Smt. D. Sreedevi, Iii Ajfcm, Rjvm

1CC No.268/2016 dated 16.03.2020

IN THE COURT OF THE III ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS

CUM- JUNIOR CIVIL JUDGE :: RAJAMAHENDRAVARAM.

PRESENT : Smt. D.Sreedevi, III Addl. Judl. Magistrate of First Class, Rajahmahendravaram.

Monday, 16th day of March, 2020

C.C.No. 268 /2016

Between

Barla Babu Rao, S/o. Appa Rao, Hindu, aged 49 years, Business, D.NO.73-12-3/3, Narayanapuram,

Rajahmundry. ... Complainant

AND

Bandaru Satyanarayana Raju, S/o. Valli Babu, Hindu, aged 52 years, Business, D.NO.10-60, Sivaji Street,

Jaggampeta, E.G.Dt.... Accused

This case is coming on this day before me for final hearing on 25.02.2020 in the presence of Sri S. Kumar, Advocate for the Complainant and of P. Ramesh, D.RajaRatnam Advocates for the Accused and the matter having stood over for consideration till this day, the Court delivered the following:

J U D G M E N T

1.This is a complaint filed on behalf of the complainant against the accused for the offence punishable U/Sec.138 and 142 of Negotiable

Instruments Act ( for easy reference it will be referred as NI Act hereinafter).

2.The case of the complainant in brief is as follows:

The accused borrowed a sum of Rs.6,00,000/- (Rupees Six Lakhs only) from the complainant on 21-04-2016 for business purpose and agreed to repay the sum with interest @24% per annum either to the complainant or to his order on demand. Thereafter, on repeated demands made by the complainant, the accused issued a cheque bearing No.382940 dt:25.04.2016 drawn on State Bank of India, Jaggampeta branch, Jaggampeta for

Rs.6,00,000/- towards the part payment of the said promissory note in favour of the complainant. Then the complainant presented the said cheque in his account in Karur vysya bank Limited, Rajahmundry for collection on 26.04.2016 and the same was returned with an endorsement “Funds insufficient” in the account of the accused. The complainant got issued a statutory notice dt:29.04.2016 to accused U/s 138 of Negotiable

Instruments Act calling upon him to pay the amount due under the dishonoured cheque and accused received the notice, but failed to pay the cheque amount and hence the accused has committed the offence U/Sec.138 of Negotiable Instruments Act. Hence, the complainant filed the complaint.

3.This case was taken on file U/Sec.138 of Negotiable Instruments Act 1881 against the accused and the above case is numbered as

CC.No.268/2016.

4.On appearance of accused copies were furnished to the accused as contemplated U/Sec.207 of Cr.P.C.

5.Accused is examined U/Sec.251 of Cr.P.C. The sum and substance of accusation alleged against accused is read over and explained to him in

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

6.To prove the case, during the course of trial, the complainant himself examined as P.W.1. On behalf of P.W.1, he got marked Ex.P1 to Ex.P7. Ex.P1 is the cheque dt.25.04.2016, Ex.P2 is the original cheque return memo dt.26-04-2016, Ex.P3 is the Office copy of legal notice, dt.29.04.2016, Ex.P4 is acknowledgement, Ex.P5 is Certified copy of promissory note dt.21-04- 2016, Ex.P6 is the certified copy of decree in O.S.275/2016 on the file of

Principle Senior Civil Judge, Rajahmundry, Ex.P7 is the certified copy of 3CC No.268/2016 dated 16.03.2020 judgment in O.S.275/2016 on the file of Principle Senior Civil Judge,

Rajahmundry.

7.After completion of complainant evidence, the accused was examined

U/sec.313 of Cr.P.C by explaining the incriminating material stood against him for which the accused reported no defence evidence.

8. Heard the arguments submitted by both the complainant and accused.

Perused the entire material available on record.

9. Now the point for consideration is:

1. “Whether the complainant has proved the Ex.P5 promissory note transaction between the complainant and the accused”?

2.“Whether Ex.P1 cheque was given by the accused to the complainant in discharge of legally enforceable debt”. towards the existing or legally enforceable debt covered under Ex.P5 promissory note.”?

3. “Whether the complainant is able to bring home the guilt of the accused for the offence punishable U/Sec.138 of Negotiable

Instruments Act”?

10.The counsel for the complainant argued that the testimony of

P.W.1 coupled with Ex.P1 to Ex.P7 clearly proves that there is a legally enforceable debt between the complainant and the accused and the cheque

Ex.P1 was given by the accused to the complainant towards the discharge of the debt under Ex.P5 promissory note and the said cheque was dishonoured for the reason insufficient funds and further contended that the complainant had complied the mandatory provisions contemplated under the section 138 of N.I. Act and hence prayed the court to convict the accused.

11.On the other hand the counsel for the accused vehemently contended that there is no legally enforceable debt between the complainant and the accused and hence prayed the court to acquit the accused.

12. POINT N0.1 : The complainant in order to prove his case he himself got examined as P.W.1 and reiterated the contents of the complaint.

He deposed that the accused borrowed a sum of Rs.6,00,000/- (Rupees Six

Lakhs only) from him on 21.04.2016 for the purpose of his Business and agreed to repay the same with interest @24% per annum either to him or to his order on demand. Thereafter, on repeated demands made by him the accused issued a cheque bearing No.382940 dt:25.04.2016 drawn on State

Bank of India, Jaggampeta Branch, for Rs.6,00,000/- towards the part payment of the said promissory note in favour of him. Then he presented the said cheque in his account in Karur Vysya Bank Limited,

Rajamahendravaram for collection on 26.04.2016 and the same was returned with an endorsement “Funds insufficient” in the account of the accused. Then he got issued a statutory legal notice dt:29.04.2016 to the accused calling upon him to pay the amount due under the above dishonoured cheque within 15 days of receipt of the said notice. The accused received the notice, but the accused did not pay the cheque amount and hence the accused has committed the offence U/Sec.138 of Negotiable

Instruments Act. Hence, he filed the complaint. During cross examination

P.W.1 stated that he is an income tax assessee and all the financial transactions entered by him are reflected in his income tax returns. P.W.1 further stated that he got acquaintance with accused through his brother-in- law and he is doing finance business and he is paying income tax for his finance business. P.W.1 further admitted that his income tax returns filed in the assessment year 2017 reflects the loan given by him to the accused. He 5CC No.268/2016 dated 16.03.2020 further admitted that there is no license for his finance business. He denied the suggestion that running finance business without license is an offence and he filed the present case against the accused with malafide intention for wrongful gains.

13.On perusal of entire cross examination of P.W.1 the counsel for the accused did not put a single suggestion to P.W.1 that the signature on Ex.P5 promissory note does not belongs to the accused. The accused also did not deny his signature on the promissory note either during his examination under the section 251 Cr.P.C. or during his examination under the section 313 of Cr.P.C. This court is relying upon the decision reported in Muddasani

Venkata Narasaiah Vs Muddasani Sarojana 2016(4) PLJR SC 227 the

Supreme court had considered the effect of non cross examining

the witnesses and referred to the case in Bhoju Mandal and ors Vs

Debnath Bhagat & others AIR 1963 Sc 1906. where in it was held

“that the court repelled a submission on the ground that the same

was not put either to the witnesses or suggested before the courts.

Party is required to put his version to the witness. If no such

questions are put the court would presume that the witness account

has been accepted” and the Supreme court further referred to the

case Maroti Bansi Teli Vs RadhaBai AIR 1945 Nagpur 60 where in it

was held that the matters sworn by one party in the pleadings not

challenged either in pleadings or cross-examination by other party

must be accepted as fully established.So from the above decision it is crystal clear that if the accused does not deny the signature on the promissory note and no suggestion was put to that effect to P.W.1 during the cross examination then it amounts to admission on part of the accused regarding the signature on the promisory note. Moreover the evidence of

P.W.1 clearly shows that the accused executed promissory note in favour of him after taking the consideration of Rs.6,00,000/-. So when once the execution of the promissory note is proved then the presumption under the section 118(a) of Negotiable Instruments Act is pressed into the service. This court is relying upon the decision reported in Mallavarapu

Kasivisweswara Rao Vs Thadikonda Ramulu Firm &Ors(2008) INSC

971 held that “Once the execution of the promissory note is proved

the court is obliged to presume, until the contrary is proved, that

the promissory note was made for consideration and it is also a

settled position that the initial burden lies on the defendant to

prove the non existence of consideration by bringing on record such

facts and circumstances which would lead the court to believe the

non-existence of consideration either by direct or indirect evidence

or by preponderance of probabilities showing that the existence of

consideration was improbable, doubtful or illegal.” So the law presumes that the promissory note was made for consideration and it is also a settled position that the burden lies on the accused to prove the non existence of consideration by bringing on record such facts and circumstances which would lead the court to believe the non-existence of consideration either by direct or indirect evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal and the burden lies on the accused to show that no consideration was passed to the accused under Ex.P5 promissory note.There are no discrepancies and exaggerations and improvements in the evidence of

P.W.1 and his evidence is consistent and this court finds no reason to discard his evidence in respect of the execution of promissory note by the accused in favour of the complainant. The counsel for the complainant argued that the complainant filed a civil suit against the accused on the foot of the promissory note dt.21-04-2016 on the file of Principal Senior Civil Judge,

Rajamahendravaram and at that time, the accused became ex parte and an 7CC No.268/2016 dated 16.03.2020 exparte decree was passed against the accused and to show the same the complainant filed Ex.P6 and Ex.P7. The document Ex.P6 is the certified copy of the decree passed in favour of the complainant in O.S.No.275/2016 on the file of Principle Senior civil Judge, Rajahmundry and Ex.P7 is the certified copy of judgment in O.S. No.275/2016 on the file of Principle Senior Civil Judge,

Rajahmundry and the said document shows that the accused became set exparte in O.S.No.275/2016. The counsel for the complainant further relied upon the decision reported in 2002(2) ALD Crl. 887 (Supreme Court)

K.G. Premshankar Vs. Insepctor of Police and another; wherein the

Hon'ble Supreme Court held that a judgment in civil proceedings

between the same parties is relevant and admissible in a criminal

case between the same parties regarding the same incident,

judgment of civil court would be relevant if conditions of any of the

sections 40 to 43 of Indian Evidence Act are satisfied, but it cannot

be said that the same would be conculsive except as provided in

section 41 of Indian Evidence Act. Relying upon the above decision the counsel for the complainant argued that Ex.P6 and Ex.P7 are relevant and admissible to show that there is a legally enforceable debt between the complainant and the accused.As rightly contended by the counsel for the complainant the documents Ex.P6 and Ex.P7 are relevant though not conclusive. Now the point for consideration is whether there is any legally enforceable debt between the complainant and the accused. The accused was unable to elicit any improbabilities in the evidence of P.W.1 and the evidence of P.W.1 coupled with Ex.P6 and Ex.P7 shows that there is a legally enforceable debt between the complainant and the accused and moreover no evidence is produced by the accused to show that the exparte decree passed in favour of the complainant in O.S.275/2016 is setaside. Hence the above point No.1 is answered in favour of the complainant and against the accused.

