community, is in the absence of exceptional authority conferred by the law to the contrary, entitled to have a separate trial. That is the right vested in the individual. In the eye of law each individual is a separate unit and his rights of liberty cannot, without express authority in the law, be dealt with jointly with those of other persons with whom, far from having community of interest, he may have incomparability of interest in matters of criminal nature. Therefore, on such general principle, in order to avoid any possibility. If prejudice to the accused and for ensuring a fair trial, which is always the paramount consideration, it is normally desirable that each accused be tried separately. There is no right vested in the accused to assert that a joint trial must be held along with his co-accused. If at all such a right or claim can be made, it can be by the prosecution, it is permissible for the prosecution to decline to array a person as a co-accused in the case. Thus looked at it will be seen that Section 223 Cr.P.C. is only a permissive section and not mandatory one, it permits joint trial. It does not do away with the normal rule that trial of each accused should be separate. In fact it is open for a Judge, i.e., the court in a joint trial also, to split the cases and hold separate trials for separate offences or against separate persons.” 17.In view of the above said decision, it is clear that Section 223 of Cr.P.C. is only a permissive section and not mandatory one. It does not do away with the normal rule of trial of each accused should be separate. In view of the above decision, it is clear that the trial court is at liberty to proceed with the joint trial of all the accused or to separate the accused and to held separate trials for separate offences or against separate persons.

18.In this case, the accused in their petition have not prayed for proceeding against them separately , but, they pleaded in their petition that prosecution was launched without complaint or proper sanction from the competent authority and that prosecution has failed to make out the prima face case against the petitioners/accused nos. 1 to 4 and 6 to 11. Since, in this case the 9 accused have applied for housing loans in their individual capacities and not as a part of their duties as employees of the Bharath Sanchar Nigam

Limited. Therefore, sanction under Section 197 of Cr.P.C. is not necessary.

At this stage, it cannot be said that the petitioners/accused nos. 1 to 4 and 6 to 11 have not committed any offence under section 420 of IPC. Therefore, the application filed by the petitioners/accused nos. 1 to 4 and 6 to 11 to discharge them for the offence under Section 420 IPC was rightly dismissed by the trial court on the ground that there is prima face case against the petitioners/accused nos. 1 to 4 and 6 to 11. Hence, these points Nos .1 and 2 are hereby answered against the revision petitioners/accused nos. 1 to 4 and 6 to 11.

19.In view of my finding on the points nos. 1 and 2, I hold that the revision petition is liable to be dismissed.

20.In the result, the revision petition is hereby dismissed.

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

pronounced by me in the open court, this the 10th day of July, 2012.

I ADDL. METROPOLITN SESSIONS JUDGE,

FACII ADDL. METROPOLITN SESSIONS JUDGE,

HYDERABAD.

BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL : CUM :

THE COURT OF THE XVI ADDL.CHIEF JUDGE : CUM : II ADDL. METROPOLITAN SESSIONS JUDGE: HYDERABAD.

Present : Sri.G.Lakshmipathi,M.Com,LL.B., I Addl.Metropolitan Sessions Judge, FAC.XVI Addl.Chief Judge :Cum: II Addl. Metropolitan Sessions Judge, Hyderabad.

Dated this the 13th day of July, 2012.

O.P.NO. 2872 / 2008

Between:-

Mohd.Lateef S/o Md.Khajamiya, aged about 35 years, Occ : Plumber, R/o 19-5-32/F/24/2, Mohmood Nagar, Near New Fun School, Kishanbagh,

Bahadurpura, Hyderabad. ..... Petitioner/Claimant.

A N D

1. A.P.S.R.T.C. Yemmiganoor Depot, Kurnool Dsit.

2. A.P.S.R.T.C. Rep. by its Managing Director,

Musheerabad, Hyderabad. .... Respondents.

This petition coming for final disposal before me in the presence of Sri.G.Brahmanand Reddy, Advocate for the Petitioner and Sri.G.Konda Reddy, learned standing counsel for Respondent No.1 and 2 and upon perusing the petition and counter filed by both parties and on hearing both sides, and having stood over for consideration, this court made the following :- :: O R D E R ::

1This is a claim petition filed by the petitioner under Section 166 of

Motor Vehicles Act, against the respondents 1 and 2, requesting this Tribunal to award an amount of Rs.5,00,000/- for the injuries sustained by the petitioner in a motor vehicles accident.

2The allegations in the verified petition filed by the petitioner in brier are that on 25.10.2008 at about 8.30 pm, the petitioner met with an accident in front of Band shop, Puranapool Darwaza, Hyderabad with RTC bus bearing

No.1472 of Yammiganur Depot, Kurnool District driven by its driver in rash and negligent manner and dashed the petitioner with high speed. Due to which the deceased received bleeding and fracture injuries on his left hand, right leg and ribs and also multiple injuries through out the body. Then, the petitioner was shifted to Osmania General Hospital, Hyderabad for treatment, where, he has under gone treatment. Hence, the claim petition.

3The allegations in the counter filed by the respondents in brief are that the allegations in the petition filed by the petitioner are not correct. The petitioners have to prove all the allegations in his petition. The police of

Hussaini Alam police station, Hyderabad has registered the case on the influence of the petitioner. Therefore, the petitioner has to prove the said registration of the case strictly. The amount of compensation as claimed by the petitioner is highly excessive. Hence, the petition is liable to be dismissed.

