Smt.E.Prasuna

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APKD0B0000532017

IN THE COURT OF THE CIVIL JUDGE (SENIOR DIVISION),

RAYACHOTY

Present:- Smt. Dr. E.Prasuna,

Civil Judge (Senior Division), Rayachoty.

Monday, this the 27 th day of April, 2026

O.S.No.23 of 2017

Maddiralla Venkateswarlu, S/o Gurraiah, aged 58 years, Hindu, cultivation, residing at Edigapalli, H/o Thimmasamudram village, T.Sundupalli mandal, Kadapa District. … Plaintiff

Vs

1.Puthumbaku Doraswamy Naidu, S/o Varadaiah Naidu, aged 40 years, Hindu, previously worked as News Reporter, resident of T.Sundupalli town and mandal, Kadapa District.

2.Gonuguntla Anasuyamma, W/o Late Ramesh Naidu, aged 50 years, Hindu, Housewife, residing at T.Sundupalli town and mandal, Kadapa District. … Defendants

This suit is coming on 26.03.2026 for final hearing before this court in the presence of learned Advocate K.Ravi Sankar, for plaintiff and learned Advocate M.Nageswara Rao, for defendant No.1 and learned Advocate K.Eswaraiah, for defendant No.2 and upon hearing on both sides and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

The suit is filed by the plaintiff for cancellation of registered sale deed dated 20.03.2017 in respect of the suit schedule property bearing document No.265 of 2017 in favour of defendant No.2 2 executed by defendant No.1 and for costs of the suit, in the interest of justice.

2. The brief averments of the plaint are as follows:-

The plaintiff is the lawful owner of the suit schedule property and having purchased the same from his vendor G.Ramesh Naidu (husband of D2) in the year of 16.09.1998 vide registered sale deed document No.1104/1998, since then the plaintiff is absolute owner of the schedule property. The defendant No.1 is the sister’s son of defendant No.2 and the vendor by name G.Ramesh Naidu is the husband of defendant No.2. The plaintiff further submits that after purchase of the said property the plaintiff constructed a Zinc sheet shed over the property. After completion of zinc sheet shed, on 15.09.1999 the plaintiff leased out the said property to G.Ramesh

Naidu (husband of D2) who is the vendor of the plaintiff. The agreement also executed by the husband of defendant No.2 in favour of the plaintiff on the same day i.e., 15.09.1999 agreeing to pay the monthly rent of Rs.1,300/- per month. Accordingly, the husband of defendant No.2 started a business (hotel) in the said property along with his wife (D2), mother (late Lakshumama) and his brother (Venugopal Naidu). The husband of defendant No.2 paid rent up to

April, 2000 for the said property. The husband of defendant No.2 became default in paying rent to plaintiff from May 2000 in spite of repeated demands made by the plaintiff.

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The plaintiff further submits that he filed a suit i.e., O.S.

No.43/2001 before Principal Junior Civil Judge’s Court, Rayachoty against the defendants No.1 to 3 for eviction and delivery of the suit schedule property and consequential relief of payment of rent.

Accordingly the Hon’ble Senior Civil Judge, Rayachoty as per orders in

A.S. No.18 of 2006 directed the defendants to evict the suit schedule

property and deliver the possession to the plaintiff with costs. During the pendency of the suit the husband of defendant No.2 i.e., Ramesh

Naidu was died. As per the judgment in A.S. No.18/2006 the plaintiff (D.Hr) filed E.P. No.24/2013 on the file of Principal Junior Civil Judge’s

Court, Rayachoty for delivery of possession of the schedule property.

During the pendency of the E.P. the mother-in-law of defendant No.2 also died. The Hon’ble Court allowed the Execution petition on 03.02.2017 and directed the defendant No.2/J.Dr to deliver the property to the plaintiff/D.Hr.

The plaintiff further submits that, after delivery orders passed by the Principal Junior Civil Judge, Rayachoty in E.P. No.24/2013 the defendants and attesters hatched a plan to grab the property for wrongful gain. In order to execute their evil intention, on 20.03.2017 the defendant No.2 executed a document in favour of defendant No.1, bearing No.265/2017 and registered the same by managing the Sub

Registrar. The 2nd defendant has no right or title over the property to do so. The defendants and attesters are created the said document with the undo influence of the defendant No.1 in order to grab plaint 4 schedule property for their wrongful gain. After obtaining the sham and nominal document from the 2nd defendant the 1st defendant is trying to occupy the same under the guise of the sale dated 20.03.2017 under document No.265/2017. While so 10 days back the gossips are spread in the village that the 2nd defendant is sold the plaint schedule property to 1st defendant; hence the plaintiff forced to inquire about the same and rushed to file the suit for cancellation of the document No.265/2017 dated 20.03.2017. The defendants are very powerful and they are having support of anti social elements, the poor plaintiff did not match to mighty defendants. Under the guise of the said document the defendant No:1 is trying to alienate the property, if the defendants alienated the property to third parties it will be leads multiplicity proceedings. Hence, the suit.

3. On the other hand, the defendant No.1 filed written statement and the same was adopted by the defendant No.2 and denied the allegations mentioned in the plaint and submits that the plaint schedule property was not purchased by the plaintiff as alleged by him. The plaint schedule property was purchased by defendant No.1 from the rightful owner of 2nd defendant and the 1st defendant is in possession and enjoyment since the date of purchase i.e., 20.03.2017. The 1st defendant admitted about the filing of the suit and E.P. after death of said Ramesh Naidu and mother-in-law of defendant No.2 but the suit schedule property is not shown in the said 5

O.S. No.43/2001 and E.P No.24/2013 on the file of Principal Junior

Civil Judge’s Court, Rayachoty, so the property shown in the said suit

and E.P. is not mentioned in the suit. So the suit schedule property never purchased by the plaintiff at any point of time. This suit schedule property not concerned to the property mentioned in O.S.

No.43/2001 and E.P. No.24/2013. He further submits that the Hon’ble court not passed any order to deliver the property shown in the suit schedule property. As per delivery order passed by the Hon’ble

Principal Junior Civil Judge’s Court, Rayachoty in E.P. No.24/2013, the

property shown as House situated in T.Sundupalli grampanchayat area of T.Sundupalli village town and mandal, Kadapa District sarkar kushki

Door No.2201/A4 an extent of 80 sq. yards out of Ac.1.24 cents bounded by East vacant site of Malepati Ramachandra and Korapati

Pitchaiah. West and North vacant site of 1st defendant and south

Rayachoty to Rayavaram road and side kalva, within the boundaries

East, west 12 feet width, North, South length 60 feet. So the property shown in the plaint schedule not one and the same as shown in the said E.P No: 24/2013 in O.S. No.43/2001 on the file of the

Principal Junior Civil Judge’s Court, Rayachoty. The 1st defendant

purchased the plaint schedule property from 2nd defendant who is the real owner and in possession of the same for valid consideration and got registered sale deed with regard to the plaint schedule property from the 2nd defendant by mentioning door number. So the plaintiff under the guise of decree and order in O.S. No.43/2001 and E.P.

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No.24/2013 trying to occupy the plaint schedule property by disposing the 1st defendant. The plaintiff never in possession and enjoyment over the plaint schedule property. The 2nd defendant was in possession and enjoyment until her alienation to the the 1st defendant and the 1st defendant is in possession and enjoying the same as a rightful owner since the date of his purchase i.e., 20.03.2017. So the question of interfering by the 1st defendant to occupy the plaint schedule property is concocted story. The Court Amin went on to deliver the E.P schedule property but he returned the warrant by mentioning that the E.P schedule property not found as per the particular mentioned in the E.P. schedule. As the plaintiff failed to occupy the plaint schedule property under the guise of orders in E.P.