14. POINT NO.2 AND POINT NO.3:- The counsel for the accused did not put a single suggestion to the complainant during the cross examination denying the signature of the accused on the cheque. So as per the decision stated supra ie. In Muddasani Venkata Narasaiah Vs Muddasani

Sarojana 2016(4) PLJR SC 227 matters sworn by one party in the pleadings not challenged either in pleadings or cross-examination by other party must be accepted as fully established. So non cross examining of P.W.1 by denying the signature of the accused on the cheque amounts to admission of signature on the cheque by the accused. So when once the signature on the cheque is admitted by the accused the presumption under the section 139 of Negotiable Instruments Act is pressed into the service and the court shall presume that the said cheque is given towards the discharge of legally enforceable debt and the reverse burden lies on the accused to show that there is no legally enforceable debt between the complainant and him. This court is relying upon the decisions reported in Rangappa Vs. Mohan SC

2010 Page No.441 The Hon'ble Apex Court held that " Once the

signature is admitted by the accused, presumption U/Sec.139 of

Negotiable Instruments Act shall be drawn in favour of the

complainant regarding the existence of legally enforceable debt. In

this case it is further held by the Hon'ble Apex Court that the

accused could rebut the presumption even by without stepping into

the witness box and discharge his burden on relying on the

materials submitted by the complainant and the standard of proof of

accused for doing so is preponderance of probabilities”. The court further held that the presumption U/Sec.139 of Negotiable Instruments Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption. What is required to be established by the accused in order to rebut the presumption is not a mere plausible 9CC No.268/2016 dated 16.03.2020 explanation, but it must be more than a plausible explanation by way of rebuttal evidence. In other words the defence raised by the way of rebuttal evidence must be probable and capable of being accepted by the court. In

K.Bhaskaran Vs. Sankaran Vidya Balan (2) 2000 (1) ALT Crl.42

Supreme Court " The Apex Court held as the signature in the cheque

is admitted to be that of the accused the presumption envisaged in

Sec.118 of Act can be legally inferred that the cheque was made or

drawn for consideration on the date which the cheque bears.

Sec.139 of the act enjoins on the court to presume that the holder of

the cheque received it for the discharge of any debt or liability. The

burden was on the accused to rebutt the aforesaid presumption".

In Birsingh Vs. Mukesh Kumar dt:06-02-2019 wherein the Hon'ble

Supreme Court held that a meaningful reading of the provisions of

NI Act including, in particular, Sec.20, 87 and 139 makes it ample

clear that a person who signs a cheque and makes it over to the

payee remains liable unless he adduces evidence to rebut the

presumption that the cheque had been issued for payment of debt

or in discharge of a liability. It is immaterial that the cheque may

have been filled in by any person other than the drawer, if the

cheque is duly signed by the drawer. If the cheque is otherwise

valid, the penal provisions of Sec.138 of NI Act would be attracted. If

a signed blank cheque is voluntarily is presented to a payee towards

some payment the payee may fill up the amount and other

particulars. This in itself would not invalidate the cheque. The onus

still be on the accused to prove that the cheque in discharge of debt

or liability by adducing the evidence. The Hon'ble Supreme Court

further held that even a blank cheques leaves voluntarily signed and

handed over by the accused, which is towards some payments would

attract the presumption U/sec.139 of NI Act, in the absence of any

cogent evidence to show that the cheque was not issued in

discharge of a debt.

15. So, this court proceeded to see whether the accused is able to discharge his reverse burden by raising the improbabilities and inconsistencies in the evidence of the complainant and whether the accused discharged his reverse burden even by showing preponderance of probabilities.

16.The counsel for the accused argued that P.W.1 categorically admitted in his cross examination that he is not having any license for his finance business and so, the counsel for the accused argued that any money lent by the money lender without having any license to his business is not legally recoverable debt and hence argued that there is no legally enforceable debt between the complainant and accused. The counsel for the accused relied upon the deicison reorted in Bombay High court in case

titled as vs. nanda Kishore dt. 07.12.2011; wherein the Hon'ble

court held that the explanation to sec.138 of N.I. Act clearly

stipulates that the debt or liability means legally enforceable debt

or other liability the claim by money lending against the borrower

without production of valid and operative money lending license

covering period of transaction was unenforceable claim under

Sec.138 of N.I. Act. In the said decision, the High court also

discussed about the principle laid down in Anil Babu Rao Kataria vs.

Purushottam Prabhakar Kawane RCR 2010 (2) Civil Bombay High

Court in para-9 as explained that if the court is satisifed that the

money lender did not hold a valid license , it shall dismiss the suit.

In other words, carrying on money lending business without license

11CC No.268/2016 dated 16.03.2020

debars a person from doing money lending and recovering the

amount through court. As per explanation to Sec.138 of N.I. Act

'debt or other liability' means a legally enforceable debt or liability.

So, a loan advanced by a money lender who is doing business of

money lending without license is not a debt or other liability and

provisions of Sec.138 of the Act will not apply to such transaction. In

Nandakishore case the Hon'ble High court further held that as the

money lender is not having license to money lending business then

the contract between the parties was not valid in the eyes of law

because lending money without license is against the public policy

as per Sec.23 of Indian Contract and the claim cannot be enforced

by any court of law. Thus, Pithily Put, the transaction in question, is

also hit by the provisions of Sec.23 of Indian Contract Act.

20.The counsel for the accused also further relied upon the decision reported in 2004 Crl. Law Journal 4019 M/s. Krishnam Raju Finance

Hyderabad vs. Abida Sultana and another; wherein the Hon'ble High

Court held that the complainant claimed that he is a money lender

and has not produced any license as required under law and further

the amount alleged to have been advanced by the complainant

cannot be said to be a loan as defined under the Andhra Pradesh

(Telangana are) money lenders Act, 1349 Fasli. The Hon'ble High

Court further held that since the appellant had no money lending

business license , it cannot be said that there was a legally

enforceable liability between the parties in view of Sec.9 (2) r/w.

Sec.2(4) of Andhra pradesh (Telangana are) Money Lenders Act,

1349 fasili. Once an act declares that a particular transaction is

illegal, it cannot be made legal for the purpose of any other act. The

sheet anchor of sec.138 of the Act is as to legally enforceable

liability against the other party which is conspicuously absent in the

case on hand. The Hon'ble High Court further held that there is no

legally enforceable liability against the respondent.

17.The counsel for the accused relying upon the above decisions vehemently contended that there is no legally enforceable debt between the complainant and accused as the complainant is not having license to his finance business and hence prayed the court to acquit the accused. The counsel for the accused further relied upon the decision reported in AIR

2008 Supreme Court 1325 Krishna Janardhan Butt vs. Dattatraya G.

Hegde; wherein the Hon'ble Supreme Court held that in order to attract

Sec.138 of N.I.Act the following procedural requirements are to be present. i)

There is a legally enforceable debt. ii) The drawer of the cheque issued the cheque to satisfy part or whole of the debt iii) The cheque so issued has been returned due to insufficiency of funds. The counsel for the accused relying upon the above judgment contended that the first ingredient i.e. legally enfoceable debt between the complainant and the accused is conspicuously absent in this case and hence argued that the accused should be acquitted.

The decision reported in M/s.Krishnam Raju Finance Hyderabad

Vs.Abida Sultana 2004 Criminal Law Journal 4019 is not helpful to the accused as the Andhra Pradesh (Telengana Area) Money Lenders Act does not apply to Andhra Area and the same was laid down in NSL Ltd., Employees

Union Vs. Govt., of A.P. And Others July 1991. So whether the complainant has license to lend money or not would not take away criminal liability made out against the accused.

18.The evidence of P.W.1 is quite consistent and P.W.1 stood the rigour of the cross examination. During the cross examination it was suggested to P.W.1 that he and his daughter and L.Malleswara Rao fabricated

Ex.P5 pronote and P.W.1 denied the same. When once the complainant 13CC No.268/2016 dated 16.03.2020 proved the execution of promissory note the burden shifts to the accused to show that Ex.P5 pronote is a fabricated one. But the accused did not take any steps to prove that Ex.P5 pronote was fabricated and moreover the accused failed to state how the cheque of the accused went into the hands of the complainant. So in the light of the above discussion the accused failed to prove that there is no legally enforceable debt between him and the accused also failed to bring something on the record which is probable for getting the burden of proof shifted to the complainant.

19. On the other hand as per mandatory requirements made

U/Sec.138 and 142 of Negotiable Instruments Act the complainant presented the cheque within three months from the date of issuance of cheque and after receiving the intimation from the bank about dis-honour of the cheque he issued the legal notice within one month from the date of receipt of information from the bank, and the said legal notice was received by the accused and the accused did not pay the cheque amount and the complainant filed this complaint within one month from the date of cause of action. Thus the complainant followed the mandatory requirements proved

U/Sec.138 and 142 of Negotiable Instruments Act and complainant proved that the cheque is given towards the discharge of legally enforceable debt and hence the above point is answered in favour of the complainant and against the accused. Hence Point NO.2 and Point No.3 are answered in favour of the complainant and against the accused.

20.In the result, the accused is found guilty for the offence punishable U/s 138 of the Negotiable Instruments Act and accordingly, he is convicted U/s 255(2) of Cr.P.C for the offence U/Sec.138 of Negotiable

Instruments Act.

Typed to Dictation to the Stenographer, typed by her, corrected and pronounced by me in open court on this the 16 th day of March, 2020.

III Addl. Judicial Magistrate of First Class, Rajahmahendravaram.

21.The accused is examined in a questionnaire form for fixing the quantum of sentence. The accused submitted that : “ he is having wife and children” and prayed the court to take a lenient view.

22. After considering the facts and circumstances of the case and also submissions made by the accused and his counsel, this is a complaint regarding to financial transactions and hence this is not a fit case to invoke the benevolent provisions of probation of offenders act to the accused.

Hence after considering the submissions made by the accused this court feel that the following sentence would meet the ends of justice.

23. In the result, the accused is found guilty for the offence U/s 138 of the

Negotiable Instruments Act and is convicted U/s 255(2) of Cr.P.C. The accused is sentenced to undergo a simple imprisonment for a period of one year for the offence under the section 138 of N.I. Act. The accused is further directed to pay the compensation of Rs.6,00,000/-(Six lakhs only) which is equal to the cheque amount to the complainant U/Sec.357(3) of Cr.P.C. The compensation shall be paid to the complainant after the lapse of appeal time. In default of payment of compensation the accused is further sentenced to undergo a simple imprisonment for a period of three months.

The remand period of the accused if any is set off U/Sec.428 of Cr.P.C. The accused is appraised of his right of appeal and right to free legal aid in appeal.

Typed to Dictation to the Stenographer,typed by her, corrected and

pronounced by me in open court on this the 16 th day of March, 2020.

III Addl. Judicial Magistrate of First Class, Rajahmahendravaram.

15CC No.268/2016 dated 16.03.2020

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Complainant :

P.W.111.09.2019,Barla Babu Rao 26.11.2019, 02.12.2019

For Accused: Nil

DOCUMENTS MARKED

For Complainant :

Ex.P1 : Cheque bearing NO.382490 dt.25.04.2016 drawn on SBI, Jaggampeta. Ex.P2 : The cheque return memo dt. 26.04.2016. Ex.P3 : The office copy of legal notice, dt. 29.04.2016 Ex.P4 : Acknowledgement Ex.P5 : The Original promissory note dt. 21-04-2016. Ex.P6 : Certified copy of decree in O.S.275/2016 on the file of

Principal Senior Civil Judge, Rajahmundry.

Ex.P7Certified copy of judgment in O.S.275/2016 on the file of Principal Senior Civil Judge, Rajahmundry.

For Accused: -Nil

MATERIAL OBJECTS- Nil

Sd/Smt.D.Sreedevi, III Addl. Judicial Magistrate of First Class, Rajahmahendravaram.

// TRUE COPY//

III Addl. Judicial Magistrate of First Class, Rajahmahendravaram.