4Basing on the above pleadings the following issues were framed for trial:-

1. (1)Whether the accident on 25-10-2008, resulting in causing injuries to the petitioner, occurred due to rash and negligent driving on the part of the driver of APSRTC bus bearing registration no. AP 28Z 1472?

(2)Whether the petitioner is entitled for compensation, if so the quantum and whether both the respondents are jointly and severally liable, if not who among them are liable to pay the compensation?

(3)To what relief?

5On behalf of the petitioner, Pws 1 to 3 were examined and Exs.A1 to

A8 marked. On behalf of the respondent no witnesses were examined and no exhibits were marked.

6Heard the learned counsels of both sides on record.

7 ISSUE No.(1):-To prove that the pleaded accident was occurred due to rash and negligent driving of the driver of the RTC bus No. AP 28Z 1472, the petitioner has examined himself as Pw1 and has marked Exs.A1, A3 and

A4. In his evidence, the petitioner who examined as Pw1 has deposed that on 28.10.2010 at about 8.30 pm. when he was proceeding by walk at

Puranapool, APSRTC bus bearing no. AP 28Z 1472 driven by its driver in rash and negligent manner and dashed against the petitioner in front of Band Shop,

Puranapool, Hyderabad. As a result of which, he fell down and received bleeding and fracture injuries. Ex.A1, the copy of the first information report registered in crime no.187/2008 of Hussaini Alam police station, Hyderabad which was registered on the report preferred by one Mohd. Ghouse and

Ex.A3, the copy of the charge sheet of Hussaini Alam police station in the above crime filed by the Sub inspector of police, Hussaini Alam police station

before the Chief Metropolitan Magistrate Court Hyderabad shows that the

pleaded accident was occurred due to rash and negligent driving of the driver of the RTC bus no. AP 28Z 1472 which is the offending vehicle herein. So, the evidence of Pw1 is being corroborated with the contents of Exs.A1 and A3.

The respondents who are contesting the petition have not produced any evidence to rebut the evidence of Pw1 and the contents of Exs.A1 and A3.

Hence, with the evidence of Pw1 and with the contents of Exs.A1 and A3, this issue no.1 is hereby answered in favour of the petitioner and against the respondents.

8 ISSUE No.(2):-In view of my finding on the issue no.1, I hold that the pleaded accident was occurred due to rash and negligent driving of the driver of the offending RTC bus no. AP 28Z 1472 of the respondent's corporation. It is the contention of the petitioner that he sustained injuries in the pleaded accident. The petitioner also examined Dr. M.A. Waheed to prove the injuries sustained by him and in his evidence Pw2 has stated that the petitioner sustained injuries in the pleaded accident and his evidence is also supported by certified copies of the Medico Legal Certificate under Ex.A4. Since, the petitioner sustained injuries in the pleaded accident due to rash and negligent driving of the driver of the RTC bus, respondents being the representatives of the RTC are vicariously liable to pay compensation to the petitioner.

9In his evidence, Pw1 has stated that he sustained bleeding and fracture injuries in the pleaded accident. Pw2 Dr. M.A. Waheed, Orthopedic

Surgeon, Osmania General Hospital, Hyderabad, who treated the petitioner has deposed that the petitioner was admitted in Osmania General Hospital on 25.10.2008 and discharged on 30.12.2008. Surgeries were done on 14.11.2008 and 21.11.2008, (1) open reduction and internal fixation of right femur was done on 14.11.2008, (2) open reduction and internal fixation of fracture with bones of left fore arm was done on 21.11.2008, (3) by lateral inter coastal deanage tube was inserted on 28.11.2008. Other fractures were treated conservatively. All the surgeries were done by their Unit in Osmania

General Hospital i.e., Surgical Team including himself. He also deposed that the petitioner was suffering from permanent disability and he assessed the disability suffering by the petitioner at 40% and he issued Ex.A6, disability certificate. As per M.L.C. Ex.A4, at the time of admission of the petitioner in the hospital on 25.10.2008 the Doctors found one abrasion over left fore arm, deformity of left fore arm and right leg. The Ex.A4, (M.L.C.) and discharge summary and follow up card of the petitioner issued by the Osmania General

Hospital, Hyderabad shows that the petitioner was treated by the hospital under Rajiv Arogayasri Scheme and he was treated for six fractures including the fracture to ribs of 5th, 6th, 7th and 9th. So, we have to take that the petitioner sustained six fractures. Considering these six fractures sustained by the petitioner we can award Rs.90,000/- for six fractures at the rate of Rs.15,000/- for each fracture under the head “pain and suffering”. The petitioner has filed medical bills under Ex.A5 to a tune of Rs.3,805/-. Considering the injuries sustained by the petitioner we can accept the said medical bills filed by the petitioner as the bills that were paid by the petitioner even though he was treated under Arogyasri Pathakam. So, we can award Rs.3,805/- towards medical bills. As per the evidence of Pw2 and as per the disability certificate under Ex.A6 issued by him, the petitioner is suffering from 40% of permanent disability. As per the evidence of Pw2, two surgeries were done for the petitioner one to his left fore arm and another to his right leg by inserting rods.