No.24/2013, the plaintiff filed the suit with false allegations to knock away the valuable schedule property from the innocent and poor defendants. The plaintiff never constructed any zinc sheet shed in the suit schedule site. As per the version of the plaintiff the schedule property is zinc sheet shed but not house where as the schedule property mentioned as house in the plaint. So the allegations of the plaintiff not correct and created for the purpose of knock away the suit schedule property under the guise of false and not concerned decree and order of the aforesaid suit and E.P. The plaintiff without mentioning the door number in the schedule filed the suit by showing

Sarkar kushki D.No.2201/A4. The plaintiff ought to have mentioned door number if the schedule property is house or zinc sheet shed even 7 in the O.S. No.43/2001, A.S. No.43/2001 and E.P. No.24/2013 if he constructed zinc sheet shed. The documents filed by the plaintiff except the sale deed dated 20.03.2017, no way concerned to the plaint schedule property. The total extent in S.No.2201/A4 is A.C.

No.1.24 cents out of which the schedule property shown in O.S.

No.43/2001 and E.P. No.24/2013 not possible to identify the same.

He further submits that in fact the plaintiff with his mighty powers trying to disposess the 1st defendant from the plaint schedule property under the guise of aforesaid decree and order and occupy the plaint schedule property under coercive methods. The sale deed dated 20.03.2017 is genuine document. The said sale deed dated 20.03.2017 is not created and fabricated document and the same is not liable for cancellation as sought by the plaintiff. There is no cause of action to the suit and the suit is liable to be dismissed. Therefore, the defendants prayed the Hon’ble court to dismiss the suit with costs, in the interest of justice.

4. Basing on the above rival pleadings, settled the following issues for trial by one of my learned predecessor.

1. Whether the contention of plaintiff that he purchased suit schedule property from G.Ramesh Naidu vide document No.1144/1998, dt.16.09.1998 is true and binding on the defendants?

2. Whether the plaintiff leased out the premises by constructing zinc shed to the husband of D2 on 15.09.1999 as pleaded in the plaint?

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3. Whether the suit schedule property is not the same as that of plaint schedule property in O.S. 43/2001 and E.P.24/2013 on the file of PJCJ Court, Rayachoty as pleaded by D1 in this written statement?

4. Whether the plaintiff is entitled to seek cancellation of sale deed dt.20.03.2017 bearing document No.265/2017 in favour of D2 executed by D1 as prayed for?

5. To what relief?

5. Heard both sides. Perused the record including written arguments filed by plaintiff and D1. On behalf the plaintiff PW1 and PW2 were examined and got marked Ex.A1 to Ex.A9. On behalf the defendants

DW1 to DW4 were examined and got marked Ex.B1.

6. The learned counsel for the plaintiff argued that the originally the suit schedule property belongs to husband of D2 by name Ramesh

Naidu through Ex.A7. The said Ramesh Naidu sold the same to plaintiff vide Ex.A1. After purchasing, the plaintiff constructed a shed in the suit schedule property and leased out the same to said Ramesh

Naidu on lease. On failure of payment of rent, the plaintiff filed suit for eviction and recovery of rent. The suit decreed and second appeal also ended in favour of plaintiff. While the E.P. is coming for delivery of possession, the D2 with ulterior motive created sham and nominal sale deed in favour of D1. Therefore, the plaintiff filed suit for cancellation of said sham and nominal deed executed by D2 in favour of D1 dated 20.03.2017 vide Ex.A3. Because plaintiff purchased the 9 suit schedule property in the year 1998 and E.P came for delivery in the year 2017, so the court Amin unable to identify the property for delivery because of changing of boundaries. Moreover in Ex.A9 the western boundary shown as Ramesh Naidu sheeted house. Even in

Ex.A8, where one Venugopal who is brother of said Ramesh Naidu, shown eastern boundary that is of plaintiff. Therefore it is clear the suit schedule property and property mentioned in Ex.A3 is one and the same. Hence the plaintiff is entitled for cancellation of registered sale deed dated 20.03.2017 executed by D2 fraudulently in favour of

D1 as prayed.

7.The learned counsel for defendants argued that the suit schedule property is different from the property covered under Ex.A3. The orders vide Ex.A6 was not effected stating that property not tallied.

The plaintiff who is unable to locate his property, encroaching the property of defendants to get wrongful gain. Moreover seeking for cancellation of document without declaration is not valid. Hence the plaintiff is not entitled for for cancellation of registered sale deed

dated 20.03.2017 without declaration and prayed to dismiss the suit.

8. For better understanding the issues were answered as follows:

Issue No.1:-Whether the contention of plaintiff that he purchased suit schedule property from

and

G.RameshNaiduvidedocument No.1144/1998, dt.16.09.1998 is true and binding on the defendants?

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Issue No.2:-Whether the plaintiff leased out the premises by constructing zinc shed to the husband of D2 on 15.09.1999 as pleaded in the plaint?

The contention of the plaintiff is that originally the suit schedule property belongs to husband of D2 by name Ramesh Naidu. The said

Ramesh Naidu got right and title over the suit schedule property through Ex.A7 from his mother. The said Ramesh Naidu sold the same to plaintiff vide Ex.A1 in the year 1998. The plaintiff by verifying the right and title of said Ramesh Naidu over suit schedule property, purchased vide Ex.A1. After purchasing, the plaintiff constructed a shed in the suit schedule property and leased out the same to said Ramesh Naidu on rent vide Ex.A2. On failure of payment of rent, the plaintiff filed suit for eviction and recovery of rent vide

Ex.A4. The said suit and appeal vide Ex.A5 and second appeal Ex.B1 also ended in favour of plaintiff. While E.P basing on judgment and decree of Ex.A4 is coming for delivery of property, the D2 sold suit schedule property to D1 by mentioning wrong boundaries, fraudulently to cause wrongful loss to plaintiff.

9. Though the defendants not disputed Ex.A1 and Ex.A7, their contention is that the property mentioned in Ex.A1 is not suit schedule property. The plaintiff due to inability to locate Ex.A1 schedule property, claiming suit schedule property. Moreover there was already litigation and finding about purchasing of property vide Ex.A1 by 11 plaintiff through Ex.A4 to Ex.A6. By the orders in Ex.A4 to Ex.A6, the the right of the plaintiff was declared. Therefore the plaintiff purchased suit schedule property from said Ramesh Naidu vide Ex.A1 and it was already decided even by Hon’ble Apex Court on Ex.B1.

10. Next coming to Ex.A8 which was executed by said Ramesh Naidu in favour of his brother, mentioned eastern boundary “site of

Maddirala Venkateswarlu” i.e., plaintiff. Even as per Ex.A9 which was executed by one Ramachandraiah mentioned the western boundary “Ramesh Naidu sheeted house”. Therefore it is clear that plaintiff purchased site from said Ramesh Naidu vide Ex.A1 and the fact known to the neighbors. As per Ex.A2 there was lease agreement between plaintiff and said Ramesh Naidu, basing on which , Ex.A4 to Ex.A6 litigation ran between them. Moreover as per cross examination DW.2 who stated that said Ramesh Naidu and D2 were running a hotel in the suit schedule property. Further DW2 admitted that plaintiff purchased suit schedule property from the said Ramesh Naidu in the year 1998 by way of registered sale deed and he knows the Civil litigation between plaintiff, D2 and her husband. But D2 being DW.3 stated she is a coolie in a hotel and not running hotel during lifetime of her husband and continuing the same hotel.

11. To substantiate the contention of plaintiff, he himself examined as PW.1 and one 3rd party was examined as PW.2. The plaintiff 12 exhibited Ex.A1 to Ex.A9 (The description of the documents is mentioned in Appendix of Evidence). PW.1 and PW.2 were cross examined by defendants but Nothing elicited by the defendants, from the cross examination of them to disprove the suit schedule property was not purchased by plaintiff and not leased out the same to husband of D2, except putting suggestions and those were denied by the PW1 and PW2. The mere suggestions to the witness are not evidence and there is no valid. It is well settled law that “suggestive questions cannot be held evidence of fact if denied”.

12. The defendants even failed to prove the title which is also one of important factor to consider and disprove the claim of plaintiffs.

Moreover it is needless to say title follows possession. Basing on the above discussion held supra this court is of opinion that the plaintiff purchased property vide Ex.A1 from said Ramesh Naidu who is husband of D2 and as per Ex.A2, Ex.A4 to Ex.A6, it is clear the plaintiff constructed shed and leased out the same to said Ramesh

Naidu. As such Ex.A1 is binding on defendants. Accordingly, these issue were answered in favour of plaintiff.