CALENDAR

IN THE COURT OF THE III ADDITIONAL JUDICIAL MAGISTRATE OF

FIRST CLASS :: RAJAHMAHENDRAVARAM.

PRESENT : Smt. D.Sreedevi, III Addl. Judl. Magistrate of First Class, Rajahmahendravaram.

C.C.No. 268 /2016

Dates of :

Offence:: 26.04.2016 Complaint:: 09.06.2016 Appearance of Accused: : 07-05-2019 Release on Bail : -- Commencement of Trial: : 09.07.2019 Close of trial:: 30.12.2019 Sentence or order:: 10.03.2020 Explanation for delay : Due to non production of witnesses in time.

Name of the complainant : Barla Babu Rao, S/o. Appa Rao, Hindu, aged 49 years, Business, D.NO.73-12-3/3, Narayanapuram, Rajahmundry.

Name of the Accused : Bandaru Satyanarayana Raju, S/o. Valli Babu, Hindu, aged 52 years, Business, D.NO.10-60, Sivaji Street, Jaggampeta, E.G.Dt.

Offence : U/S.138 of NI Act Plea of the Accused : Not Guilty Finding : Found Guilty

Sentence or Order :

In the result, the accused is found guilty for the offence U/s 138 of the Negotiable Instruments Act and is convicted U/s 255(2) of Cr.P.C. The accused is sentenced to undergo a simple imprisonment for a period of one year for the offence under the section 138 of N.I. Act. The accused is further directed to pay the compensation of Rs.6,00,000/-(Six lakhs only) which is equal to the cheque amount to the complainant U/Sec.357(3) of Cr.P.C. The compensation shall be paid to the complainant after the lapse of appeal time. In default of payment of compensation the accused is further sentenced to undergo a simple imprisonment for a period of three months. The remand period of the accused if any is set off U/Sec.428 of Cr.P.C. The accused is appraised of his right of appeal and right to free legal aid in appeal.

III Addl. Judicial Magistrate of First Class, Rajahmahendravaram. Copy submitted to the Hon’ble Chief Judl. Magistrate Cum-Prl. Senior Civil

Judge, East Godavari, Rajahmundry for favor of information

17CC No.268/2016 dated 16.03.2020 // TRUE COPY//

1 JCC 210/2018, dt.13.03.2020

BEFORE THE PRL. MAGISTRATE FOR JUVENILE JUSTICE BOARD CUM

III ADDL.J.F.C.MAGISTRATE :: RAJAHMAHENDRAVARAM

PRESENT: Smt.D.Sreedevi, III Addl.J.F.C.Magistrate-Cum-

Prl. Magistrate for JJB, Rajahmahendravaram.

Friday, the 13 th day of March, 2020.

J.C.C.No.210 /2018

Between: State Represented by Sub-Inspector of police, Kirlampudi Police Station (Cr.No.126/2018) …Prosecution.

And

Palepu Sreenu S/o. Bullioyya, aged 17 years, Coolie, Ramalayam Street, Patha Isukapalli village, U. Kothapalli Mandal. … Child in Conflict with Law.

This case coming on this day for hearing on 26.02.2020 in the presence of the Assistant Public Prosecutor for the State and T.chakradhar, Advocate for Children in Conflict with Law and the matter having stood over for consideration till this day, the Board delivered the following:

FINAL ORDER

1.The Sub-Inspector of Police, Kirlampudi Police Station filed final report against the Children in conflict with law (herein after for short referred as – the CCL) in Cr.No.126/2018 U/sec.380 or 411 IPC,

2.The case of the prosecution, in brief, is as follows:

L.W.1/ Gandharapu Sathibabu is the resident of Siddardha Apartments,

Kakinada and he is the defacto complainant in this case. L.W.1-Gandharapu

Sathibabu is having own house at Veeravaram village which is his native place and he is residing at Siddardha Apartments, Kakinada by doing his caste profession. On 03.09.2018, L.W.1-Gandharapu Sathibabu came to his house at Veeravaram village from Kakinada to take his pension amount and noticed that cash of Rs.3,55,000/- was found missing which was kept in the 2 JCC 210/2018, dt.13.03.2020 almyrah of his house. Later, he gave report in Kirlampudi P.S on 09.09.2018.

On receipt of report of L.W.1/ Gandharapu Sathibabu, a case in

Cr.No.126/2018 under Sec.380 IPC was registered by L.W.12/the then Sub-

Inspector of Police, Kirlampudi P.S. He visited the scene of offence, recorded the statements of witnesses and prepared rough sketch.

During the course of investigation, on 20.09.2018 at 8.00 am, at

Ramalaym street, P. Isukapalli village, U. Kothapalli Mandal, L.W.13/S.I. of

Police, Kirlampudi P.S arrested the ccl and recovered part of the stolen property in the presence of mediators under the cover of mediators report and after completion of investigation, he final report was filed.

3.This case was taken on file for the offence punishable U/s 380 or 411 of IPC against the CCL and was numbered as JCC 210/2018.

4.On appearance of the CCL, copies of documents were furnished to him, as envisaged under Sec.207 of Code of Criminal Procedure.

5. To substantiate its case, the prosecution has examined PWs.1 to 9, got marked Exs.P1 to P6.

6.After completion of the prosecution side evidence, CCL is examined U/s 313 Cr.P.C. with regard to the incriminating material found against him for which he denied and reported no defence evidence.

7. Heard both sides arguments submitted by the Learned APP and

Counsel for the CCL.

3 JCC 210/2018, dt.13.03.2020

8.Now the point for determination is :

1. “Whether the prosecution proved the guilt of CCL for the offence punishable U/s 380 of IPC beyond all reasonable doubt?”.

(or)

2. “Whether the prosecution proved the guilt of CCL for the offence punishable U/s 411 of IPC beyond all reasonable doubt?”

9.The learned APP argued that the testimony of P.Ws.1 to 9 shows that ccl went into the house of Pw.1 and committed theft and police apprehended the CCL and seized the part of the stolen property concerned to this case from the possession of CCL in the presence of mediators under a cover of mediators report basing on the confession given by the CCL. The prosecution alleging that the CCL is liable for punishment U/Sec.380 or 411 of IPC.

10.The contention of the CCL is total denial of prosecution allegations leveled against him. He contended that he was falsely implicated in the present case and he is no way concerned with the present case. As such the burden heavily lies on prosecution to prove that the CCL had committed the alleged offence.

11.In order to prove its case, the prosecution examined Pws 1 to 9 and got marked EX.P1 to P6. Among the prosecution witnesses, Pw.1 is the defacto complainants, Pws.2 to 5 are the relatives, P.W.6 is the mediator(VRO), Pw 7 is the school head master, P.Ws.8 and 9 are the investigating Officers. Out of the documents exhibited by the prosecution, Ex.P1 is the report given by

Pw1, Ex.P2 is the 161 Cr.P.C. statement of P.W.2, Ex.P3 is the mediators report, Ex.P.4 is the study certificate of ccl, Ex.P5 is the F.I.R in 4 JCC 210/2018, dt.13.03.2020

Cr.No.126/2018 and Ex.P6 is the rough sketch.

12.POINT NO.1: To prove the offence under the section 380 of I.P.C. the prosecution relied upon the evidence of P.W.1. The evidence of P.W.1 is that he is working as Watchman in Sidardha apartments, Kakinada, he along with his family residing there and he used to go to his native place Veeravaram village, Kirlampudi Mandal frequently. He further deposed that at about 7 months back, he went to Veeravaram village to his house, he found that cash of Rs.3,55,000/- is missing which is kept in almyrah and then he gave report to Kirlampudi police and after 15 days of his report, police informed him about the recovery of cash of Rs.3,55,000/-. During the cross-examination, it was suggested to P.W.1 that his cash was not subjected to theft.

13. P.W.2 did not support the case of prosecution and she turned hostile and she deposed that he do not know ccl, do not know the case facts and her husband informed her that cash of Rs.3,50,000/- was subjected to theft and police did not examine her and at the time of incident, she was present in

Kakinada.

14. P.W.3 deposed that P.W.1 used to reside at kakinada, in his own house, his mother is residing and Pw.1 had kept a cash of Rs.3,50,000/- in his house for the marriage of his daughter, as he stated to him that the said cash was subjected to theft and expressed his suspicion over his nephew, he told pw.1 to give report to police and accordingly pw.1 gave report to police. During cross examination, he deposed that on the date of incident, he saw the nephew of P.W.1 and sister of P.W.1 coming to the house of P.W.1. It was suggested to P.W.3 that he is residing beside the house of P.W.1 at

Veeravaram village and so he is deposing false in order to help P.W.1 and no 5 JCC 210/2018, dt.13.03.2020 theft had taken place.

15.P.W.4 deposed that at about 11 months back, ccl brought a cash of Rs.2,00,000/- and asked to come for purchasing auto, then he stated that he was busy and told him that he will come later and he questioned the ccl about such huge amount of cash with him, then ccl stated that he had participated in the auction and bided a chit amount and he told ccl to take away the cash, but ccl stated that if the cash is with him, he would spend away and so asked him to keep the said cash of Rs.2,00,000/- with him and after 10 to 15 days, he came to know that the police took the ccl then police came to him and he handed over the cash of Rs.2,00,000/- to police. During cross examination, he deposed that no persons had seen ccl giving him cash of Rs.2 lakhs. He denied the suggestions that he is deposing false and ccl did not give any cash of Rs 2 lakhs to him.

16.P.W.5 deposed that at about 11 months back, ccl came to him and gave cash of Rs.1,00,000/-, stating that he obtained the said cash of

Rs.1,00,000/- by biding the chit and gave the said cash asking him to purchase an auto for him and then he stated to ccl that he was busy and told him that he would come later, he asked ccl to take away the said cash, but ccl told him to keep the said cash with him and after one week police came and then he handed over the said cash to police and Police stated to him that ccl had committed theft. During cross examination, he deposed that no person had seen ccl giving him cash of Rs.1 lakh to him. He denied the suggestion that ccl did not come to him and did not give him cash of Rs.1 lakh.

6 JCC 210/2018, dt.13.03.2020

17.According to prosecution, P.W.6 is the mediator at the time of arrest of ccl and seizure of stolen property. The evidence of PW6 discloses that on 20.09.2018 at 9.00 am, Police of Kirlampudi P.S. called him to come to the police station, from the police station, SI of Police and their staff and another mediator(VRA), L.W.11 proceeded to Isukapalli village to the house of ccl, at that place ccl is present and on seeing the police, he tried to escape, on that police caught hold of him and questioned him, on interrogation, ccl confessed that he had committed theft of cash of

Rs.3,55,000/- at Veeravaram village and he gave Rs.2 lakhs to one person and Rs.1,00,000/- to another person and kept the cash of Rs.50,000/- for his necessaries , then police seized cash of Rs.50,000/- from ccl and also asked the ccl to state the names of those persons to whom he had given the said cash and accordingly, the ccl had stated the names of those persons and police seized the cash in the police station after bringing the ccl and cash to the police station under the cover of mediators report. During cross examination, P.W.6 admitted that the mediator report was drafted in the police station by constable at the dictation of SI of Police and he put his signature on the mediator report. He further admitted that there is no date beneath his signature on the mediators report. He denied the suggestion that he never saw the ccl before and he identified the ccl before the board as police had shown him and he is deposing false.

18.P.W.7 is the Head Master in MPPUP School, P. Isukapalli and he deposed about issuance of study certificate of ccl on 20.09.2018. During cross examination, it was suggested to P.W.7 that without proper verification, he issued study certificate of ccl and he denied the same.