So, we cannot conclude that the percentage of disability as assessed by Pw3 is not correct. In his evidence, Pw1 has stated that he is working as Plumber and earning Rs.8,000/- per month. Pw3, Mohd. Yakoob, Managing Partner of

M/s M.P. Endeco Builders and Developers, Hyderabad has deposed that the petitioner was working in their organization for the last eight years as Plumber and he was being paid Rs.8,000/- per month . But, this Pw3 has not produced any registers of his firm to show that his firm was paying Rs.8,000/- per month regularly to the petitioner for the last eight years prior to the accident as spoken to be him. But, considering the profession of the deceased as

Plumber, we can take his monthly income at Rs.3,000/-, then, his annual income must be Rs.36,000/-. The petitioner was aged 36 years as on the date of accident as per the MLC under Ex.A4. The multiplier that applies to a person aged between 35 and 40 years is 16. So, the compensation that can be awarded to the petitioner for the 40% of permanent disability suffering by the petitioner is Rs.36,000/- (annual income) X 16 (Multiplier) X 40/100 (Percentage of disability) = Rs.2,30,400/-. Since, the petitioner sustained six fractures we can award Rs.5,000/- towards transportation and another sum of

Rs.5,000/- towards attendant charges. So, the total compensation that can be awarded to the petitioner in this case is Rs.3,33,805/-. Hence, this issue no.2 is hereby answered accordingly.

10 ISSUE No.(3):-In view of my finding on issue nos. 1 and 2, the petition is to be allowed partly with proportionate costs by awarding compensation of Rs.3,33,805/- with interest at 7.5% per annum from the date of the petition till the date of realization payable by the respondents 1 and 2 jointly and severally to the petitioners.

11In the result, the petition is hereby allowed partly with proportionate costs by awarding compensation of Rs.3,33,805/- (Rupees Three Lakhs Thirty

Thousands Eight Hundred and five only) with interest at 7.5% per annum from the date of the petition till the date of realization payable by the respondents 1 and 2 jointly and severally to the petitioners. Advocate fee is fixed at

Rs.3,000/-. Immediately after deposit of the compensation amount by the respondents, the petitioner is entitled to withdraw Rs.1,33,805/- with entire interest and costs. The remaining compensation amount of Rs.2,00,000/- shall be kept in fixed deposit in any nationalized bank for a period of two years.

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

and pronounced by me in the open court, this the 13th day of July, 2012.

I ADDL.METROPOLITAN SESSIONS JUDGE,

FAC XVI ADDL.CHIEF JUDGE : CUM :

II ADDL.METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONERS:-

P.W.1:Mohd.Lateef. P.W.2:Dr.M.A.Waheed. P.W.3:Mohd.Yakub.

FOR RESPONDENTS:- NIL.

EXHIBITS MARKED

FOR PETITIONERS:-

Ex.A.1.Certified Copy of FIR along with complaint. Ex.A.2.Discharge Summary OGH. Ex.A.3.Certified Copy of Charge Sheet. Ex.A.4.Certified Copy of M.L.C. Ex.A.5.Medical bills. Ex.A.6.Disability certificate. Ex.A.7.Salary certificate. Ex.A.8. X-Ray with reports.

FOR RESPONDENTS:- NIL.

I ADDL.METROPOLITAN SESSIONS JUDGE,

FAC XVI ADDL.CHIEF JUDGE : CUM :

II ADDL.METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

D E C R E E

BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL : CUM :

THE COURT OF THE XVI ADDL.CHIEF JUDGE : CUM : II ADDL. METROPOLITAN SESSIONS JUDGE: HYDERABAD.

Present : Sri.G.Lakshmipathi,M.Com,LL.B., I Addl.Metropolitan Sessions Judge, FAC.XVI Addl.Chief Judge :Cum: II Addl. Metropolitan Sessions Judge, Hyderabad.

Dated this the 13th day of July, 2012.

O.P.NO. 2872 / 2008

Between:-

Mohd.Lateef S/o Md.Khajamiya, aged about 35 years, Occ : Plumber, R/o 19-5-32/F/24/2, Mohmood Nagar, Near New Fun School, Kishanbagh,

Bahadurpura, Hyderabad. ..... Petitioner/Claimant.

A N D

1. A.P.S.R.T.C. Yemmiganoor Depot, Kurnool Dsit.

2. A.P.S.R.T.C. Rep. by its Managing Director,

Musheerabad, Hyderabad. .... Respondents.

CLAIM: Petition filed U/sec.166 of M.V.Act. 1988 and Rule 455 of A.P.M.V.Rules 1989 R/W Sec.163-A, of M.V.Act. for compensation of Rs.5,00,000/- for injuries of the petitioner occurred 25.10.2008 at about 8.30 pm in front of Band Shop, Puranapool Darwaza vide in cr.No.187/08 of PS.Hussainialam, Hyderabad.

Valuation:- Petition is valued Rs.5,00.000/- and paid C.F.4,360/- O.P. Filed on 5.11.2008 O.P. Numbered on: 22.12.2008.

This petition coming for final hearing before me in the presence of Sri.G.Bramanand Reddy, Advocate for the Petitioner and Sri.G.Konda Reddy, Learned Standing Counsel for the Respondent No:1 and 2 and the matter having been stood over for consideration till this day the Court Doth Order and Decree as under :- 1 That the petition in OP.No.2872/08 be and the same is hereby partly allowed with proportionate costs against R.1 and R.2.

2 That the petitioners are be and hereby awarded total compensation of Rs.3,33,805/- (Rupees Three Lakhs Thirty Thousands Eight Hundred and five only) with interest at 7.5% per annum from the date of the petition till the date of realization payable by the respondents 1 and 2 jointly and severally to the petitioners.