13. Issue No.3:-Whether the suit schedule property is not the same as that of plaint schedule property in

O.S. 43/2001 and E.P.24/2013 on the file of

PJCJ Court, Rayachoty as pleaded by D1 in this written statement?

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The contention of the defendants is that though the said Ramesh

Naidu sold a site to plaintiff but it is not the suit schedule property and it is somewhere else. The D2 who got right and title over the suit schedule property from her mother, sold the same to D1 vide Ex.A3.

To substantiate their contention, the D1 was examined as DW.1, who stated that D2 is his own maternal aunt i.e.,sister of her mother. But

D1 in his written statement mentioned he is not the sister’s son of D2.

Even D2 being DW.3 stated that D1 is her distant relative and she do not know about the parents of D1. Further DW.1 stated that the suit schedule property originally belongs to his grand mother i.e.,mother of

D2. Neither DW.1 nor DW.3 filed documents evidencing the transfer of property to D2 by her mother. Therefore on perusing the evidence of DW.1 and DW.3 there is no corroboration and they have taken different stands regarding to relationship and flow of title of suit schedule property etc. DW.3 even pleaded ignorance about the name of her mother-in-law and about the suit filed by plaintiff against her, her husband and her mother-in-law though DW.3 is one of the party for the proceedings in E.P vide Ex.A6. But she admitted that Ex.B1 appeal suit filed by her against plaintiff basing on the impugned orders of Ex.A6 and the plaintiff preferred second appeal before

Hon’ble Supreme Court. D2 being DW.3 stated that since 25 years

prior to execution of Ex.A3, she has been in possession and enjoyment of suit schedule property but no documents filed evidencing the same, even after the plaintiff disputing her right and 14 title over suit schedule property to execute Ex.A3 in favour of D1.

Admittedly at present the D1 is running a hotel in suit schedule property. Therefore all the litigation running around a hotel. But DW3 disputing that her husband run a hotel during his lifetime and she has been continuing the same. From the beginning the plaintiff constantly pleading that he constructed a sheeted shed in the property purchased by him and let out to Ramesh Naidu on lease to run a hotel. But the defendants taking different versions and contentions in written statement, chief examination and cross examination.

Therefore there is cloud cast upon the title of the D1 and the case of plaintiff is more probable than that of defendants.

14. Per contra it is the argument of the plaintiff that he purchased the property in the year 1998 and Court Amin came for delivery in the year 2017. There is every possibility for changing of boundaries by the neighbours. Therefore the Court Amin might return the Warrant

Unexecuted. The mighty defendants by knowing about the orders in

Ex.A6, changed boundaries and got fabricated Ex.A3.

15. Basing on the above discussion held supra, this court is of opinion that the suit schedule property and the plaint property shown in O.S. No.43/2001 and E.P. No.24/2013 is one and the same.

Accordingly, this issue was answered in favour of plaintiff.

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Issue No.4Whether the plaintiff is entitled to seek cancellation of sale deed dt.20.03.2017 bearing document No.265/2017 in favour of D2 executed by D1 as prayed for?

The contention of the defendants is that the plaintiff without seeking for declaration of right and title over suit schedule property, only for cancellation of document who is not a party to document, is not valid. No doubt plaintiff sought for cancellation of sale deed dated 20.03.2017 executed by D2 in favour of D1, where plaintiff is not party to the said sale deed dated 20.03.2017. It is needless to say as per Section 31 (1) of Specific Relief Act, 1963, the person who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable. The Court felt necessity to reproduce Section 31 of Act below.

Section 31.When cancellation may be ordered:- (1) Any person against whom a written instrument if void or voidable, and who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable, and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.

(2) If the instrument has been registered under the Indian

Registration Act, 1908 (16 of 1908), the Court shall also send a copy of its decree to the officer in whose office the instrument has been so 16 registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.

16. Moreover to decide whether non executant of a document can seek for cancellation of it or declaration of deed invalid. The essence of both may be suing to have the deed set aside or declared as non binding, the Court fee is only criteria. In suit for cancellation, the plaintiff has to pay Court fees for its face value, where as for declaration the plaintiff has to pay half of market value of the property. So more Court fees has to be paid for cancellation of deed than declaration. Therefore the plaintiff who paid more Court fee and not asked for declaration, is entitled to seek for cancellation of deed.

17. The defendants relied on the decision Anathula Sudhakar Vs.

P.Buchi Reddy (dead) by L.Rs and others and argued that the plaintiff failed to seek for declaration, who is not entitled for cancellation of deed as explained by Hon’ble Supreme Court in the above case. In the suit on hand, the plaintiff has reasonable apprehension who touched feet of Hon’ble Apex Court by way of second appeal – succeeded and filed a suit for cancellation of sale deed dated 20.03.2017 executed by D2 in favour of D1. This court without hesitation says this is 2nd round of litigation and already vide

Ex.A4 to Ex.A6 and Ex.B1, suits filed and decided. Therefore it is not necessary again to file suit for declaration, because no cloud cast upon the right and title of plaintiff over the suit schedule property.

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Therefore the above decision of Hon’ble Supreme Court is not came to the rescue of defendants. Therefore the plaintiff is entitled to seek cancellation of sale deed dt.20.03.2017 bearing document

No.265/2017 in favour of D2 executed by D1. Accordingly the issue is answered.

18. Issue No.5: To what relief?

Basing on the discussion stated supra in issues No.1 and 2, the suit is decreed with costs by canceling the registered sale deed

dated 20.03.2017 bearing document No.265/2017 in respect of the

suit schedule property stands in favour of 2nd defendant executed by 1st defendant. Further the Office is directed to send a copy of decree to the concerned Sub Registrar as per section 31 (2) of

Specific Relief Act, 1963 for making necessary entries in the relevant books with regard to cancellation of above document, in the interest of justice.

Typed to my dictation by the Stenographer Grade-III, corrected and

pronounced by me in the open court this the 27th day of April, 2026.

Sd/- Dr.E.Prasuna,

Civil Judge (Senior Division)

Rayachoty.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR:

Plaintiffs:

PW1: Maddiralla Venkateswarlu.

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PW2: G.Venkataramana.

Defendants:

DW1: P.Doraswamy Naidu.

DW2: Malepati Suresh Naidu.

DW3: Gonguntla Anasuyamma.

DW4: Bijanagiri Viswanatham.

Exhibits marked on behalf of plaintiff:

Ex.A1:Certified copy of sale deed dated 16.09.1998 stands in the name of plaintiff.

Ex.A2:Certified copy of sale agreement dated 15.09.1999, executed by the husband of D2 in favour of the plaintiff.

Ex.A3:Certified copy of sale deed dated 20.03.2017, stands in the name of the 2nd defendant executed by the 1st defendant.

Ex.A4Certified copy of judgment in O.S. No.43/2001 (Hon’ble Principal

Junior Civil Judge, Rayachoty).

Ex.A5Certified copy of decree in A.S. No.18/2006 (Hon’ble Senior

Civil Judge, Rayachoty).

Ex.A6Certified copy of orders passed by the Hon’ble Principal Junior

Civil Judge, Rayachoty in E.P. No.24/2013 in O.S. No.43/2001.

Ex.A7Document No.74/1995 registered gift deed executed by

G.Lakshumamma in favour of his son namely G.Ramesh Naidu who is husband of D2 i.e., PW.1 vendor.

Ex.A8Document No.560/2000 registered sale deed executed by

G.Ramesh Naidu in favour of G.Venugopal Naidu (Eastern and

Southern boundary).

Ex.A9Document No.389/2001 registered sale deed executed by

M.Ramachandraiah Naidu and others in favour of S.Jabiulla and others (Western boundary).

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Exhibits marked on behalf of defendants:

Ex.B1:Certified copy of decree and common judgment dated 14.07.2023 on the file of Hon’ble High Court of Andhra Pradesh.

Sd/- Dr.E.Prasuna,

Civil Judge (Senior Division)

Rayachoty.