7 JCC 210/2018, dt.13.03.2020

19.P.W.8 is the investigating officer and he deposed that on 20.09.2018, he received credible information about the offender in this crime, then he secured the mediators P.W.6 and L.w.11/G. Narayana Rao, along with his staff proceeded to Isakapalli village, U. Kothapalli Mandal to the house of ccl at Ramalayam street, at that place, ccl was present and he apprehended the ccl and ccl confessed that he had committed theft of cash of

Rs.3,55,000/- from the house of his maternal uncle situated at Veeravaram village, intending to purchase an auto and so he handed-over cash of Rs.2 lakhs to one Dorla Venkateswara Rao @ Dorababu and another sum of Rs.1 lakh to Tunisetti Durgaprasad for the purchase of new auto and ccl further confessed that he had placed the remaining Rs.50,000/- cash in the shelf of his house and had spent the balance amount of Rs.5,000/- for his necessaries, ccl went into his house and brought Rs.50,000/- by taking the same from his shelf and handed-over the same to him and then he seized the said cash of Rs.50,000/- under the cover of mediators report. P.W.8 further deposed that he secured Gorla Venkateswara Rao through his staff and then he stated that ccl had handed-over a cash of Rs.21 lakhs to him and he seized the same under the cover of mediators report and thereafter, he secured Kunisetti Durgaprasad @ Bhavan Reddy and he also stated that ccl had handed-over a cash of Rs.1 lakh to him for purchase of new auto and he seized cash of Rs.1 lakh from K. Durga Prasad under the cover of mediators report drafted by P.W.6 and then he apprehended the ccl and took him to the police station along with seized cash, after taking study certificate of ccl and after completion of investigation, he filed final report.

20.During cross examination, P.W.8 deposed that he did not examine the mother of P.W.1 and P.W.1 did not give any report to them. He further admitted that P.W.1 did not mention in his report about the source of cash of 8 JCC 210/2018, dt.13.03.2020

Rs.3,55,000/- and the mediator report does not disclose the name of the scribe. He further admitted that there are no dates beneath the signatures of the mediators on the mediator report and theft was committed on 02.09.2018, but the report was given to the police on 09.09.2018. He denied the suggestions that all the witnesses examined by them are the relatives of

P.W.1 and he did not examine any independent witnesses. He further denied the suggestions that he did not apprehend the ccl and did not seize MO1 from the possession of ccl and he registered a false case.

21.P.W.9 is also investigating officer and he deposed about registration of a case in Cr.No.126/2018 basing on the report from P.W.1 on 09.09.2018, examined the witnesses, visited the scene of offence and prepared rough sketch.

22.On perusal of entire evidence on the record, the defafto complainant in this case is examined as P.W.1 and he stated that ccl and his mother came to his house at about 7 months back and later went away and then he found the cash of Rs.3,55,000/- is missing and the same was kept in almyrah and then he went to his sister's house and asked his sister about the same. Ccl stated to him that he took a cash of Rs.3,55,000/- from almyrah of his house. During cross examination, P.W.1 categorically stated that he did not see the ccl taking the money from the house. P.W.2 is the wife of P.W.1 and she stated that she does not know the facts of the case and she further stated that her husband stated to her that a cash which was kept in the house for the marriage of her daughter was subjected to theft. P.W.2 did not support the case of prosecution and turned hostile. According to the case of prosecution , P.W3 is a neighbour of P.W.1 and he deposed that P.W..1 stated 9 JCC 210/2018, dt.13.03.2020 to him that he kept a cash of Rs.3,55,000/- in his house and the said cash was subjected to theft and P.W.1 is suspecting his nephew. During cross examination, PW..3 stated that P.W.1 did not state to him about keeping the cash of Rs.3,50,000/- in his house. The evidence of P.W.3 shows that he came to know about the commission of theft through P.W.1 only and he did not see ccl committing theft in the house of P.W.1. So P.W.1 to P.W.3 did not see the ccl committing theft in the house of P.W.1 and it is only the suspicion of P.W.1 that ccl might have committed theft of cash in his house. So there is no direct or circumstantial evidence to show that ccl had committed theft of cash of

Rs.3,55,000/- from the house of P.W.1. Hence the above point is answered in favour of ccl and against the prosecution.

23.POINT NO. 2:- To prove the offence under section 411 of IPC., the prosecution has to prove that ccl is in the possession of M.O.1 having knowledge and reason to believe that M.O.1 is the stolen property. According to the case of prosecution, ccl had committed theft of cash of Rs.3,55,000/- and gave a cash of Rs.2 lakhs to P.W.4 for purchasing an auto for him and ccl gave a cash of Rs.1 lakh to P.W.5 for purchasing an auto to him and later the police has seized a cash of Rs.50,000/- from the possession of ccl and police also seized cash of Rs.2 lakhs and Rs.1 lakh from P.Ws. 4 and 5 respectively and hence the learned APP vehemently argued that the cash which was stolen was recovered on the confession made by the ccl and the amount recovered by the police on the confession made by ccl is relevant under

Sec.27 of Indian Evidence Act and hence prayed the board to convict the ccl for the offence under Sec.411 of IPC. The prosecution has examined P.Ws.4 and 5 and they both stated that ccl had given cash to them for purchasing an auto and ccl stated to them that the said amount was obtained by him by participating in an auction and bidding a chit. Now this board proceeded to 10 JCC 210/2018, dt.13.03.2020 see whether the evidence of P.W.6 in whose presence cash of Rs.50,000/- is seized is corroborating with the evidence of investigating officer i.e. P.W.8.

P.W.6 stated before the court that police seized a cash of Rs.50,000/- from ccl in his presence and further stated that police seized the cash in the police station after bringing the ccl and the cash to the police station and the mediator report was drafted by the constable in the police station. But whereas the investigating officer stated before the board that the mediator report was drafted by P.W.6 at Isukapalli village, U.Kothapalli Mandal near the house of ccl. According to P.W.8, P.Ws. 4 and 5 were called to the house of ccl and seized a cash of Rs.2 lakhs from P.W.4 and Rs.1 lakh from P.W.5 at the house of ccl in the presence of mediator i.e. P.W.6. But P.W.6 did not depose

before the board that the police called P.Ws. 4 and 5 to the house of CCL and

had seized a cash of Rs.2 lakhs and Rs.1 lakh from them. This is nothing but omission on the part of P.W.6 and if really P.W.6 was present at the time of seizure of Rs.50,000/- and at the time of seizing of cash of Rs.2 lakhs and

Rs.1 lakh from P.Ws. 4 and 5 respectively he would have stated the same

before the board. The investigating officer P.W.8 stated that the mediator

report was drafted by P.W.6, but whereas P.W.6 stated that mediator report was drafted by the constable at the dictation of S.I of police in the police station and P.W.6 admitted during the cross examination that he put his signature in the mediator report in the police station. Hence the evidence of

P.W.6 is itself doubtful and moreover, P.W.8 did not examine any other independent witnesses at the place of seizure. Hence the seizure is itself doubtful and the prosecution failed to prove the ccl is in the possession of cash of Rs.3,55,000/-. The evidence of P.W.6 is not consistent with the mediator report Ex.P3 and hence the about point is answered in favour of ccl and against the prosecution.

11 JCC 210/2018, dt.13.03.2020

24.In the result, CCL is found not guilty for the offences U/Sec.380 or 411 of IPC and is acquitted U/Sec.255(1) of Cr.P.C. The bail bonds of ccl and his sureties shall stand cancelled after the lapse of six months. M.O.1- cash of Rs.3,50,000/- which was given to P.W.1 towards interim custody shall become absolute after lapse of appeal time.

Dictation to the Stenographer corrected and pronounced by me in open court on this the 13 th day of March, 2020.

SdSmt.D.Sreedevi, Prl.Magistrate for JJB, Rajahmahendravaram

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For prosecution : For CCL :none

P.W.122.03.2019Gandharapu Sathibabu P.W.219.07.2019G. Potchamma P.W.324.07.2019K. Satyanarayana Raju P.W.402.08.2019Gorla venkateswara Rao P.W.502.08.2019K. Durga Prasad

P.W.607.08.2019Thota Ramalingeswara Rao

P.W.730.10.2019D.V.V.Satya Prasad P.W.814.11.2019P. Kishore Kumar P.W.929.01.2020A. Balaji

EXHIBITS MARKED

For Prosecution: For CCL : none

Ex.P1Report given to police. Ex.P2161 Cr.P.C. statement of P.W.2.

Ex.P3Mediator report dt.20.09.2018

Ex.P4 Study certificate of ccl.

Ex.P5 FIR in Cr.No.126/2018. Ex.P6Rough sketch

MATERIAL OBJECTS

M.O.1 : Cash of Rs.3,50,000/­

SdSmt.D.Sreedevi,

PRL.MAGISTRATE FOR JJB,

Rajahmahendravaram.

12 JCC 210/2018, dt.13.03.2020

CALENDAR

BEFORE THE PRL. MAGISTRATE FOR JUVENILE JUSTICE BOARD CUM

III ADDL.J.F.C.MAGISTRATE :: Rajahmahendravaram

PRESENT: Smt.D.Sreedevi, Prl. Magistrate for JJB, Rajahmahendravaram.

J.C.C.No.210 /2018

Dates of : 

Offence:: 03.09.2018 Complaint:: 09.09.2018 Apprehension of Juvenile: 20.09.2018 Release on Bail : ­­ Commencement of Trial : 01.03.2019 Close of trial:: 29.01.2020 Sentence or order:: 13.03.2020 Explanation for delay : Due to non production of Prosecution Witnesses in time.

Name of complainant : State Represented by Sub­Inspector of police, Kirlampudi P.S., (Cr.Nos.126/2018)

Name of the juvenile : Palepu Sreenu S/o. Bullioyya, aged 17 years, Coolie, Ramalayam Street, Patha Isukapalli village, U. Kothapalli Mandal.

Offence : U/Sec. 380 or 411 of IPC

Plea of the juvenile : Not guilty

Finding : Found not guilty

Sentence or Order:

In the result, CCL is found not guilty for the offences U/Sec.380 or 411 of IPC and is acquitted U/Sec.255(1) of Cr.P.C. The bail bonds of ccl and his sureties shall stand cancelled after the lapse of six months. M.O.1­cash of Rs.3,50,000/­ which was given to P.W.1 towards interim custody shall become absolute after lapse of appeal time.

 PRL. MAGISTRATE FOR J J B,

Rajahmahendravaram. 

Copy submitted to the Hon’ble Chief Judl. Magistrate Cum­Prl.Senior Civil

Judge, Rajahmahendravaram for favour of information.

1 JCC 23/2018, dt.11.03.2020

BEFORE THE PRL. MAGISTRATE FOR JUVENILE JUSTICE BOARD CUM

III ADDL.J.F.C.MAGISTRATE :: RAJAHMAHENDRAVARAM

PRESENT: Smt.D.Sreedevi, III Addl.J.F.C.Magistrate-Cum-

Prl. Magistrate for JJB, Rajahmahendravaram.

Wednesday, the 11 th day of March, 2020.

J.C.C.No.23 /2018

Between: State Represented by Sub-Inspector of police, Sarpavaram Police Station (Cr.Nos.13/2017, 64/2017 and 235/2017) …Prosecution.