3Immediately after deposit of the compensation amount by the respondents, the petitioner is entitled to withdraw Rs.1,33,805/- with entire interest and costs. The remaining compensation amount of Rs.2,00,000/- shall be kept in fixed deposit in any nationalized bank for a period of two years.

4The Respondents do also pay a sum of Rs.7,313/- towards proportionate costs to the petitioner.

5That the advocate fee is fixed Rs.3,000/-.

Given under my hand and seal of this court, on this the 13th day of July, 2012.

I ADDL.METROPOLITAN SESSIONS JUDGE,

FAC XVI ADDL.CHIEF JUDGE : CUM :

II ADDL.METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

PARTICULARS OF COSTS

For the Petitioner: For the Respondents:

R.1 and R.2 Stamp on Petition 4360-00 2/- Stamp on Vakalat 2-00 Process fee 110-00 Advocate fee 3000-00 Publication Charges - Stamp on exhibits 3-00 Commissioner's fee 1500-00 TOTAL 8975-00 2/-

Proportionate costs allowed Rs.7,313/- FC&MC filed.

I ADDL.METROPOLITAN SESSIONS JUDGE,

FAC XVI ADDL.CHIEF JUDGE : CUM :

II ADDL.METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

NOTE : Court fee of Rs.4,360/- paid vide SR.No.229/2012, dt.17.7.2012.

1

IN THE COURT OF THE II ADDITIONAL METROPOLITAN SESSIONS JUDGE,

HYDERABAD:

Dated this the Thirteenth day of July, 2012.

PRESENT: Sri G.Laskhmipathi, M.Com., LL.B., I Additional Metropolitan Sessions Judge, FAC II Additional Metropolitan Sessions Judge, Hyderabad.

CRIMINAL APPEAL NO.285/2012

From what court this appeal is : III Metropolitan Magistrate Court, Preferred Hyderabad.

Number of the case in that Court : Crl.M.P.115/2012 in D.V.C.No.2/2012

Number of the appeal : Criminal Appeal No.285/2012

Name and description of the : Smt C.Madhu Bala W/o Bhogireddy Appellant. Bala Subba Rao, Age 41 years, Occ: Bank employee, R/o Plot no.201, Rekha Delux Apartments, Panjagutta Hyderabad.

Name and description of the : Bhogireddy Bala Subba Rao, Respondent S/o Late Veerabhadra Rao, Age 52 Years, Occupation: Bank employee, R/o 27-4-10, Tadankavari Street, Bandar Road, Vijayawada, Krishna District.

The sentence and law under : The petition filed by the petitioner which conviction was imposed under Section 23 of court: in the lower Protection of Women from Domestic Violence Act is dismissed by the III M.M.Hyd., dated 20.3.2012.

Whether confirmed, modified or, : Remand to trial court. Reversed if, modified the :In the result, the appeal preferred by the appellant/aggrieved person/ petitioner is allowed partly and the order dated 20.3.2012 passed in

Crl.M.P.no.115/2012 in DVC.2/2012 on

the file of III Metropolitan Magistrate Court, Hyderabad is hereby set aside and the said petition is hereby remanded to the trial court for fresh consideration by taking into consideration of the order dated 2 23.12.11 passed inCrl.M.P.No.1546/11 in D.V.C.No.178/2011 on the file of IV Metropolitan Magistrate Hyderabad In which court the DVC case was originally filed, after giving opportunity to both the parties for submitting their contentions.

DATE OF OR ON WHICH

Presentation:10-04-2012 Filing:10-04-2012 Notice issued by Court to appear:11-04-2012 Bail bond if appellant is let out on Bail --- Appellant ordered to appear :03-05-2012 Hearing :10-07-2012

Judgement/order:13-07-2012

This appeal coming on for hearing before me upon perusing the petition of appeal and the record of evidence and proceedings and upon duly considering the same after hearing of Sri C.V.L.Narasimha Rao, Advocate for the appellant and of Sri R.Rama Brahmma, Advocate for the respondent, this Court made the following:-

ORDER

1. This is a criminal appeal filed by the appellant/aggrieved person/petitioner against the order dated 20.3.2012 passed in Crl.M.P.no.115/2012 in Domestic

Violence Case No.2/2012 on the file of III Metropolitan Magistrate Court,

Hyderabad.

2. The appellant herein is the petitioner and the respondent herein is the respondent in Crl.M.P.no.115/2012 in D.V.C.No.2/2012 on the file of III

Metropolitan Magistrate, Hyderabad.

3

3. The petitioner in the above said Crl.M.P.no.115/2012 has filed the said petition under Section 23 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as Domestic Violence Act), requesting the trial court to pass Protection-Orders in favour of the petitioner against respondent restraining the respondent from threatening, abusing and stopping the petitioner from her free movements. The allegations of the affidavit of the of the petitioner filed in support of the petition in brief are that after the petitioner filing a petition for divorce against the respondent the respondent who is the husband of the petitioner has intensified his threats against the petitioner by abusing her whenever she goes to attend the Family Court in the divorce case. In that connection, she also gave complaints to Deputy

Commissioner of Police, West Zone, Hyderabad on 26.5.2009 and a complaint also given to Women Protection Cell, Hyderabad, dated 17.5.2011. The respondent is also making visits to the bank where she is working and stating stories to the staff defaming and humiliating the petitioner. The petitioner also adopting illegal methods including sending people to the house of the mother of the petitioner making false statements associates only with an intention to terrorize the petitioner and psychologically killing her. Hence, the petitioner requires protection order.