1 C.C.No.113/2019

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS:

RAILWAY KODUR

PRESENT:- Smt.E.Prasuna Judl. Magistrate of First Class, Railway Kodur.

Tuesday, this the 30th day of June, 2020

CALENDER CASE No.113/2019

The State of A.P. represented by Sub Inspector of Police,

Railway Kodur PS… Complainant

Vs.

P.Anil Kumar, aged about 30 years,

S/o P.Dharmaiah,

D.No.1/12, S.Upparapalli,

Diguva Harijanawada,

Railway Kodur Mandal.

… Accused

This case is coming on 26-06-2020 for final hearing before me in the presence of learned Assistant Public Prosecutor C.Bhanu Kiranmai on behalf of the State and learned advocate M.Sankaraiah for the Accused through whatsapp video calling due to lockdown in view of COVID-19 as per the orders of Hon’ble High Court in R.O.C.No.192/SO/2020 dt.24.03.2020 to 12.06.2020 and upon hearing on both sides and having stood over for consideration till this day, this court delivered the following:-

JUDGMENT

1. The State represented by Sub-Inspector of Police, Railway Kodur P.S.

filed the charge sheet in Cr.No.584/2018 against the accused for the offence u/sec. 338 IPC and Section 184 of M.V.Act and alleging as follows:

On 05.12.2018 at about 11.25 AM, the accused being the driver of car bearing registration number AP 31 DK 4315, when he reached opposite to

Andhra Bank, Raghavarajupuram village, Railway Kodur mandal, drove the same in rash and negligent manner and lost control over the speed of 2 C.C.No.113/2019 vehicle, he dashed behind the front proceeding Hero HF DLX two wheeler bearing registration number AP 04 BX 0956. As a result, the rider and pillion rider fell down on the ground. Tje rider/defacto complainant of the two wheeler escaped hurt and the pillion rider/Sunkara Jayamma sustained bleeding injury on her nose, fell unconscious. Immediately, the cousin of defacto complainant called abulance shifted her to Padmavathi Super

Speciality Hospital, Tirupathi for treatment. Basing on the report of defacto complainant dated 08.12.2018, the Sub Inspector of Police, Railway Kodur

P.S registered the case in Cr.No.584/2018 under Section 337 IPC and

Section 184 and Sec.134(a)(b) r/w 187 of of M.V.Act. During the course of investigation, on 18.02.2019, the SI of Police arrested the accused, released him on station bail. After completion of investigation, the SI of Police filed charge sheet under Section 338 IPC and Section 184 and Sec.134(a)(b) r/w 187 of of M.V.Act.

2. This Court taken cognizance against the accused under Section 338

IPC and Section 184 and Sec.134(a)(b) r/w 187 of of M.V.Act.

3. On appearance of accused before the court, copies of relevant case records were furnished to him as required U/s.207 Cr.P.C.

4. The accused was examined U/s.251 Cr.P.C. for the offences under

Section 338 IPC and Section 184 and Sec.134(a)(b) r/w 187 of of M.V.Act.

The accusations of the charges were read over and explained to him in

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

5. During the course of trial, the prosecution examined PW1 to PW4 and marked Ex.P1 to Ex.P6 The evidence of LW3, LW4 and LW8 was given up by APP.

6. The accused was examined U/s.313 Cr.P.C. in respect of incriminating material available in the evidence of prosecution, for which the accused pleaded not guilty and reported no evidence on his behalf.

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7. Heard both sides. Perused the record.

T he point that arises for determination is:- "Whether the prosecution is proved the guilt of the accused for the offences under Section 338 IPC and Section 184 and Sec.134(a)(b) r/w 187 of of M.V.Act beyond reasonable doubt?".

Point:- 8. The case of the prosecution is that the accused being the driver of car bearing registration number AP-31-DK-4315, drove the same with rash and negligent manner by lost control over the speed of the vehicle and hitted front proceeding Hero HF DLX motor cycle bearing registration number AP-04-BX-0956, due to which the pillion rider/mother of defacto complainant fell on the earth and sustained bleeding on her nose, fell unconscious.

9. To prove the above case of prosecution, prosecution examined PW1 to PW4 and marked Exs.P1 to P6. PW1 is defacto complainant. PW2 is injured. PW3 is independent witness. PW4 is the Investigating Officer. The description of the Ex.P1 to P6 are mentioned in appendix of the evidence.

10. It is the evidence of PW1, who is defacto complainant deposed that on 05.12.2018 at morning hours, himself and his mother proceeding from Kodur on motor cycle, when they reached Raghavarajupuram at

Andhra Bank, the accused being the driver of car bearing registration number AP 31 DK 4315 came with rash and negligent manner and hitted behind his motor cycle. Due to which, both are fell on the ground and his mother sustained nose injury and head injury. He identified the accused, who standing in the public court is driver of crime vehicle. He informed the incident to PW3. He brought the ambulance and shifted the injured to padmavathi Super speciality Hospital, Tirupathi. On 08.12.2018 at about 10.00 AM, they went to police station and lodged report.

4 C.C.No.113/2019

11. It is the evidence of PW2, who is injured deposed that one day

PW1 and herself proceeding on two wheeler, when they reached

Raghavarajupuram opposite to Andhra Bank, one unknown vehicle came and hitted their motor cycle. Due to which, they fell on the ground and shifted her to Government Hospital, Railway Kodur. She noticed the crime vehicle bearing registration number as AP31 DK 4315. She did not noticed the driver of crime vehicle. The learned APP cross examined her after declared her as hostile to the prosecution case. But nothing is elicited in cross examination of them except identifying Ex.P2 signature.

12. The evidence of PW3, who is said to be independent witness deposed that he came to know the accident through PW1 that they met an accident at opposite to Andhra Bank, Raghavarajupruam and PW2 sustained injuried. Immediately, he brought the ambulance and shifted her to Government Hospital, Railway Kodur. After first aid, doctors referred to shift her to Tirupathi for better treartmnent. he do not know accused and stood hostile to the prosecution case and not supported its case and denied for the suggestions put by the prosecution in the cross examination. It need not to say, mere suggestions to the witness are not evidence and there is no valid. It is well settled law that “suggestive questions cannot be held evidence of fact if denied”.

13. The evidence of PW4/M.Bhaktavatsalam, who is investigating officer deposed that on 08.12.2018 at about 11.00 AM, while he was present in the police station, PW1 came to Police station and preferred report. Basing on the same, he registered the case in Cr.No.584/2018 under

Section 337 IPC and Section 184 and Sec.134(a)(b) r/w 187 of of M.V.Act.

On the very same day, he examined PW1 in the police station itself and recorded his statement. On the very same day, he visited the scene of offence, drawn rough sketch of scene of offence, examined the witnesses 5 C.C.No.113/2019 and recorded their statements. On 27.12.2018, he visited Padmavathi

Super Speciality Hospital, Tiruapthi, examined PW2 and recorded her statement. Later, he handed over the case records to LW8 for further investigation. On 18.02.2019, the accused surrendered before LW8, arrested the accused and released him on station bail. After completion of investigation, after receipt of wound certificate of PW2 LW8 filed charge sheet by altered the section of Law from 337 IPC to 338 IPC along with

Section 184 and Sec.134(a)(b) r/w 187 of of M.V.Act.

14. The learned APP argued that prosecution proved the guilt of the accused for the alleged offence by examination of PW1 to PW4 coupled with

Exs.P1 to P6. Hence, she prayed to convict the accused. On the other hand, the accused argued that there was no incriminating material against the accused available on record and no iota of evidence placed by the prosecution to show that the accused driven the crime vehicle at the time of accident. Hence, he prayed to acquit the accused.

15. But surprisingly in the cross examination PW1 stated that accused was shown by police to him is the driver of crime vehicle. He did not noticed the driver of crime vehicle at the time of accident and he has no prior acquaintance with the accused and he saw the accused first time before this Court.