And

1. Javvaduli Manikanta @ Kasi, Viswanadh @ Paperodu, S/o. Sathibabu, Aged 16 years, D.NO.68-8-18, Vidyutnagar, Kakinada.

2. Challa Naga Siva Manikanta @ nani, S/o. Late Govindu, aged 16 years, D.No.68-7-5/3, Jetla Pedakapu Veedhi, Near gokulam Ashok Nagar, kakinada.

3. Ummidi Immanuyelu S/o. Apparao, aged 16 years, D.NO.3-192, Thuphan Building Street, Vakalapudi, Kakinada. … Child in Conflict with Law.

This case coming on this day for hearing on 26.020.20 in the presence of the Assistant Public Prosecutor for the State and T.chakradhar, Advocate for Children in Conflict with Law and the matter having stood over for consideration till this day, the Board delivered the following:

FINAL ORDER

1.The Sub-Inspector of Police, Sarpavaram Police Station filed final report against the Children in conflict with law (herein after for short referred as – the CCL) in Cr.Nos. 13/2017, 64/2017 and 235/2017 U/sec. 457, 380 or 411

IPC,

2.The case of the prosecution, in brief, is as follows:

L.W.1/ Dr.Adipudi Amrutha Valli is the defacto complainant in Crime no- 13/2017. On 08.01.2017 at 8.30 p.m, L.W.1-Dr. Adipudi Amrutha Valli found 2 JCC 23/2018, dt.11.03.2020 missing of cash of Rs.15,000/-, one gold chain with diamond pendent,

Samsung Grand II Cellphone, SBI ATM card, Visa card, key bunches of her office and driving license which was kept her almyrah and she searched for the same, but did not find it. Later, she gave report in Sarpavaram P.S on 09.01.2017. On receipt of report of L.W.1, a case in Cr.No.13/2017 under

Sec.380 IPC was registered by L.W.17/Sub-Inspector of Police, Sarpavaram

P.S. He visited the scene of offence, recorded the statements of witnesses and prepared rough sketch.

(ii) L.W.6/Rekapalli Rambabu is the defacto complainant in Crime no- 64/2017. In beween 16.02.2017 to 26.02.2017 at 5.00 pm, some unknown offenders gained entrance into the house by removing for ventilator glass and attempted to committ theft, but no valuable articles are not kept in the house, thereby the offenders escaped from the place. Later, L.W.6 gave report in Sarpavaram P.S. On receipt of report of L.W.6/Rekapalli Rambabu, a case in Cr.No.64/2017 under Sec.457, 380 r/w.511 of IPC was registered by

L.W.17/Sub-Inspector of Police, Sarpavaram P.S. He visited the scene of offence, recorded the statements of witnesses and prepared rough sketch.

(iii) On 17.07.2017 at 9.00 pm, the L.W.11/Gundapu Chandra Sekhar parked his Hero Splendor Plus motorcycle bearing No.AP05 CJ 2411 infront of his house and went into the house and on the next day morning at 7.00 am, he came out and found missing of his motorcycle and he searched for the same, but did not find it. Later, he gave report in Sarpavaram P.S. On receipt of report of L.W.6/Gundapu Chandra Sekhar, a case in Cr.No.235/2017 under

Sec.379 of IPC was registered by L.W.17/Sub-Inspector of Police, Sarpavaram

P.S. He visited the scene of offence, recorded the statements of witnesses and prepared rough sketch.

On 14.08.2017 at 8.00 pm, L.W.17/S.I. of Police , Sarpavaram P.S arrested the CCLS and recovered the above stolen property apart from the stolen property relating to other crimes, from the possession of CCLS in the 3 JCC 23/2018, dt.11.03.2020 presence of mediators under the cover of mediators report. After completion of investigation, he final report was filed.

3.This case was taken on file for the offence punishable U/s 457, 380 or 411 r/w.511 of IPC against the CCL and was numbered as JCC 23/2018.

4.On appearance of the CCLs, copies of documents were furnished to them, as envisaged under Sec.207 of Code of Criminal Procedure.

5. To substantiate its case, the prosecution has examined PWs.1 to 4, got marked Exs.P1 to P9 besides marking Mos.1 and 2.

6.After completion of the prosecution side evidence, CCLs are examined U/s 313 Cr.P.C. with regard to the incriminating material found against them for which they denied and reported no defence evidence.

7. Heard both sides arguments submitted by the Learned APP and

Counsel for the CCLs.

8.Now the point for determination is :

1. “Whether the prosecution proved the guilt of CCLs for the offence punishable U/s 457, 380 of IPC beyond all reasonable doubt?”.

(or)

2. “Whether the prosecution proved the guilt of CCL for the offence punishable U/s 411 of IPC beyond all reasonable doubt?”

9.The learned APP argued that the testimony of P.Ws.1 to 4 shows that ccls gained entry into the houses of Pws.1 and 2 and committed theft in their 4 JCC 23/2018, dt.11.03.2020 housesand police apprehended the CCLs and seized the stolen property concerned to this case from the possession of CCLs in the presence of mediators under a cover of mediators report basing on the confession given by the CCLs. The prosecution alleging that the CCLs are liable for punishment U/Sec.457, 380 or 411 of IPC.

10.The contention of the CCLs are total denial of prosecution allegations leveled against them. He contended that they were falsely implicated in the present case and they are no way concerned with the present case. As such the burden heavily lies on prosecution to prove that the CCLs had committed the alleged offence.

11.In order to prove its case, the prosecution examined Pws 1 to 4 and got marked EX.P1 to P9. Among the prosecution witnesses, Pws.1 and 2 are the defacto complainants, Pw.3 is the mediator, Pw4 is the investigating Officer.

Out of the documents exhibited by the prosecution, Ex.P1 is the report given by Pw1, Ex.P2 is the report given by Pw2, Ex.P.3 is the mediators report,

Ex.P.4 is the F.I.R in Cr.No.13/2017, Ex.P5 is the rough sketch in Cr.No.13/2017,

E.xP6 is the F.I.R in Cr.No.64/2017, Ex.P7 is the rough sketch in Cr.No.64/2017,

ExP8 is the F.I.R in Cr.No.235/2017, Ex.P9 is the rough sketch in

Cr.No.235/2017. Mo-1 is the morning bearing No.AP05 CJ 2411 and M.O.2 is the SAMSUNG cellphone.

12.POINT NO.1: To prove the offence under the section 457, 380 of I.P.C.

the prosecution relied upon the evidence of P.W.1 and P.W.2. The evidence of

P.W.1 is that on 16.02.2017 himself and his wife went to the house of his son, and on 26.02.2017 at about 4.00 pm, his maid servant made a phone call and informed that the ventilator mirror of his house was opened and was placed on the ground, on the same day night, he came to Kakinada and 5 JCC 23/2018, dt.11.03.2020 opened the doors of his house and found the doors of his bed rooms are break opened and the clothes and other articles are scattered on the floor and found no gold ornaments or any other articles are not subjected to theft.

On 27.02.2017 he gave report to the police. During the cross-examination,

P.W.1 stated that his ventilator mirror is situated at the height of 17 feet from the ground and police did not seize any broken locks from his house.

13. P.W.2 is also defacto complainant in Cr.No.235/2017 and he deposed that on 17.07.2017 at about 9.00 pm, he parked his splendor plus motorcycle bearing No.AP05 CJ 2411 infront of his house situated at Rayadupalem,

Kakinada and on the next day morning, he found missing of his motorcycle, then he searched for the same, but his efforts are in vain and then he gave report to Sarpavaram P.S. and after one month of his report, police informed him about the recovery of his bike. During his cross examination, he did not give the original keys and original records of his bike to police while giving report to police. He denied the suggestion that he did not park his bike infront of his house and his bike was not subjected to theft.

14.According to prosecution, P.W.3 is one of the mediator at the time of arrest of ccls and seizure of stolen property. The evidence of PW3 discloses that on 14.08.2018 at 9.00 am, Police of Sarpavaram P.S. called him to come to the police station, from the police station, SI of Police and their staff and another mediator L.W.16/Reddy Ramesh and proceeded to vacant place situated at Vakalapudi panchayat office and at that place 3 boys were present near Hero Honda Splendor bike and another bike is also present beside them, on seeing the police they tried to escape, on that police caught hold of them and questioned them and they disclosed their names as Javvadi

Manikanta, Ummadi Immanuel and Manikanta. He further deposed that on interrogation, ccls-1 confessed that he along with CCLs 2 and 3 had 6 JCC 23/2018, dt.11.03.2020 committed theft of bike at TTC church, Vakalapudi village and ccl-2 confessed that he had committed theft of bag containing black coloured cellphone, ccl-3 confessed that he along with CCLs. 1 and 2 went to the house situated at

Gaigolupadu and had broken the window of the house and entered into the house, but no items were found in the said house and ccls.1 to 3 also confessed that they had committed offences at several places and then police seized the bike from ccl-1 and cellphone from ccl-2 and no property was seized from ccl-3 under the cover of mediators report.

15.During cross examination, P.W.3 admitted that the mediator report does not bear the date on the front page of the mediator report and he cannot say the vehicle number of bike which was seized from the possession of ccl-1. He further admitted that there are no dates beneath the signatures of ccls on the mediator report and he drafted 20 to 30 mediator reports. He further deposed that the cellphone number and its company name is not mentioned it the mediator report. He denied the suggestions that he is the stock witnesses to the police and no cellphone was seized from ccl-2 and the mediator report was drafted in the police station.

16.P.W.4 is the investigating officer and he deposed about registration of cases in Cr.Nos.13/2017, 64/2017 and 235/2017 basing on the report from L.W.1/A. Amruthavalli and P.Ws. 1 and 2 on 11.04.2015, 27.02.2017 and 18.07.2017, examined the witnesses, visited the scenes of offence and prepared rough sketches. He further deposed that on 14.08.2017 at 8.00 am, while he was present in the police station, he received credible information about the offender in this case, then he secured the mediators, himself and his staff proceeded to Vakalapudi Panchayat office and at that place 3 boys are present, he caught hold of them and questioned 7 JCC 23/2018, dt.11.03.2020 them, on that they disclosed their names and ccls.1 to 3 confessed that they together had committed theft of one cell phone by entering into the house situated at FCI colony, Valasapakala village, he recovered the said cellphone from ccl-1 in Cr.No.13/2017. He further deposed that ccls 1 to 3 further confessed that they together entered into the house situated at Sasikantha

Nagar, Kakinada for committing theft, but no items are found and ccls-1 to 3 further confessed that on 18.07.2017 they together had committed theft of bike bearing No.AP05 CJ 2411 in the house situated at Rayudupalem, he seized said bike from ccl-2 in Cr.No.235/2017 and he seized said articles under the cover of mediator report and also issued notice under Sec.41-A

Cr.P.C. to ccls-1 to 3 and after completion of investigation, he filed final report. During cross examination, he stated that he did not examine any independent witnesses at the place of seizure and no finger prints were traced at the place of scene of offence. He denied the suggestion that ccls-1 to 3 are no way concerned with this case and no property was seized from the possession of ccls-1 to 3.

17.On perusal of evidence of P.W.1 it shows that the theft was committed in the house of P.W.1 in the absence of P.W.1. P.W.1 categorically stated before the Board that he found that the doors of bedrooms are break opened and all the articles and clothes are scattered on the floor. He categorically stated that no gold ornaments or any other articles are subjected to theft. So admittedly no property is stolen from the house of

P.W.1 even though the offenders entered into the house of P.W.1. The evidence of P.W.2 is that he lost his bike when he parked the same infront of his house and later he gave report. In this case, the police filed final report by combining three crimes. PW.1 and P.W.2 are the defacto complainants in

Crime No.64/2017 and crime No.235/2017 respectively. In this case, the prosecution failed to examine the defacto complainant in crime No.13/2017 8 JCC 23/2018, dt.11.03.2020 for the reasons best known to it. So the prosecution at outset failed to prove that a theft was committed in crime No.13/2017. Neither P.W.1 nor P.W.2 stated that they have seen the ccls committing theft. So there is no direct evidence or indirect evidence shows that ccls had committed theft in the house of P.W.1 and P.W.2. Hence, the prosecution had failed to prove the guilt of the ccls for the offence under Sec.457, 380 or 411 IPC in all the above said three crimes.