4. The respondent filed counter to the petition filed by the petitioner. The allegations of the in brief are that the allegations in the affidavit of the petitioner filed in support of her petition are not correct and was untenable.

The petitioner has to prove the allegations in her petition. The petitioner has no right to file the present petition, as the petitioner has already filed a petition for divorce in O.P.No.1297/2010 on the file of Family Court, City Civil 4

Court, Hyderabad as well as Domestic Violence Case. The petitioner has given false complaint to the police against the respondent. All the allegations in the petition filed by the petitioner are false. There are no iota of truth in the allegations in her affidavit filed in support of the petition. Hence, the petition is liable to be dismissed.

5. The trial court after hearing the learned Counsels of both parties on record has dismissed the petition filed by the petitioner.

6. Aggrieved by the said order of the trial court, the petitioner in the said petition filed the present appeal on the following grounds:

The trial court erroneously observed that the petition filed by the petitioner is not maintainable. The trial court erred in making finding that no piece of documents filed with regard to the threats given by the respondent to the petitioner while attending to Family Court at Hyderabad in connection with divorce case filed by her and also visits of the respondent to her bank etc. The trial court has observed several cases in its judgement. Those observations are absolutely not related to the prayer of the petitioner for the relief of granting orders for her protection. If the Protection-Order required to the petitioner is given to the petitioner there would be no prejudice caused to the respondent or effect the main case, but, still the trial court made several other observations which not only effect the main case of the Domestic

Violence case filed by the petitioner also divorce case filed by the petitioner including her character which is totally unwarranted and uncalled for. Hence, the appeal.

5

7. Now the points for determination are :

(1)”Whether there are any sufficient grounds to allow the petition filed in

Crl.m.P.No.115/2012 in D.V.C.No.2/2012 on the file of III Metropolitan

Magistrate Court, Hyderabad?”

(2)”Whether there are sufficient grounds to set aside the order dated 20.3.2012 passed in Crl.M.P.No.115/2012 in D.V.C.No.2/2012 on the file of III Metropolitan Magistrate Court as prayed for?”

8. The appellant herein is the petitioner/aggrieved person and the respondent herein is the respondent in Crl.M.P.No.115/2012 in D.V.C.No.2/2012 on the file of III Metropolitan Magistrate Court, Hyderabad. For the sake of convenience we refer the parties as they are arrayed before the trial court.

9. Heard the learned Counsels of both parties on record.

10.POINTS NOS.(1) AND (2) :-It is the contention of the learned counsel for the appellant/aggrieved person/petitioner, that the petitioner requested the trial court to provide protection to her from the respondent since the respondent is making visits to the place of working of the appellant/aggrieved person/petitioner and telling stories to the staff members of the petitioner with a view to defame her and also harass her and respondent is also sending people to her mother's house etc., and without orders of protection, it is not possible for the petitioner to prosecute her divorce case before the Family-

Court and also Domestic Violence Case before the trial court. The trial court instead of passing orders in favour of the petitioner for protection has made several unwarranted comments in the order and found fault with the petitioner for not approaching the police. It is also the contention of the 6 learned counsel for the appellant/aggrieved person/petitioner that the petitioner has filed a petition for protection orders at the time of filing of

Domestic Violence Act itself and the said petition was also allowed, but, the trial court has not notified the said orders to the petitioner. Without knowing about the passing of the orders of the protection orders in favour of the petitioner, the petitioner again filed this petition. The trial court also without looking into the previous orders has dismissed the petition with unwarranted observations. Hence, the same is liable to be dismissed.

11.It is the contention of the learned counsel for the respondent that the observations made by the trial court are correct. There is no need to interfere with the said observations of the trial court. The petitioner has filed a petition for transfer of the Domestic Violence Case from the trial court to some other court. Without disclosing the said fact, the petitioner has filed the present appeal. There are no sufficient grounds to pass Protection-Orders in favour of the petitioner. Therefore, the trial court has rightly dismissed the petition filed by the petitioner. Hence, the appeal is liable to be dismissed.

12.Originally the Domestic Violence Case was filed before the IV Metropolitan

Magistrate Court, Hyderabad and it was numbered as D.V.C.No.178/2011 on

the file of IV Metropolitan Magistrate Court, Hyderabad. Subsequently, it was transferred to the Court of III Metropolitan Magistrate Court, Hyderabad and renumbered as D.V.C.No.2/.2012. On perusal of the case record, it shows that at the time of filing of domestic violence case in D.V.C.No.178/2011 on the file of IV Metropolitan Magistrate, Hyderabad, the petitioner has also filed a petition for protection and the same was registered as Crl.M.P.No.1546/2012 7 and in that petition, the trial court has granted protection-Order under Section 18 of Domestic Violence Act. It is the contention of the petitioner that there was no intimation of the said order to the appellant /aggrieved person/ petitioner, that is why the appellant/aggrieved person/petitioner has filed the present petition for protection order. The trial court in its order dated 20.3.2012 in Crl.M.P.No.115/2012 has observed that, "It is prima facie established that children are unable to recognize their father also as they are kept in darkness and failed to be shown to the father. It appears petitioner is quite content after abandoning the respondent. All these questions will be decided in the regular trial but not at this stage. This court is declined to grant any type of protection order in view of the peculiar facts and circumstances of the case." 13.By observing as above, the trial court has dismissed the petition filed by the appellant/aggrieved person/petitioner.