16. On perusal of the entire evidence of prosecution, PW1 to PW4 categorically deposed about the manner of accident on 05.12.2018. But none of the witness identified the accused before the Court as that of the driver of the crime vehicle and also deposed in their chief examination that due to rash and negligent driving of accused being driver of crime vehicle and caused to accident due to rash and negligent driving and caused injuries to PW2. Since there is no incriminating material against the accused 6 C.C.No.113/2019 as he driven the crime vehicle and caused accident due to rash and negligent driving. Since there is no incriminating evidence against the accused in the evidence of PW1 to PW4. Therefore, the evidence of other witnesses was given up by prosecution. There is no material on record to establish the guilt of the accused for the offences under Section 338 IPC and Section 184 and Sec.134(a)(b) r/w 187 of of M.V.Act. Hence the accused is entitled for acquittal.

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

Section 338 IPC and Section 184 and Sec.134(a)(b) r/w 187 of of M.V.Act and he is acquitted for the same U/Sec.255(1) Cr.P.C. The bail bonds of accused if any shall stands cancelled after lapse of appeal time and unmarked case property if any shall be destroyed after lapse of appeal time.

Typed to my dictation by the Stenographer, corrected and pronounced by me through video conferencing call this the 30th day of June, 2020

Sd/-E.PRASUNA,

JUDL.MAGISTRATE OF FIRST CLASS,

RAILWAY KODUR.

APPENDIX OF EVIDENCE

WITNESS EXAMINED FOR

PROSECUTIONDEFENCE

PW1: S.Manikanta NIL PW2: S.Jayamma PW3: K.Naresh PW4: M.Bhatavatsalam, SI of Police

EXHIBITS MARKED ON BEHALF OF

PROSECUTIONDEFENCE

Ex.P1: Report of PW1 dated 08.12.2018 NIL Ex.P2: 161(3) Cr.P.C. Statement of PW2 Ex.P3: 161(3) Cr.P.C. Statement of PW3 Ex.P4: F.I.R. Ex.P5: Rough Sketch of scene of offence Ex.P6: Wound Certificate of PW2

MATERIAL OBJECTS MARKED

NIL

Sd/-E.PRASUNA,

JUDL.MAGISTRATE OF FIRST CLASS,

RAILWAY KODUR.

\\True Copy\\

Sd/E.PRASUNA,

JUDL.MAGISTRATE OF FIRST CLASS,

RAILWAY KODUR.

1 C.C.No.409/2019

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS :: RLY.KODUR

PRESENT:- Smt.E.Prasuna,

Judl. Magistrate of First Class, Rly. Kodur.

Friday, dated this the 3 rd day of July, 2020

CALENDER CASE No.409/2019

The State of A.P. represented by the Prohibition and

Excise Sub- Inspector, Kodur ...Complainant

Vs.

Bajaru Eswaraiah,

S/o B.Ankaiah, aged about 60 years, resident of Y.Kota (Village),

Obulavaripalli Mandal.

… Accused

This case is coming on 01-07-2020 for final hearing before me in the presence of learned Assistant Public Prosecutor C.Bhanu Kiranmai on behalf of the State and learned advocate K.Suresh for the Accused through whatsapp video calling due to lockdown in view of COVID-19 as per the orders of Hon’ble High Court in R.O.C.No.192/SO/2020 dt.24.03.2020 to 30.06.2020 and upon hearing on both sides and having stood over for consideration till this day, this court delivered the following:-

JUDGMENT

1. The State represented by the Prohibition & Excise Sub Inspector,

Kodur Excise PS filed charge sheet against accused in Cr.No.69/2019 for the offence U/Sec.34(a) of A.P. Excise Act, 1968.

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

On 30.05.2019 at about 10.30 AM, as per the instructions of the

Assistant Commissioner of Prohibition & Excise, Enforcement, Kadapa durigng the General Elections to HoP and APLA, the Inspector of Prohibition & Excise, A.C, Enforcement, Kadapa and and Sub Inspector of Prohibition &

Excise, Kodur and with their staff conducted raids at half furlong away from

APSPDCL Power Station is on Obulavaripalli – Gadela bus road of 2 C.C.No.409/2019

Obulavaripalli Mandal. During the said raid, they found the accused by holding one white plastic bag in his right hand and tried to escape. On suspicion, the excise officials detained him and made enquiry with regard to his name and identity and source of contraband. The accused stated that he was in possession of the liquor bottles to sell the same for profits. Then the Prohibition and Excise Sub Inspector deputed LW2/P.S.Ameerkhan

Bhasha, Proh&Excise Head Constable to secure the mediators from Gadela village, but in vain. Then the Prohibition and Excise Sub-Inspector examined the bag and found 18 Nips of 999 Powerstar Fine whisky, each of 180 ml. The adhesive labels affixed on the corks on the liquor bottles are torned. Then he picked up one bottle from the bag for the purpose of chemical analysis. He also sealed, labeled the sample and the remaining contraband. He arrested the accused and seized the contraband under cover of panchanama drafted on the spot. On return to station, the S.I.of

Proh. & Excise, Kodur registered a case in Cr.No.69/2019, U/Sec.34(a) of A.P.

Excise Act and released the accused on station bail.

During the course of investigation the sample was sent to Chemical examiner through this Court and also submitted proposals for confiscation of the remaining contraband to the Deputy Commissioner of Prohibition &

Excise, Kadapa. On receipt of the chemical analysis report, DC proceedings and after completion of investigation, the Sub Inspector of Prohibition &

Excise filed charge sheet. Hence the charge.

3. This Court taken cognizance against the accused under Section 34(a) of A.P. Excise Act, 1968.

4. On appearance of accused before the court, copies of relevant case records were furnished to him as required U/s.207 Cr.P.C.

5. The accused was examined u/sec.239 Cr.P.C. for the offence under section 34 (a) of A.P. Excise Act. The substance of allegations leveled 3 C.C.No.409/2019 against him and contents of the charges were read over and explained to him in Telugu. For which, he denied the offence pleaded not guilty and claimed to be tried.

6. On behalf of prosecution P.W.1 and PW2 were examined and Ex.P 1 to Ex.P6 and M.O.1. The evidence of L.W.2 was given up by A.P.P.

7. After closure of prosecution evidence the accused was examined u/sec.313 Cr.P.C. by explaining the incriminating material found against him, for which the accused denied and reported that he has no defence evidence on his behalf.

8. Heardboth sides. Perused the record.

Now the Point that arises for determination is: -

Whether the prosecution bring home the guilt of the accused for the offence under section 34(A) of A.P. Excise Act beyond reasonable doubt?

POINT: -

9. The case of the prosecution is that the accused was found in possession of liquor bottles without any license or permission from the concerned authorities when the excise officials conducted raid on 30.05.2019 at half furlong away from APSPDCL Power Station is on

Obulavaripalli – Gadela bus road of Obulavaripalli Mandal. Further it is alleged against the accused that he possessed the liquor bottles with intend to sale for higher prices.

10. In order to prove the prosecution case, the prosecution examined

PW1 and PW2 and marked Ex.P1 to P6 and M.O.1. PW1 and PW2 are excise officials. Ex.P1 is the Special Report. Ex.P2 is the F.I.R. in Cr.No.69/2019.

Ex.P3 is the Letter of Advice. Ex.P4 is the Chemical Analysis Report. Ex.P5 is the attested copy of Deputy Commissioner proceedings. Ex.P6 is the attested copy of mediators report dated 10.12.2019. M.O.1 is sample bottle.

4 C.C.No.409/2019

11. It is the evidence of PW1/S.Jaheer Ahmed, Sub Inspector of

Prohibition Excise that that deposed in chief examination as to the following procedure for picking up the sample, arrest of accused and seizure of contraband under cover of special report, sent the samples and received chemical analysis report as per the averment of the charge sheet. In cross examination of PW.1 it is elicited by the defence counsel that he never tried to secure mediators from surrounded householders and pedestrians and he never drawn rough sketch of scene of offence and admitted that the accused is possessing the permitted quantity and no customers buying the liquor from the accused at the time of arrest.

12. It is the evidence of PW2/E.Mohan Kumar, Sub Inspector of

Prohibition & Excise that, he took up further investigation from PW.1 and He further spoken about the sending of proposals for confiscation of the remaining contraband and receipt of confiscated proceedings from Proh &

Excise deputy commissioner and filing charge sheet against the accused.