18. POINT NO. 2:- To prove the offence under section 411 of IPC., the prosecution has to prove that ccls are in the possession of M.Os.1 and 2 having knowledge and reason to believe that M.Os.1 and 2 are the stolen properties. According to the case of prosecution, M.O.1 and M.O.2 are seized from the possession of ccls by P.W.4 in the presence of P.W.3. The counsel for ccl vehemently argued that P.W.3 is not an official witness and he is stock mediator to Sarpavaram P.S. and P.W.3 acted as a mediator in several cases pertaining to the police station of Sarpavaram and hence prayed the court to acquit the ccls. During cross examination, P.W.2 stated that he knows the contents of mediator report and the mediator report was drafted by the constable. But during chief examination, P.W.3 stated that he drafted the mediator report. P.W.3 also admitted that he read the contents of mediator report before entering into the witness box and further he stated that he drafted 20 to 30 mediator reports till then. So the evidence of P.W.3 categorically shows that he is a stock mediator to the police station and he read the contents of mediator report before entering into the witness box.

The prosecution did not put forth the reasons before the board for choosing

P.W.3 as the mediator and admittedly P.W.3 is not a official witness and is also not the local inhabitant of the place of the seizure. On one hand, P.W.3 is stating that mediator report was drafted by him and during cross examination, he stated that mediator report was drafted by the police.

9 JCC 23/2018, dt.11.03.2020

During cross examination P.W.4 also stated that he did not examine any independent witness at the place of seizure and he also stated that he does not know whether P.W.3 acted as a mediator in several cases pertaining to their police station. P.W.4 being an investigating officer should able to state the reasons before the board for securing P.W.3 as a mediator, but P.W.4 bluntly stated before the board that he does not know whether P.W.3 acted as mediator in several cases pertaining to their police station. P.W.4 also stated that the mediator report was drafted by the police constable. The evidence of

P.Ws. 3 and 4 is quite contradictory with each other about the person who drafted the mediator report. In this case, the police failed to follow the procedure contemplated under Sec.100(5) of Cr.P.C. and hence the seizure is itself doubtful. Hence the above point is answered in favour of ccls and against the prosecution.

19.In the result, ccls 1 to 3 are found not guilty for the offence under section 457,380 or 411 of IPC and are acquitted under the section 255(1) of

Cr.P.C. The bail bonds of ccls 1 and 3 shall stand cancelled after lapse of six months. M.O.1 which was given to P.W.2 vide Crl.M.P.681/2019 dt.

21.11.2019 to interim custody shall become absolute after lapse of appeal time. M.O.2- shall be given to its owner after lapse of appeal time. CCL-2 is in observation home and hence ccl-2 shall be released forthwith.

Dictation to the Stenographer corrected and pronounced by me in open court on this the 11 th day of March, 2020.

Sd/Smt.D.Sreedevi, Prl.Magistrate for JJB, Rajahmahendravaram

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For prosecution : For CCL :none

P.W.114.11.2019Rekhapalli Rambabu

P.W.221.11.2019G. Chandra Sekhar 10 JCC 23/2018, dt.11.03.2020

P.W.304.12.2019Katta Srinivas

P.W.409.01.2020P. Satyanarayana Reddy

EXHIBITS MARKED

For Prosecution: For CCL : none

Ex.P1Report in Cr.No.64/2017 Ex.P2Report in Cr.No. 235/2017

Ex.P3Mediator report

Ex.P4 FIR in Cr.No.13/2017

Ex.P5Rough sketch In Cr.No.13/2017

Ex.P6FIR in Cr.No.64/2017

Ex.P7Rough sketch In Cr.No.64/2017

Ex.P8FIR in Cr.No.235/2017

Ex.P9Rough sketch in Cr.No.235/2017

MATERIAL OBJECTS

M.O.1 : Motorcycle bearing Nol.AP 05 CJ 2411

M.O.2 : The Samsung cellphone. 

Sd/Smt.D.Sreedevi,

PRL.MAGISTRATE FOR JJB,

Rajahmahendravaram.

//TRUE COPY//

PRL.MAGISTRATE FOR JJB,

Rajahmahendravaram.

11 JCC 23/2018, dt.11.03.2020

CALENDAR

BEFORE THE PRL. MAGISTRATE FOR JUVENILE JUSTICE BOARD CUM

III ADDL.J.F.C.MAGISTRATE :: Rajahmahendravaram

PRESENT: Smt.D.Sreedevi, Prl. Magistrate for JJB, Rajahmahendravaram.

J.C.C.No.23 /2018

Dates of : 

Offence:: 08.01.2017, 26.02.2017 & 17.07.2017 Complaint:: 09.01.02017, 27.02.2017 & 18.07.2017 Apprehension of Juvenile: 14.08.2017 Release on Bail : ­­ Commencement of Trial : 13.04.2018 Close of trial:: 09.01.2020 Sentence or order:: 11.03.2020 Explanation for delay : Due to non production of Prosecution Witnesses in time.

Name of complainant : State Represented by Sub­Inspector of police, Sarpavaram P.S., (Cr.Nos.13/2017, 64/2017 and 235/2017)

Name of the juvenile : 1. Javvaduli Manikanta @ Kasi, Viswanadh @ Paperodu, S/o. Sathibabu, Aged 16 years, D.NO.68-8-18, Vidyutnagar, Kakinada.

2. Challa Naga Siva Manikanta @ nani, S/o. Late Govindu, aged 16 years, D.No.68-7-5/3, Jetla Pedakapu Veedhi, Near gokulam Ashok Nagar, kakinada.

3. Ummidi Immanuyelu S/o. Apparao, aged 16 years, D.NO.3-192, Thuphan Building Street, Vakalapudi, Kakinada. 

Offence : U/Sec.457, 380 or 411 of IPC

Plea of the juvenile : Not guilty

Finding : Found not guilty

Sentence or Order:In the result, ccls 1 to 3 are found not guilty for the offence under section 457,380 or 411 of IPC and are acquitted under the section 255(1) of Cr.P.C. The bail bonds of ccls 1 and 3 shall stand cancelled after lapse of six months. M.O.1 which was given to P.W.2 vide

Crl.M.P.681/2019 dt. 21.11.2019 to interim custody shall become absolute

after lapse of appeal time. M.O.2- shall be given to its owner after lapse of appeal time. CCL-2 is in observation home and hence ccl-2 shall be released forthwith. Sd/Smt.D.Sreedevi,

 PRL. MAGISTRATE FOR J J B,

Rajahmahendravaram. Copy submitted to the Hon’ble Chief Judl. Magistrate Cum­Prl.Senior Civil

Judge, Rajahmahendravaram for favour of information.

// TRUE COPY//

1 JCC.No.32/2019 dt:19.03.2020

BEFORE THE PRL. MAGISTRATE FOR JUVENILE JUSTICE BOARD CUM

III ADDL.J.F.C.MAGISTRATE :: RAJAHMAHENDRAVARAM

PRESENT: Smt.D.Sreedevi, III Addl.J.F.C.Magistrate­Cum­

Prl. Magistrate for JJB, Rajahmahendravaram.

Thursday, the 19th day of March, 2020.

J.C.C.No. 32 /2019

Between:

State: Sub­Inspector of Police, II Town CCS, Kakinada (Cr.No.196/2018) …Prosecution.

And 

V.Vadigalla Mahesh S/o. Siva, aged 15 years, D.NO.64­7­12/3, Pratapnagar, Kakinada. … Children in Conflict with Law.

This case coming on this day for final hearing before me on 19­03­2020 in the presence of the Assistant Public Prosecutor for the State and Sri T.Chakradhar, Advocate for the Child in Conflict with Law and the matter having stood over for consideration till this day, the Board delivered the following: 

FINAL ORDER

1.The Sub­Inspector of Police, II Town CCS, Kakinada filed final report against the Children in conflict with law (herein after for short referred as – the

CCL) in Cr.No.196/2018 for the offence punishable U/s. 509 of IPC.

2.The case of the prosecution, in brief, is as follows:

L.W.1/MuddadaDurgaNageswararaoisthenativeof

Rajamahendravaram and living by doing tiles work. His daughter

L.W.2/Muddada lakshmi Satya Prasanna is studying 10th class in Tagore

Convent and since 15 days, while she was going to school and returning from school, ccl was teasing her by way of beating his eye and giving kisses into the air and then she informed the same to L.W.4/Bara Mahesh, he admonished 2 JCC.No.32/2019 dt:19.03.2020 the ccl for two or three times and even after also ccl did not change his behaviour. On 22.09.2018 when L.W.4/Bara Mahesh questioned ccl , ccl revolted upon him and caught his shirt collar for which, L.W.4 slapped the ccl and later at about 8.30 pm, ccl along with his kith and kin went to the house of

L.W.4 and questioned him about beating him, which leads to a wordy conversation between the kith and kin and L.W.4.

Basing on the report given by L.W.1/Muddada Durga Nageswararao,

L.W.9/SI of Police registered a case in Cr.No.196/2018 under Sec.509, 447, 506 r/w.34 IPC and investigated into. During the course of investigation,

L.W.9/SI of Police visited the scene of offence, examined the witnesses, recorded their statements, prepared rough sketch of the scene of offences and on receipt of information, as there is no evidence with regard to allegations, he deleted the sections 447, 506 r/w.34 IPC and produced the ccl before the DPO,

Kakinada and also served 41(A) Cr.P.C. notice to the juvenile and after completion of entire investigation, filed final report against the ccl in the above case.

3.This case was taken on file for the offence punishable U/s. 509 of IPC against the CCL and was numbered as JCC 32/2019.

4.On appearance of the CCL, copies of documents were furnished to them, as envisaged under Sec.207 of Code of Criminal Procedure.

5.CCL was examined U/Sec.251 Cr.P.C. The sum and substance of allegation for the offence punishable U/s.509 of IPC as levelled against him, is read over and explained to him in Telugu. Having understood the same, the

CCL denied the offence, and claimed to be tried. 

6.To substantiate its case, the prosecution has examined P.Ws.1 to 5 and got marked Exs.P1to Ex.P3.

3 JCC.No.32/2019 dt:19.03.2020

7.After completion of the prosecution side evidence, CCL was examined U/s 313 Cr.P.C with regard to the incriminating material found against him for which he denied and reported no defence evidence.

8. Heard both sides arguments submitted by the Learned APP and Counsel for the CCL.

9.Now the point for determination is :

“Whether the prosecution proved the guilt of CCL for the offence 

punishable U/s. 509 of IPC beyond all reasonable doubt?” 

10.The prosecution contended that the CCL is involved in the commission of offence U/Sec. 509 of IPC . The prosecution alleging that the CCL is liable for punishment U/Sec.509 of IPC.

11.The contention of the CCL is total denial of prosecution allegations leveled against him. He contended that he was falsely implicated in the present case and he is no way concerned with the present case. As such the burden heavily lies on prosecution to prove that the CCL committed the alleged offence.