14.The trial court has given the above said observations without there being any acceptable evidence on record. Only basing on the allegations in the counter filed by the respondent in the main Domestic Violence Case, it has observed as noted above.

15.As per Section 18 of Protection of Women from Domestic Violence Act, 2005.

The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from doing certain acts.

8 16.As per Section 23 of Protection of Women from Domestic Violence Act, 2005, "the Magistrate may pass such interim order as he deems just and proper." 17.When the petitioner filed a petition under Section 23 of Domestic Violence

Act along with the domestic violence case the trial court has passed

Protection-Order directly under Section 18 of Domestic Violence Act in

Crl.M.P.No.1546/2011 on 23.12.2011. Subsequently, the said domestic

violence case no.178/2011 was transfered from IV Metropolitan Magistrate

Court, Hyderabad to III Metropolitan Magistrate Court, Hyderabad which is the present trial court. The petitioner again filed a petition under Section 23 of

Domestic Violence Act and the present trial court without verifying the case record which contains the order under Section 18 of Domestic Violence Act in

Crl.M.P.No.1546/2011 the trial court has again passed the order, rejecting the

request of the petitioner for interim protection. The protection order that was passed by the Learned IV Metropolitan Magistrate, Hyderabad in the same domestic violence case in Crl.M.P.No.1546/2011 on 23.12.2011 was not set aside and it is still subsisting. Therefore, when there is an order under Section 18 of Domestic Violence Act in Crl.M.P.No.1546/2011 against the respondent and in favour of the petitioner, passing orders in the present petition filed by the appellant/aggrieved person/petitioner by the trial court is not correct.

Therefore, the orders of the trial court in Crl.M.P.No.115/2012 is liable to be set aside and the petition is to be remanded to the trial court to have reconsideration of the matter taking into consideration of the order dated 23.12.2011 already passed in Crl.M.P.No.1546/2011 by the learned IV

Metropolitan Magistrate, Hyderabad. Hence, these points nos. 1 and 2 are hereby answered accordingly.

9 18.In view of my finding on the points 1 and 2, the appeal proffered by the appellant is to be allowed partly and the order of the trial court is to be set aside and the petition is to be remanded to the trial court for fresh consideration in accordance with law.

19.In the result, the appeal preferred by the appellant/aggrieved person/petitioner is allowed partly and the order dated 20.3.2012 passed in

Crl.M.P.no.115/2012 in DVC.2/2012 on the file of III Metropolitan Magistrate

Court, Hyderabad is hereby set aside and the said petition is hereby remanded to the trial court for fresh consideration by taking into consideration of the order dated 23.12.2011 passed in Crl.M.P.No.1546/2011 in D.V.C.No.178/2011 on the file of IV Metropolitan Magistrate Hyderabad In which court the DVC case was originally filed, after giving opportunity to both the parties for submitting their contentions.

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

pronounced by me in the open Court, this the 13th day of July, 2012.

I ADDL. METROPOLITAN SESSIONS JUDGE,

FAC II ADDL. METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

Fair Judgment in SC No.43 of 2012 1

IN THE COURT OF THE II ADDITIONAL METROPOLITAN SESSIONS JUDGE:

AT HYDERABAD

Present: Sri.D.Dharma Rao, B.Com.,LLM II Addl. Metropolitan Sessions Judge, Hyderabad.

WEDNESDAY, THE 3RD DAY OF DECEMBER, 2014

SESSIONS CASE NO. 43 OF 2012

(in PRC No. 82 OF 2011)

Committed by : Sri. Md. Mozamuddin, VII Additional Chief Metropolitan

Magistrate, Hyderabad.

Crime Number and Police Station: 63 of 2011 of Santoshnagar Police Station, Hyderabad.

Name and description of the accused :(1)Mohd. Imran s/o Mohd Abdul Hakeem, age 28 years, Occ business, r/o H No 16-6- 582/A, Osmanpura, Chaderghat, Hyderabad.

(2)Mohd Shahed Asad s/o late M.M. Khaled, age 23 years, Occ Auto driver, r/o Plot No 96, Balapur Royal Colony, Pahadishareef, Saroornagar, R.R. District.

Name and description of the : The State of AP represented by the complainant Sub Inspector of Police, Santoshnagar Police Station, Hyderabad.

Prosecution conducted by : Sri.Gopal Singh,Public Prosecutor

Accused defended by : Sri S.M Deshmukh, Advocate for A.1 : Sri. R.G. Shiv Kumar, Advocate for A.2

Offence charged : Under sections 302 IPC and section 25 (1) (A) of Indian Arms Act. Plea of the accused: Not Guilty

Finding of the Court: Not Guilty

Result : The accused 1 and 2 are found not guilty for the offence under section 302 IPC and under section 25 (1) (A) of Indian Arms Act and thereby acquitted under section 232 CrPC. The bail bonds of the accused 1 and 2 shall stand canceled. The unmarked case property, if any, shall be destroyed after expiry of appeal time.

Fair Judgment in SC No.43 of 2012 2

J U D G M E N T

1The Sub Inspector of Police, P.S. Santoshnagar, Hyderabad, has laid charge sheet in Crime No 82 of 2011 for the offences under sections 302 IPC and section 25 (1) (A) of the Arms Act against A1 & A2.