Nothing is elicited by the learned counsel for the defence in the cross examination of PW.2..

13. The learned APP argued that prosecution proved the guilt of the accused for the alleged charges by examining PW.1 and PW.2 coupled with

Exs.P.1 to 6 and M.O.1. She further argued that the evidence of PW.1 and

PW.2 is consistent, cogent and reliable. Therefore, she prays to convict the accused according to the law. On the other hand, it is the argument of the learned counsel for the defence that the excise officials violated the mandatory procedure U/Sec.100 (4) of Cr.P.C. even though the scene of offence is busy locality and surrounded by villages. He further argued that

PW.1 and PW.2 are interested witnesses to the prosecution and therefore their evidence cannot be relied upon without independent corroboration.

Hence, he prayed to acquit the accused.

5 C.C.No.409/2019

14. On perusal of the prosecution evidence, PW1 and PW2 are the

Excise officials. It is true that Court cannot reject the evidence of them at the threshold on the mere ground that they are interested witnesses. The prosecution failed to establish the factum of possession of the liquor bottles by the accused for the purpose of sale. None other independent witnesses examined to prove said fact. In the absence of independent corroboration it is highly unsafe to record the conviction basing on the evidence of interested witnesses of prosecution. However, this court has to appreciate the evidence of P.W.1 and P.W.2 with great care and caution, because they have an element of interestedness being Excise officials to get the conviction of the accused.

15. The evidence of PW.2 is also not helpful to the prosecution as he was not participated in the detection of the offence and he only destruction of contraband and filing the charge sheet. His evidence further shows that he never enquired about the source of contraband during his investigation.

In view of the facts and circumstances of the case, the very arrest and seizure of the contraband from the possession of the accused is highly doubtful.

16. There are several infirmities in the case of prosecution. P.W.1 had not taken two independent, local and respectable persons as paunch witnesses, even though the scene of offence is surrounded by villages.

Further P.W.1 evidence is silent about the names of the persons whom they requested to act as mediators. There is no written orders issued to the

Head Constable to secure mediators from the nearby scene of offence. So, the Excise officials violated the mandatory provision laid U/Sec. 100(4)

Cr.P.C without there being any explanation. Further no satisfactory reason forth coming from the evidence of PW.1 for not securing of mediators.

6 C.C.No.409/2019

17. Further the evidence of interested witnesses i.e., P.W1 and PW2 is artificial and routine manner and does not inspire of the confidence of this

Court. Further there are several infirmities in the evidence of P.W.1 and

PW2, to disbelieve their evidence. Hence, the prosecution failed to establish the guilt of accused beyond reasonable doubt for the alleged offence. Point is accordingly answered against the prosecution.

18. In the result, the accused is found not guilty for the offence under section 34(a) of A.P. Excise Act, 1968 and he is acquitted of the same

U/sec.248(1) Cr.P.C. The bail bonds of the accused shall cancelled after lapse of appeal time. M.O.1 sample bottle and unmarked case property if any shall be destroyed after lapse of appeal time.

Typed to my dictation by the Stenographer, corrected and

pronounced by me through the videoconferencing call, this the 3rd day of

July, 2020.

Sd/-E.PRASUNA,

JUDL.MAGISTRATE OF FIRST CLASS,

RAILWAY KODUR.

APPENDIX OF EVIDENCE

WITNESS EXAMINED FOR

PROSECUTION DEFENCE

PW1: S.Jaheer Ahmed, SI of Proh&Excise, KodurNIL PW2: E.Mohan Kumar, SI of Proh&Excise, Kodur

EXHIBITS MARKED ON BEHALF OF

PROSECUTION DEFENCE

Ex.P1: Special Report NIL Ex.P2: F.I.R in Cr.No.69/2019 Ex.P3: Letter of Advice Ex.P4: Chemical Analysis Report Ex.P5: Attested copy of Deputy Commissioner proceedings Ex.P6: Attested copy of Mediators report dated 10.12.2019

MATERIAL OBJECTS MARKED

M.O.1 : Sample bottle

Sd/-E.PRASUNA,

JUDL.MAGISTRATE OF FIRST CLASS,

RAILWAY KODUR.

\\True Copy\\

Sd/E.PRASUNA,

JUDL.MAGISTRATE OF FIRST CLASS,

RAILWAY KODUR.

1 C.C.No.408/2019

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS :: RLY.KODUR

PRESENT:- Smt.E.Prasuna,

Judl. Magistrate of First Class, Rly. Kodur.

Tuesday, dated this the 14 th day of July, 2020

CALENDER CASE No.408/2019

The State of A.P. represented by the Prohibition and

Excise Sub- Inspector, Kodur ...Complainant

Vs.

K.Karthik,

S/o K.Ramaiah, aged about 22 years, resident of Papireddypalli Village,

Obulavaripalli Mandal.

… Accused

This case is coming on 13-07-2020 for final hearing before me in the presence of learned Assistant Public Prosecutor C.Bhanu Kiranmai on behalf of the State and learned advocate K.Suresh for the Accused through whatsapp video calling due to lockdown in view of COVID-19 as per the orders of Hon’ble High Court in R.O.C.No.192/SO/2020 dt.24.03.2020 to 30.06.2020 and upon hearing on both sides and having stood over for consideration till this day, this court delivered the following:-

JUDGMENT

1. The State represented by the Prohibition & Excise Sub Inspector,

Kodur Excise PS filed charge sheet against accused in Cr.No.68/2019 for the offence U/Sec.34(a) of A.P. Excise Act, 1968.

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

On 24.05.2019 at about 5.00 PM, as per the instructions of the

Inspector of Prohibition & Excise, Kodur, the Sub Inspector of Prohibition &

Excise, Kodur and with his staff conducted raids at Mukkavaripalli cross road is on Kodur – Rajampet bus road of Kodur Mandal. During the said raid, they found the accused by holding one white plastic bag in his right hand and tried to escape. On suspicion, the excise officials detained him and 2 C.C.No.408/2019 made enquiry with regard to his name and identity and source of contraband. The accused stated that he was in possession of the liquor bottles to sell the same for profits. Then the Prohibition and Excise Sub

Inspector deputed LW2/P.S.Ameerkhan Bhasha, Proh&Excise Head

Constable to secure the mediators from Mukkavaripalli village, but in vain.

Then the Prohibition and Excise Sub-Inspector examined the bag and found 09 Nips of 999 Powerstar Fine whisky, each of 180 ml. The adhesive labels affixed on the corks on the liquor bottles are torned. Then he picked up one bottle from the bag for the purpose of chemical analysis. He also sealed, labeled the sample and the remaining contraband. He arrested the accused and seized the contraband under cover of panchanama drafted on the spot. On return to station, the S.I.of Proh. & Excise, Kodur registered a case in Cr.No.68/2019, U/Sec.34(a) of A.P. Excise Act and released the accused on station bail.

During the course of investigation the sample was sent to Chemical examiner through this Court and also submitted proposals for confiscation of the remaining contraband to the Deputy Commissioner of Prohibition &

Excise, Kadapa. On receipt of the chemical analysis report, DC proceedings and after completion of investigation, the Sub Inspector of Prohibition &

Excise filed charge sheet. Hence the charge.

3. This Court taken cognizance against the accused under Section 34(a) of A.P. Excise Act, 1968.

4. On appearance of accused before the court, copies of relevant case records were furnished to him as required U/s.207 Cr.P.C.

5. The accused was examined u/sec.239 Cr.P.C. for the offence under section 34 (a) of A.P. Excise Act. The substance of allegations leveled against him and contents of the charges were read over and explained to him in Telugu. For which, he denied the offence pleaded not guilty and 3 C.C.No.408/2019 claimed to be tried.

6. On behalf of prosecution P.W.1 and PW2 were examined and Ex.P 1 to Ex.P6 and M.O.1. The evidence of L.W.2 was given up by A.P.P.

7. After closure of prosecution evidence the accused was examined u/sec.313 Cr.P.C. by explaining the incriminating material found against him, for which the accused denied and reported that he has no defence evidence on his behalf.