12.In order to prove its case, the prosecution examined P.Ws.1 to 5 and got marked Exs.P1 to P3. Among the prosecution witnesses, P.W.1 is the De­facto complainant, P.W.2 is the mother of victim girl, P.W.3 is the victim girl, P.W.4 is the neighbour of P.W.1, P.W.5 is the investigating officer. Out of the documents exhibited by the prosecution, Ex.P1 is the Report of P.W.1, Ex.P2 is the FIR,

Ex.P3 is the rough sketch. 

13. POINT:The father of victim girl is examined as P.W.1 and he deposed that on 28-09-2018 at about 8-30 p.m., Ccl and his family members and the others numbering in 32 to 40 came to his house, pushed the gate forcibly 4 JCC.No.32/2019 dt:19.03.2020 and raised cries stating that they will kill them and he came to know through

L.W.4/B.Mahesh that ccl used to tease his daughter and the said

LW.4/B.Mahesh admonished the ccl for three times and then ccl stated the same to his parents and so the parents of ccl and their relatives came to their house, then he went to the police station and gave report to the police.

During cross examination, he deposed that his daughter did not state to him and his wife that ccl is teasing her and he did not sustain any injuries and he did not state the names of those 40 to 50 persons who came to his house.

He denied the suggestions that in anticipation of giving report by the parents of ccl, they gave present report against the ccl falsely and he used to raise the disputes with all the people in the area.

14.The mother of victim girl is examined as P.W.2 and she deposed deposed that in the year 2018, her daughter is studying 10th class at Tagore convent, Kakinada and used to go to school daily on bicycle and she came to know that ccl used to make signs, by giving flying kisses and behaving indecently towards her daughter through lw.4/B.Mahesh and said B.Mahesh admonished the ccl, on 22-9-2018 procession of lord vinayaka had taken place and on that day also ccl made signs towards her daughter and again her daughter stated the same to lw.4./B.Mahesh and the said lw.4/B.Mahesh admonished the ccl on that day also, ccl stated the same to his parents and the parents of ccl, ccl and 40 to 50 members came to her house and pushed the gate of their house forcibly and came inside and raised the dispute with her husband, the mother of ccl abused her daughter in filthy language and the ccl and their parents threatened them that they will kill them and on 24- 9-2018 her husband gave report to the police of II town ccs Kakinada. During cross examination, she deposed that she did not see the ccl teasing her daughter and she also did not see L.W.4/Bara Mahesh admonishing the ccl.

She denied the suggestion that ccl and his parents did not come to her house 5 JCC.No.32/2019 dt:19.03.2020 and did not raise any altercation and ccl never teased her daughter.

15.The victim girl is examined as P.W.3 and she deposed that Ccl used to tease her while she was going to the school, on that she stated the same to L.W4/B.Mahesh and the said Mahesh stated that he would admonish the ccl., but ccl did not hear the same and again on 22-9-2018 ccl teased her and threatened her by showing his finger and by putting his tongue outside and again she stated to lw.4/B.Mahesh and the said Mahesh questioned ccl and on the same day, at about 8-30 p.m, ccl and his uncle and sister and his other family members came to her house and abused her in filthy language and they tried to beat the gate and on the next day, herself and her father went to the police station and gave report to the police. During cross examination, she admitted that the matter was placed before the elders and ccl and his parents stated apology to them. She denied the suggestions that ccl and his family members did not come to her house and did not raise any altercation and did not abuse her in filthy language and she is deposing at the instance of her parents.

16.P.W.4 is the neighbour and he deposed that Pw.3 stated to him that ccl is teasing her, then he asked ccl for first time to mend his ways and later pw.3 again stated to him that ccl had threatened her, again he admonished ccl and on 22-9-2018 at about 7-30 to 8 p.m. the relatives of ccl numbering in 30 to 40 and ccl came to his house and had pushed away the gate and pounced on him and on the next day pw.1 gave report to the police. During cross examination, he deposed that ccl and PW.1 settled the matter by coming to an understanding that they should not file cases against each other and should not raise the disputes. He further deposed that he did not see the ccl teasing P.W.3 and there are no previous disputes between ccl and

P.W.1. He denied the suggestions that there are misunderstandings between the father of ccl and PW..1 and so the present false report was given against 6 JCC.No.32/2019 dt:19.03.2020 the ccl and for that reason, he is deposing at the instance of P.W.1.

17. P.W.5 is the investigating officer and he deposed about registration of a case in Cr.No.196/2018 under Sec.447, 509, 506 IPC basing on the report of

P.W.1 on 24.09.2018, examined the witnesses, visited the scene of offence and prepared rough sketch and during the course of investigation, he served notices under Sec.41-A Cr.P.C. to ccl on 29.09.2018 and deleted section 447 and 506 r/w.34 IPC and filed final report for the offence under Sec.509 IPC completion of investigation.

18.To prove the offence under Sec.509 of IPC, the prosecution has to prove that ccl had uttered any word, made any sound or gesture or exhibited any object intending that such word or sound shall be heard by such women and such act intrudes upon the privacy of such women.

19.In this case, the father and mother of the victim girl is examined as P.Ws. 1 and 2 and the victim girl is examined as P.W.3. The evidence of

P.Ws. 1 and 2 is that they came to know that ccl used to tease their daughter.

P.W.2 stated that she came to know that ccl used to make signs, by giving flying kisses and used to behave indecently towards her daughter and she came to know the same through L.W.4/B. Mahesh. But the victim girl i.e.

P.W.3 simply stated before the board that ccl used to tease her. P.W.3 did not state about the specific words uttered by the ccl and she also did not depose

before the board about the gestures and signs made by ccl towards her. P.W.3

stated that on 22.09.2018, ccl teased her and threatened her by showing his finger and by putting his tongue outside. Sec.509 of IPC contemplates that the act done by the offender should be of a nature that it intrudes into the privacy of a women and such act should be done by the offender with the intention of insulting the modesty of a woman. The act of ccl showing his 7 JCC.No.32/2019 dt:19.03.2020 finger and putting his tongue outside towards P.W.3 does not fall under the acts and gestures stated under Sec.509 of IPC. P.W.3 did not state before the board about the words used by ccl towards her. In the absence of such evidence , the ingredients of Sec.509 of IPC are not attracted. P.W.1 and P.W.2 categorically stated that they came to know that ccl is teasing P.W.3.

According to the case of prosecution, the victim girl stated the acts of ccl to

P.W.4 and P.W.4 admonished the ccl. P.W.4 also stated before the board that ccl used to tease P.W.3 and he categorically stated during the cross examination that he did not see the ccl teasing P.W.3. Moreover P.W.4 did not state before the board about the words used by ccl while teasing P.W.3. The investigating officer admitted in his cross examination that Ex.P1 report shows that the incident was happened on 22.03.2018 and he further stated that the report was given on 24.09.2018. P.W.1 did not give any reasons in his report for causing delay in giving report to the police. The prosecution has failed to explain the delay in giving report to the police and this is also a fatal to the case of the prosecution. Hence in the light of the above discussion , the prosecution failed to pove the guilt of the ccl for the offence under

Sec.509 of IPC.

20.In the result, CCL is found not guilty for the offence U/Sec. 509 of

IPC and is acquitted U/Sec.255(1) of Cr.P.C. The bail bonds of the CCL and his sureties shall stand cancelled after lapse of six months. No property is produced in this case and hence no property order is passed.

Dictation to the Stenographer transcribed, corrected and pronounced by me in open Board on this the 19 th day of March, 2020.

Sd/Smt.D.Sreedevi, Prl.Magistrate for Juvenile Justice Board, Rajahmahendravaram.

8 JCC.No.32/2019 dt:19.03.2020

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For prosecution : For CCL :none

P.W.127.09.2019M. Durga Nageswara Rao P.W227.09.2019M. Surya Kumari, P.W.316.10.2019M. Lakshmi Satya Prasanna P.W.423.10.2019Bara Mahesh P.W.514.02.2020B. Sankara Rao

EXHIBITS MARKED

For Prosecution: For CCL : none

Ex.P1Report given by P.W.1. Ex.P2FIR in Cr.No.196/2018 Ex.P3Rough sketch

MATERIAL OBJECTS­Nil

Sd/Smt.D.Sreedevi, Prl.Magistrate for Juvenile Justice Board, Rajahmahendravaram.

// TRUE COPY//

 Prl.Magistrate for Juvenile Justice Board, Rajahmahendravaram.

9 JCC.No.32/2019 dt:19.03.2020

CALENDAR 

BEFORE THE PRL. MAGISTRATE FOR JUVENILE JUSTICE BOARD CUM

III ADDL.J.F.C.MAGISTRATE :: Rajahmahendravaram

PRESENT: Smt.D.Sreedevi, Prl. Magistrate for JJB, Rajahmahendravaram.

J.C.C.No. 32 / 2019

Dates of  : 

Offence:: 22.09.2018 Complaint:: 24.09.2018 Apprehension of Juvenile: ­­ Release on Bail : ­­ Commencement of Trial : 12.09.2019 Close of trial:: 31.01.2020 Sentence or order:: 19.03.2020 Explanation for delay : Due to non production of Prosecution Witnesses in time.

Name of complainant : State: Sub­Inspector of Police, II Town CCS, kakinada

Name of the juvenile : V Vadigalla Mahesh S/o. Siva, aged 15 years, D.NO.64­7­12/3, Pratapnagar, Kakinada.

Offence : U/Sec. 509 of IPC

Plea of the juvenile : Not guilty

Finding : Found not guilty 

Sentence or Order: 

In the result, CCL is found not guilty for the offences U/Sec. 509 of

IPC and is acquitted U/Sec.255(1) of Cr.P.C. The bail bonds of the CCL

and his sureties shall stand cancelled after lapse of six months. No

property is produced in this case and hence no property order is passed.

Sd/Smt.D.Sreedevi, Prl.Magistrate for Juvenile Justice Board, Rajahmahendravaram.

Copy submitted to the Hon’ble Chief Judl. Magistrate Cum­Prl.Senior Civil Judge, Rajahmahendravaram for favour of information // TRUE COPY//

1 C.C.347/2017 dt.17.03.2020

IN THE COURT OF III ADDITIONAL JUDICIAL MAGISTRATE OF FIRST

CLASS, RAJAHMAHENDRAVARAM

PRESENT: SMT. D. SREEDEVI

III ADDITIONAL JUDICIAL FIRST CLASS MAGISTRATE,

RAJAHMAHENDRAVARAM.

Tuesday, the 17th day of March, 2020

C.C. No. 347 / 2017

BETWEEN:

State: Sub Inspector of Police, III Town L & O P.S,

Rajamahendravaram. ....COMPLAINANT

AND

Pathan Jameer S/o. Subhani,

aged 33 years, D.No,.6-6-31, Nuttakki

Village, Mangalagiri Mandal, Guntur Dist. ....ACCUSED

This case coming up before me on 10.03.2020, for final hearing in the presence of learned A.P.P, for the complainant and of Sri S. Suresh Babu, learned counsel for the accused and having stood over till this day for consideration, this court delivers the following:

J U D G M E N T

The State represented by the Sub-Inspector of Police, III Town

L&O Police Station, Rajamahendravaram filed the charge sheet against the above accused for the offence under Sec.304-A IPC. (Gandham

Veerababu is hereinafter referred as "The Deceased").