2The averments of the charge sheet in brief are as follows:

On 11-04-2011, as per the instructions, the LW.1-S. Jaihind Kumar, PC along with LW.2-Sarveshwar Naik, Home Guard 6121 have performed patrolling on the

BC-II, in the area of Sector III viz Rajanarsimha colony, Bharatha Ratna colony,

Rakshapuram, Habeebnagar and in the Sector II viz Riyasath nagar and Moinbagh till 1.00 am on 12-04-2011.

on 12-04-2011 till ti 2.00 am, they performed patrolling duty in the area of

Rakshapuram and when they reached in front of the house bearing No 18-8- 254/A/1/20 of Bharata Ratna colony, noticed one person lying in a pool of blood, they went near to the body and found the neck was slit and lying dead and they also noticed one big knife on the left side of the waist of the dead person and that on search, they found one ZTE (MTS Mobile) phone in his pant pocket and the head facing towards north and legs towards south lying in supline position.

Basing on his complaint, Lw.19 Sri B. Sudarshan Reddy, Inspector of police registered a case in Crime No 63 of 2011 under Sections 302 IPC and 25 (1) (B) of

Arms Act. During the course of investigation, he visited the scene of offence and found the dead body of deceased lying in a pool of blood with neck cut injury and secured the presence of mediators L.Ws 10 and 11 Sri Shaik Ifthekar Ahmed and Sri

Shaik Mohammed Muzafar, drafted the scene of offence observation panchanama and seized one iron pipe, one big knife from the scene and photographed the scene and shifted the dead body to the mortuary of Osmania General Hospital for identification and inquest and that he contacted with some phone numbers of deceased and confirmed his details, intimated to his family members and the deceased was identified

Fair Judgment in SC No.43 of 2012 3 as Syed Shabbir Ahmed.

As per the instructions of LW.19, LW.18-Sri N. Yadaiah, Addl., Inspector of

Police conducted inquest over the dead body of deceased in the presence of mediators – L.Ws 12 & 13 – Syed Ibrahim and V. Raghav and after that seized the blood stained clothes before the mediators and thereafter, subjected the dead body for

Post Mortem Examination and that LW.16 Sri G. Deva Raju, Medical Officer conducted autopsy over the dead body and issued PME report opined that the cause of death was due to “cut throat injury”.

On 12-04-2011, at 13.30 hours, on receipt of credible information, the LW.19 along with LW.18 and other ID party men apprehended the accused No 1 Mohd Imran and accused No 2 Mohd Shahed Asad and brought them to police station along with one Honda Activa bearing No AP 28 DT 6285 and on interrogation, they confessed to have committed the offence and that he secured the presence of mediators-L.ws 14 & 15 Saber Amudi and Saud Ahmed Bin Mahfooz and recorded their confessional statements and that the accused were brought o the police station, effected their arrest and were remanded to judicial custody. Hence, the charge sheet.

3Cognizance of the case was taken for the offence under sections 302

IPC and section 25 (1) (b) of Arms Act against A1 and A2 and numbered the same as

PRC 82 of 2013 on the file of VII Addl. Chief Metropolitan Magistrate, Hyderabad. On appearance of the accused, copies of the documents were furnished to them as contemplated under section 207 CrPC before the trial court. Since the offence punishable under section 302 IPC is exclusively triable by the Court of Sessions, the learned Magistrate has committed the case to the Metropolitan Sessions Judge,

Sessions Division, Hyderabad, by following the due procedure contemplated under

section 209 CrPC.

4.The case was registered as S.C.No. 43 of 2012 by the Honourable

Metropolitan Sessions Judge, Hyderabad, and made over the same to this court for disposal according to law.

Fair Judgment in SC No.43 of 2012 4 5On appearance of the accused 1 and 2 before this Court and upon hearing both sides, charges under sections 302 IPC and section 25 (1) (A) of Arms Act are framed against them, read over and explained to them wherein they denied the offences and claimed to be tried.

6During trial, the prosecution has examined Pws 1 to 9 and got marked

Exs.P1 to P13. The learned Addl., Public Prosecutor, has given up the evidence of

Lws Lws 6, 7, 9, 13, 16 to 19 on the ground that since P.Ws 1 to 9, being material witnesses, did not support the case of the prosecution, examination of other witnesses will not improve the case. After completion of the evidence of prosecution witnesses, as there are no incriminating circumstances, found against the accused 1 and 2 in the evidence of P.Ws 1 to 9, examination of the accused under section 313 CrPC is dispensed with.

7Now the point for consideration is :

“Whether the prosecution has proved the guilt of the accused 1 and 2 for the offences punishable under sections 302 IPC and 25 (1) (A) of Indian Arms Act beyond all reasonable doubt?” 8POINT:-

To substantiate the guilt of the accused for the offences under section 302 IPC and section 25 (1) (A) of Arms Act, the prosecution has to establish beyond all reasonable doubt that A1 and A2, on the intervening night of 11/12-04-2011, murdered the deceased - Syed Shabbir Ahmed with a hunting sickle in front of a house bearing

Door No 18-8-254/A/1/20 of Bharata Ratna colony, Santoshnagar, Hyderabad.

(a)One S. Jaihind Kumar, PC 8042 of PS Santhoshnagar examined as

PW.1 mainly stated as to the fact that on 11-04-2011 while he was on patrolling duty in Sector-III at Rakshapuram and Habeebnagar areas. At about 2.00

AM, in the intervening night of 11/12/-04-2011 found the dead body of a male person in front of the house bearing Door No 18-8-254/A/1/20 of Bharata Ratna colony,

Santoshnagar, Hyderabad. He further stated that they observed a deep cut injury on

Fair Judgment in SC No.43 of 2012 5 the neck portion of said deadbody with bleeding injury in the surrounding. On that, he informed the said fact to the Station House Officer PS Santoshnagar through VHF set later, he lodged a complaint. Ex.P.1 is the said complaint.