8. Heardboth sides. Perused the record.

Now the Point that arises for determination is: -

Whether the prosecution bring home the guilt of the accused for the offence under section 34(A) of A.P. Excise Act beyond reasonable doubt?

POINT: -

9. The case of the prosecution is that the accused was found in possession of liquor bottles without any license or permission from the concerned authorities when the excise officials conducted raid on 24.05.2019 at Mukkavaripalli cross road is on Kodur – Rajampet bus road of

Kodur Mandal. Further it is alleged against the accused that he possessed the liquor bottles with intend to sale for higher prices.

10. In order to prove the prosecution case, the prosecution examined

PW1 and PW2 and marked Ex.P1 to P6 and M.O.1. PW1 and PW2 are excise officials. Ex.P1 is the Special Report. Ex.P2 is the F.I.R. in Cr.No.68/2019.

Ex.P3 is the Letter of Advice. Ex.P4 is the Chemical Analysis Report. Ex.P5 is the attested copy of Deputy Commissioner proceedings. Ex.P6 is the attested copy of mediators report dated 10.12.2019. M.O.1 is sample bottle.

11. It is the evidence of PW1/B.Sudhakar, Sub Inspector of Prohibition

Excise that that deposed in chief examination as to the following procedure for picking up the sample, arrest of accused and seizure of contraband 4 C.C.No.408/2019 under cover of special report, sent the samples and received chemical analysis report as per the averment of the charge sheet. In cross examination of PW.1 it is elicited by the defence counsel that he never tried to secure mediators from surrounded householders and pedestrians and he never drawn rough sketch of scene of offence and admitted that the accused is possessing the permitted quantity and no customers buying the liquor from the accused at the time of arrest.

12. It is the evidence of PW2/E.Mohan Kumar, Sub Inspector of

Prohibition & Excise that, he took up further investigation from PW.1 and He further spoken about the sending of proposals for confiscation of the remaining contraband and receipt of confiscated proceedings from Proh &

Excise deputy commissioner and filing charge sheet against the accused.

Nothing is elicited by the learned counsel for the defence in the cross examination of PW.2..

13. The learned APP argued that prosecution proved the guilt of the accused for the alleged charges by examining PW.1 and PW.2 coupled with

Exs.P.1 to 6 and M.O.1. She further argued that the evidence of PW.1 and

PW.2 is consistent, cogent and reliable. Therefore, she prays to convict the accused according to the law. On the other hand, it is the argument of the learned counsel for the defence that the excise officials violated the mandatory procedure U/Sec.100 (4) of Cr.P.C. even though the scene of offence is busy locality and surrounded by villages. He further argued that

PW.1 and PW.2 are interested witnesses to the prosecution and therefore their evidence cannot be relied upon without independent corroboration.

Hence, he prayed to acquit the accused.

14. On perusal of the prosecution evidence, PW1 and PW2 are the

Excise officials. It is true that Court cannot reject the evidence of them at the threshold on the mere ground that they are interested witnesses. The 5 C.C.No.408/2019 prosecution failed to establish the factum of possession of the liquor bottles by the accused for the purpose of sale. None other independent witnesses examined to prove said fact. In the absence of independent corroboration it is highly unsafe to record the conviction basing on the evidence of interested witnesses of prosecution. However, this court has to appreciate the evidence of P.W.1 and P.W.2 with great care and caution, because they have an element of interestedness being Excise officials to get the conviction of the accused.

15. The evidence of PW.2 is also not helpful to the prosecution as he was not participated in the detection of the offence and he only destruction of contraband and filing the charge sheet. His evidence further shows that he never enquired about the source of contraband during his investigation.

In view of the facts and circumstances of the case, the very arrest and seizure of the contraband from the possession of the accused is highly doubtful.

16. There are several infirmities in the case of prosecution. P.W.1 had not taken two independent, local and respectable persons as paunch witnesses, even though the scene of offence is surrounded by villages.

Further P.W.1 evidence is silent about the names of the persons whom they requested to act as mediators. There is no written orders issued to the

Head Constable to secure mediators from the nearby scene of offence. So, the Excise officials violated the mandatory provision laid U/Sec. 100(4)

Cr.P.C without there being any explanation. Further no satisfactory reason forth coming from the evidence of PW.1 for not securing of mediators.

17. Further the evidence of interested witnesses i.e., P.W1 and PW2 is artificial and routine manner and does not inspire of the confidence of this

Court. Further there are several infirmities in the evidence of P.W.1 and 6 C.C.No.408/2019

PW2, to disbelieve their evidence. Hence, the prosecution failed to establish the guilt of accused beyond reasonable doubt for the alleged offence. Point is accordingly answered against the prosecution.

18. In the result, the accused is found not guilty for the offence under section 34(a) of A.P. Excise Act, 1968 and he is acquitted of the same

U/sec.248(1) Cr.P.C. The bail bonds of the accused shall cancelled after lapse of appeal time. M.O.1 sample bottle and unmarked case property if any shall be destroyed after lapse of appeal time.

Typed to my dictation by the Stenographer, corrected and

pronounced by me through the videoconferencing call, this the 14th day of

July, 2020.

Sd/-E.PRASUNA,

JUDL.MAGISTRATE OF FIRST CLASS,

RAILWAY KODUR.

APPENDIX OF EVIDENCE

WITNESS EXAMINED FOR

PROSECUTION DEFENCE

PW1: B.Sudhakar, SI of Proh&Excise, KodurNIL PW2: E.Mohan Kumar, SI of Proh&Excise, Kodur

EXHIBITS MARKED ON BEHALF OF

PROSECUTION DEFENCE

Ex.P1: Special Report NIL Ex.P2: F.I.R in Cr.No.68/2019 Ex.P3: Letter of Advice Ex.P4: Chemical Analysis Report Ex.P5: Attested copy of Deputy Commissioner proceedings Ex.P6: Attested copy of Mediators report dated 10.12.2019

MATERIAL OBJECTS MARKED

M.O.1 : Sample bottle

Sd/-E.PRASUNA,

JUDL.MAGISTRATE OF FIRST CLASS,

RAILWAY KODUR.

\\True Copy\\

Sd/E.PRASUNA,

JUDL.MAGISTRATE OF FIRST CLASS,

RAILWAY KODUR.

1 C.C.No.05/2020

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS :: RLY.KODUR

PRESENT:- Smt.E.Prasuna,

Judl. Magistrate of First Class, Rly. Kodur.

Friday, dated this the 10 th day of July, 2020

CALENDER CASE No.05/2020

The State of A.P. represented by the Prohibition and

Excise Sub- Inspector, Kodur ...Complainant

Vs.

Balu Nageswara,

S/o Narasimhulu, aged about 45 years, resident of Pagadalapalli (Village),

Kodur town and Mandal.

… Accused

This case is coming on 07-07-2020 for final hearing before me in the presence of learned Assistant Public Prosecutor C.Bhanu Kiranmai on behalf of the State and learned advocate M.S.Sankar Reddy for the Accused through whatsapp video calling due to lockdown in view of COVID-19 as per the orders of Hon’ble High Court in R.O.C.No.192/SO/2020 dt.24.03.2020 to 01.07.2020 and upon hearing on both sides and having stood over for consideration till this day, this court delivered the following:-

JUDGMENT

1. The State represented by the Prohibition & Excise Sub Inspector,

Kodur Excise PS filed charge sheet against accused in Cr.No.40/2019 for the offence U/Sec.34(a) of A.P. Excise Act, 1968.