2. The case of the prosecution is a nut shell is as follows:

L.W.1-Gandham Saraswathi is resident of Krishna Nagar,

Seethampeta, Rajahmundry, she is the mother of deceased and she is the defacto complainant in this case. On 05.10.2016 at 8.00 AM, the deceased/ Gandham Veerababu went to duty on his Bajaj CT 100 motorcycle bearing No.AP05 AN 0695 and while returning on the way at about 10.30 pm, when he reached in between 18-19 pillars on Kovvur to

Diwancheruvu leading Gammon India Bridge, accused driver of Tata turbo 2 C.C.347/2017 dt.17.03.2020

Van bearing No.AP 04 U 9528 has stationed his vehicle in the middle of the road with negligent manner, on that the deceased has hit the crime vehicle on its back, as a result of which, the deceased has sustained fatal injuries and he died on the spot. On information, L.Ws.1 to 5 who are relatives of the deceased came to the scene and later L.W.1 gave report to police.

On receipt of written report from L.W.1/Gandham Saraswathi,

L.W.12/SI of Police, III Town L & O P.S. registered a case in Cr.No. 472/2016 under Sec.304-A IPC and investigated into. During the course of investigation, L.W.12/SI of police visited the scene of offence, examined and recorded the statements of witnesses, drew the rough sketch of the same and also drafted an observation report. He also conducted inquest over the dead body of the deceased in the presence of inquest panchayatdars and blood relatives of the deceased and also arrested the accused and the CAS District GGH, Rajahmundry who conducted autopsy over the dead body of the deceased issued P.M. report opining that the deceased died due to shock and Hemorrhage due to multiple injuries associated with injury to vital organ brain. The Motor Vehicle Inspector who inspected the crime vehicle issued MVI Report opining that the accident was not due to any mechanical defects of the crime vehicle. After completion of investigation, L.S.12/SI of Police, III Town L&O police station filed the charge sheet.

3.The case was taken on file for the offence under Sec. 304-A

I.P.C against the above accused.

4. On appearance of accused, copies of documents were furnished to him as contemplated under section 207 Cr.P.C.

3 C.C.347/2017 dt.17.03.2020

5.Accused was examined under section 251 Cr.P.C by putting the substance of the accusations levelled against him for the offence under

Sec-304-A I.P.C, for which he pleaded not guilty and claimed to be tried.

6.In order to establish its case, the prosecution examined P.Ws.1 to 7 and got marked Exs.P.1 to P8.

7. After closure of the prosecution evidence, the accused was examined under Sec. 313 Cr.P.C., regarding the incriminating material appearing against him in the evidence of prosecution witnesses, for which he denied the same and reported no defence evidence.

8.Heard both sides arguments submitted by the Learned APP and counsel for the accused.

9.Now the point for determination is:

“Whether the prosecution proved the guilt of the

accused U/s.304-A of IPC beyond the reasonable

doubt ?”

10.POINT : As already stated, the prosecution examined P.Ws.1 to 7 and got exhibited Exs.P1 to P8. P.W.1 is the mother of deceased and she deposed that on 05.10.2016 at about 8.00 am, her son went to Gopalapuram village on his bike to attend the duty and while returning back to home at 9.30 pm, when he reached to Katheru gaman bridge, one van was stopped on the road between the pillars 18 to 19 without giving any signal lights and then, her son dashed the said van and died on the spot, one person made a phone call to her through the phone of his son informed the same to her and then herself and her daughter went to the place of accident and by the time, she reached to the place of scene of offence her son is on the floor and the van driver was not present at the place of scene of offence and then she went to the police station and gave 4 C.C.347/2017 dt.17.03.2020 report to police. During cross examination, it was suggested to P.W.1 that the owner of the van is no way concerned with the accident and the accident was happened due to the negligence of her son and the said van is no way concerned to the accident.

11. P.W.2 is the sister of the deceased and she deposed that on 05.10.2016 at about 10.00 pm, his brother is returning from Gopalapuram village to the house on his bike and by the time, he reached to Katheru Gaman bridge, a van was parked in the middle of the road in between 18 to 19 pillars without giving any signal light negligently, so her brother dashed the van from backside and fell down and sustained fatal injuries, her brother died at the spot and at about 10.00 pm, one person made a phone call through the cell phone of her brother and informed her about the accident and then herself and her mother went to the place of accident, she saw her brother on the road and he is died and van bearing No.AP04 U 9528 and bike of his brother was present at some distance from the van and the dead body of her brother is on the floor nearer to those vehicles. During cross examination, she deposed that she did not see the accident and she came to know the same through third persons and she cannot say the colour of the van i.e. crime vehicle. She denied the suggestions that her brother died due to his negligence, van driver is no way concerned with the accident and the present case was foisted for the purpose of insurance.

12.P.W.3 did not support the case of prosecution and he turned hostile. P.W.3 deposed that he do not know the accused, in the year 2016 his van was subjected to an accident at Rajahmundry bridge, he took his van from police and he came to know that one person was died in an accident.

13.P.W.4 is mediator for scene observation and he deposed about observing scene of offence under the cover of scene observation report.

5 C.C.347/2017 dt.17.03.2020

He is also one of the Inquest panchayatdars and he deposed about conducting inquest over dead body of deceased under the cover of inquest report. During cross examination, he deposed that he did not observe whether the back tyre of the van was burst, he did not observe why the van was stopped on the middle of the bridge and he did not observe whether any stones were placed beside the van and whether there are traffic signals beside the van. He denied the suggestion that the scene observation report was drafted in the hospital, he did not go to place of scene of offence and he was not present at the time of inquest.

14.P.W.5 is the MVI and he deposed about inspecting the crime vehicle and issuance of Ex.P5 MVI report. He opined that the accident was occurred not due to any mechanical defects of the crime vehicle. During cross examination, he deposed that he cannot say how the damage was caused to the right side of the vehicle.

15.P.W.6 is the medical officer and he deposed about conducting of autopsy over the dead body of the deceased and he further deposed about issuance of Ex.P6 Postmortem report.

16.PW7 is the investigating officer and he deposed about registration of the case, proceeding the scene of offence, preparation of rough sketch and scene observation report, examining the witnesses, conducting inquest and receipt of postmortem report, his investigation in this case and filing of charge sheet. During the course of cross examination, P.W.7 denied the suggestions that he foisted the present false case against the accused and accused is no way concerned with this 6 C.C.347/2017 dt.17.03.2020 case and the present case was registered for the purpose of insurance for the family of deceased.

17.In order to prove the offene under sec. 304-A of IPC the prosecution has to prove that the accused is the driver of the crime vehicle at the relevant point of accident and the accused drew the vehicle in a rash and negligent manner and the prosecution has to prove that there is a close proximity between the death of the deceased and rash and negligent act of the accused.

18.On perusal of evidence of P.W.1 and P.W.2 they categorically stated that they came to know about the accident and then they went to the place of scene of offence. P.W.1 and P.W.2 categorically stated that they had seen the van at the place of scene of offence and the driver of the vehicle is not present at the scene of offence. So the evidence of P.Ws. 1 and 2 is not helpful to the prosecution to establish the identity of the accused. According to the case of the prosecution, P.W.3 is the owner of the crime vehicle and he brought the accused to the police station and handed-over to the police. But P.W.3 deposed before the court that he does not know the accused and in the year 2016 his van was subjected to an accident at Rajahmundry bridge and he came to know that one person was died in the accident. P.W.3 did not support the case of prosecution and turned hostile. Though the learned APP cross examined P.W.3 nothing was elicited in favour of the prosecution. The evidence of P.W.4 is that he visited the scene of offence and observed the scene of offence and scene observation report was drafted by L.W.9/K. Hanuman Prasad in his presence and he signed on the scene observation report and P.W.4 further 7 C.C.347/2017 dt.17.03.2020 stated that an inquest was conducted his presence by the police. P.W.5 is

MVI and P.W.6 is the doctor who had done postmortem examination on the dead body of the deceased and P.W.7 is the investigating officer. Though the evidence of P.W.5 to 7 speaks about the happening of an accident and death of the deceased, but their evidence is not helpful to the prosecution to establish the identity of the accused. On perusal of the entire evidence on the record, there is no iota of evidence to show that the accused is the driver of the crime vehicle at the relevant point of accident. When the prosecution failed to prove the fact that the accused is the driver of the crime vehicle at the relevant point of accident, then there is no necessary to discuss whether accused drove the vehicle in rash and negligent manner and caused the death of the deceased. In the light of the above discussion the prosecution has miserably failed to guilt of the accused.

Hence the above point is answered in favour of the accused and against the prosecution.

19.In the result, accused is found not guilty for the offence punishable U/s 304-A of IPC and is acquitted U/s 255(1) Cr.P.C. The bail bonds of accused and his sureties shall stand cancelled after lapse of six months. No property is produced in this case and hence no property order is passed.

Typed to dictation by the personal assistant, typed by her, corrected and pronounced by me in open court on this the 17 th day of March, 2020.

Sd/Smt.D.Sreedevi,

III ADDL J.F.C.MAGISTRATE,

Rajahmahendravaram 8 C.C.347/2017 dt.17.03.2020

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For prosecution : For Accused : none

PW114.10.2019Gandham Saraswathi PW214.10.2019Madhavarapu Venkata Ratnam PW310.12.2019Pokala Vinay Kumar PW410.12.2019Chintala Gopala Krishna PW5 30.12.2019I. Sainadh PW606.01.2020Dr.N.P. Padmasri Rani PW720.01.2020Ch. Suman

EXHIBITS MARKED.

For Prosecution: For Accused : none

Ex.P1Report given by P.W.1. Ex.P2 161 Cr.P.C. statement of P.W.3. Ex.P3 Scene observation report. Ex.P4 Inquest report. Ex.P5 MVI report. Ex.P6 Postmortem certificate of deceased Ex.P7 FIR in Cr.No.472/2016. Ex.P8 Rough sketch.

MATERIAL OBJECTS-Nil

Sd/Smt.D.Sreedevi,

III AJFCM, RJVM

// TRUE COPY//

III ADDL J.F.C.MAGISTRATE,

Rajahmahendravaram 9 C.C.347/2017 dt.17.03.2020

CALENDER

IN THE COURT OF III ADDITIONAL JUDICIAL MAGISTRATE OF FIRST

CLASS, Rajahmahendravaram

PRESENT: Smt.D.Sreedevi, III Addl. Judl. Magistrate of First Class

C.C.No. 347 /2017

Dates of :

Offence:: 05.10.2016

Complaint:: 06.10.2016

Apprehension of Accused: : --

Release on Bail : --

Commencement of Trial: : 30.04.2018

Close of trial:: 20.01.2020

Sentence or order:: 17.03.2020

Explanation for delay : Due to non-production of prosecution witnesses in time.

Name of prosecution : The State: Sub-Inspector of police, III Town (L&O) Police Station, Rajahmahendravaram. (Cr.No.472/2016)

Name of the accused : Pathan Jameer S/o. Subhani,

aged 33 years, D.No,.6-6-31, Nuttakki

Village, Mangalagiri Mandal.

Offence : U/s.304-A of IPC

Plea of the accused : Not guilty

Finding : Found not guilty

Sentence or Order:

In the result, accused is found not guilty for the offence punishable U/s 304-A of IPC and is acquitted U/s 255(1) Cr.P.C. The bail bonds of accused and his sureties shall stand cancelled after lapse of six months. No property is produced in this case and hence no property order is passed. Sd/Smt.D.Sreedevi, III Additional Judicial Magistrate of First Class, Rajahmahendravaram. Copy submitted to the Hon’ble Chief Judl. Magistrate Cum-Prl. Senior Civil

Judge, Rajahmahendravaram for favour of information.

// TRUE COPY//