(b)Syed Khadeer examined as PfW.2. According to PW.2, the deceased is the son of his sister and that he does not know about the case and where the deceased was living.

(c)One Syed Zameen Ahmed also deposed that the deceased is the son of his sister and that he does not know anything about the deceased and where the deceased was living about 3 years ago. He came to know about the death of the deceased.

(d)One Abed Mirza examined as PW.4 stated that he does not know anything about this case and the reason for the death of the deceased.

(e)One Mohd Minhajuddin examined as PW.5also stated he does not know the accused and that he does not know anything about the facts of the case.

(f)One Shaik Iftheqar Ahmed examined as PW.6 and one Shaik

Mohammed Muzaffar examined as PW.7 stated that police obtaind their signatures on some papers and except that they do not know anything about the case. In fact, according to the case of the prosecution, P.Ws 6 and 7 are the panch witnesses for the observation of scene of offence and seizure of the material objects. The signatures of

P.Ws 6 and 7 on observation report and rough sketch marked as Exs.P.6 to P.9.

(g)One saber Amudi and one Saud Ahmed Bin Mahfooz examined as P.Ws 8 and 9 stated that they went to the police station in connection with the detention of their vehicles, on that police obtained their signatures on some blank white papers and that they do not know the accused. P.Ws 8 and 9 further stated that they have not seen the accused in the police station also. The signatures of P.Ws 8 and 9, on the confession cum seizure panchanama of A1 and A2, are marked as Exs.P.10 to P.13.

According to the case of the prosecution, P.Ws 8 and 9 are the panch witnesses for confession of A1 and A2 and seizure of material objects in pursuance of the said confession. This is all what the evidence of P.Ws 1 to 9. Section 161 CrPC statements

Fair Judgment in SC No.43 of 2012 6 of P.Ws 2 to 5 marked as Exs.P.2 to P.5, respectively. When the evidence of P.Ws 1 to 9 carefully examined they have not stated anything against the accused as to the offences punishable under sections 302 IIPC and 25 (1) (b) of Arms Act. The evidence of PW.1 is that he just found the dead body in front of the house bearing Door No 18-8- 254/A/1/20, and later submitted Ex.P.1 complaint. From this evidence of PW.1, it is not at all possible to connect the accused with the offences. P.Ws 2 to 9 did not support the case of the prosecution and they totally turned hostile. For that reason, the learned Addl., Public Prosecutor has given up the evidence of other witnesses.

Therefore, from the evidence on record, there is nothing against the accused to connect them with the offences punishable under section 302 IPC and section 25 (1)

(b) of Arms Act. Hence, the prosecution failed to establish the guilt of the accused for the offences punishable under section 302 IPC and section 25 (1) (b) of Arms Act beyond all reasonable doubt. Hence, the accused are liable to be acquitted. The point is answered accordingly.

10In the result, the accused 1 and 2 are found not guilty for the offence under section 302 IPC and under section 25 (1) (b) of Indian Arms Act and thereby acquitted under section 232 CrPC. The bail bonds of the accused 1 and 2 shall stand canceled. The unmarked case property, if any, shall be destroyed after expiry of appeal time.

Dictated by me, transcribed by Personal Assistant, corrected and

pronounced by me in the open court, on this the 3rd day of December, 2014.

II ADDL.METROPOLITAN SESSIONS JUDGE

HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR PROSECUTION: PW.1 S. Jaihind Kumar, complainant. PW.2Syed Khadeer, Circumstantial witness. PW.3 Syed Zameel Ahmed, Circumstantial witness. PW.4Obed Mirza, Circumstantial witness. PW.5Mohd Minhajuddin, Circumstantial witness. PW.6Shaik Ifthekar Ahmed, Panch for scene of offence and seizure. PW.7Shaik Mohammed Muzafar, Panch for scene of offence and seizure.

Fair Judgment in SC No.43 of 2012 7

PW.8Saber Amudi, Panch for confessional cum seizure panchanama of A1 & A2. PW.9Saud Ahmed Bin Mahfooz, Panch for confessional cum seizure panchanama of A1 & A2.

WITNESSES EXAMINED FOR DEFENCE: Nil EXHIBITS MARKED FOR PROSECUTION: Ex.P.1 Complaint. Ex.P.2 161 CrPC statement of PW2. Ex.P.3 161 CrPC statement of PW3. Ex.P.4161 CrPC statement of PW4. Ex.P.5161 CrPC statement of PW5. Ex.P.6Three Signatures of PW6 on scene of offence observation panchanama. Ex.P.7Signature of PW.6 on rough sketch. Ex.P.8 Three signatures of PW.7 on the scene of offence observation pancvhanama. Ex.P.9Signature of PW.7 on rough sketch. Ex.P.10Four signatures of PW.8 on confession cum seizure panchanama of A1. Ex.P.11Two signatures of PW.8 on confession cum seizure panchanama of A2. Ex.P.12Four signatures of PW.9 on confession cum seizure panchanama of A1. Ex.P.13Two signatures of PW.9 on confession cum seizure panchanama of A2.

EXHIBITS MARKED FOR DEFENCE: NIL MATERIAL OBJECTS MARKED: NIL

II ADDL.METROPOLITAN SESSIONS JUDGE

HYDERABAD.