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

On 15.03.2019 at about 5.30 PM, as per the instructions of the

Director of Enforcementg, Vijayawada, the Inspector of Prohibition &

Excise,STF Team-4, Vijayawada and Sub Inspector of Prohibition & Excise,

Kodur and with their staff conducted joint raids at newly constructing

Musteru river bridge is on Kodur – Chitvel bus road of Kodur Mandal. During the said raid, they found the accused by holding one white plastic bag in his right hand and tried to escape. On suspicion, the excise officials detained 2 C.C.No.05/2020 him and made enquiry with regard to his name and identity and source of contraband. The accused stated that he was in possession of the liquor bottles to sell the same for profits. Then the Prohibition and Excise Sub

Inspector, Kodur tried to secure the mediators in and around of scene of offence, but in vain. Then the Prohibition and Excise Sub-Inspector examined the bag and found 11 Nips of 999 Powerstar Fine whisky, each of 180 ml. The adhesive labels affixed on the corks on the liquor bottles are torned. Then he picked up one bottle from the bag for the purpose of chemical analysis. He also sealed, labeled the sample and the remaining contraband. He arrested the accused and seized the contraband under cover of panchanama drafted on the spot. On return to station, the S.I.of

Proh. & Excise, Kodur registered a case in Cr.No.40/2019, U/Sec.34(a) of A.P.

Excise Act and released the accused on station bail.

During the course of investigation the sample was sent to Chemical examiner through this Court and also submitted proposals for confiscation of the remaining contraband to the Deputy Commissioner of Prohibition &

Excise, Kadapa. On receipt of the chemical analysis report, DC proceedings and after completion of investigation, the Sub Inspector of Prohibition &

Excise filed charge sheet. Hence the charge.

3. This Court taken cognizance against the accused under Section 34(a) of A.P. Excise Act, 1968.

4. On appearance of accused before the court, copies of relevant case records were furnished to him as required U/s.207 Cr.P.C.

5. The accused was examined u/sec.239 Cr.P.C. for the offence under section 34 (a) of A.P. Excise Act. The substance of allegations leveled against him and contents of the charges were read over and explained to him in Telugu. For which, he denied the offence pleaded not guilty and claimed to be tried.

3 C.C.No.05/2020

6. On behalf of prosecution P.W.1 and PW2 were examined and Ex.P 1 to Ex.P6 and M.O.1. The evidence of L.W.2 was given up by A.P.P.

7. After closure of prosecution evidence the accused was examined u/sec.313 Cr.P.C. by explaining the incriminating material found against him, for which the accused denied and reported that he has no defence evidence on his behalf.

8. Heardboth sides. Perused the record.

Now the Point that arises for determination is: -

Whether the prosecution bring home the guilt of the accused for the offence under section 34(A) of A.P. Excise Act beyond reasonable doubt?

POINT: -

9. The case of the prosecution is that the accused was found in possession of liquor bottles without any license or permission from the concerned authorities when the excise officials conducted raid on 15.03.2019 at newly constructing Musteru river bridge is on Kodur – Chitvel bus road of Kodur Mandal. Further it is alleged against the accused that he possessed the liquor bottles with intend to sale for higher prices.

10. In order to prove the prosecution case, the prosecution examined

PW1 and PW2 and marked Ex.P1 to P6 and M.O.1. PW1 and PW2 are excise officials. Ex.P1 is the Special Report. Ex.P2 is the F.I.R. in Cr.No.40/2019.

Ex.P3 is the Letter of Advice. Ex.P4 is the Chemical Analysis Report. Ex.P5 is the attested copy of Deputy Commissioner proceedings. Ex.P6 is the attested copy of mediators report dated 18.06.2019. M.O.1 is sample bottle.

11. It is the evidence of PW1/S.Jaheer Ahmed, Sub Inspector of

Prohibition Excise that that deposed in chief examination as to the following procedure for picking up the sample, arrest of accused and seizure of contraband under cover of special report, sent the samples and received 4 C.C.No.05/2020 chemical analysis report as per the averment of the charge sheet and he further spoken about the sending of proposals for confiscation of the remaining contraband and receipt of confiscated proceedings from Proh &

Excise deputy commissioner In cross examination of PW.1 it is elicited by the defence counsel that he never tried to secure mediators from surrounded householders and pedestrians and he never drawn rough sketch of scene of offence and admitted that the accused is possessing the permitted quantity and no customers buying the liquor from the accused at the time of arrest.

12. It is the evidence of PW2/S.Mohiddin Basha, Sub Inspector of

Prohibition & Excise that, he took up further investigation from PW.1 and he only filing charge sheet against the accused. Nothing is elicited by the learned counsel for the defence in the cross examination of PW.2 ..

13. The learned APP argued that prosecution proved the guilt of the accused for the alleged charges by examining PW.1 and PW.2 coupled with

Exs.P.1 to 6 and M.O.1. She further argued that the evidence of PW.1 and

PW.2 is consistent, cogent and reliable. Therefore, she prays to convict the accused according to the law. On the other hand, it is the argument of the learned counsel for the defence that the excise officials violated the mandatory procedure U/Sec.100 (4) of Cr.P.C. even though the scene of offence is busy locality and surrounded by villages. He further argued that

PW.1 and PW.2 are interested witnesses to the prosecution and therefore their evidence cannot be relied upon without independent corroboration.

Hence, he prayed to acquit the accused.

14. On perusal of the prosecution evidence, PW1 and PW2 are the

Excise officials. It is true that Court cannot reject the evidence of them at the threshold on the mere ground that they are interested witnesses. The prosecution failed to establish the factum of possession of the liquor bottles 5 C.C.No.05/2020 by the accused for the purpose of sale. None other independent witnesses examined to prove said fact. In the absence of independent corroboration it is highly unsafe to record the conviction basing on the evidence of interested witnesses of prosecution. However, this court has to appreciate the evidence of P.W.1 and P.W.2 with great care and caution, because they have an element of interestedness being Excise officials to get the conviction of the accused.

15. The evidence of PW.2 is also not helpful to the prosecution as he was not participated in the detection of the offence and he only filing the charge sheet. His evidence further shows that he never enquired about the source of contraband during his investigation. In view of the facts and circumstances of the case, the very arrest and seizure of the contraband from the possession of the accused is highly doubtful.

16. There are several infirmities in the case of prosecution. P.W.1 had not taken two independent, local and respectable persons as paunch witnesses, even though the scene of offence is surrounded by villages.

Further P.W.1 evidence is silent about the names of the persons whom they requested to act as mediators. So, the Excise officials violated the mandatory provision laid U/Sec. 100(4) Cr.P.C without there being any explanation. Further no satisfactory reason forth coming from the evidence of PW.1 for not securing of mediators.

17. Further the evidence of interested witnesses i.e., P.W1 and PW2 is artificial and routine manner and does not inspire of the confidence of this

Court. Further there are several infirmities in the evidence of P.W.1 and

PW2, to disbelieve their evidence. Hence, the prosecution failed to establish the guilt of accused beyond reasonable doubt for the alleged offence. Point is accordingly answered against the prosecution.

6 C.C.No.05/2020

18. In the result, the accused is found not guilty for the offence under section 34(a) of A.P. Excise Act, 1968 and he is acquitted of the same

U/sec.248(1) Cr.P.C. The bail bonds of the accused shall cancelled after lapse of appeal time. M.O.1 sample bottle and unmarked case property if any shall be destroyed after lapse of appeal time.

Typed to my dictation by the Stenographer, corrected and

pronounced by me through the videoconferencing call, this the 10th day of

July, 2020.

Sd/-E.PRASUNA,

JUDL.MAGISTRATE OF FIRST CLASS,

RAILWAY KODUR.

APPENDIX OF EVIDENCE

WITNESS EXAMINED FOR

PROSECUTION DEFENCE

PW1: S.Jaheer Ahmed, SI of Proh&Excise, KodurNIL PW2: S.Mohiddin Basha, SI of Proh&Excise, Kodur

EXHIBITS MARKED ON BEHALF OF

PROSECUTION DEFENCE

Ex.P1: Special Report NIL Ex.P2: F.I.R in Cr.No.40/2019 Ex.P3: Letter of Advice Ex.P4: Chemical Analysis Report Ex.P5: Attested copy of Deputy Commissioner proceedings Ex.P6: Attested copy of Mediators report dated 18.06.2019

MATERIAL OBJECTS MARKED

M.O.1 : Sample bottle

Sd/-E.PRASUNA,

JUDL.MAGISTRATE OF FIRST CLASS,

RAILWAY KODUR.

\\True Copy\\

Sd/E.PRASUNA,

JUDL.MAGISTRATE OF FIRST CLASS,

RAILWAY KODUR.