Sri. G.S Ramesh Kumar

1

BEFORE THE CHAIRMAN, MOTOR ACCIDENTS CLAIMS’ TRIBUNAL

-CUM-II ADDITIONAL DISTRICT JUDGE, KADAPA at PRODDATUR.

Present: Sri G.S.Ramesh Kumar,

Chairman, Motor Accidents Claims Tribunal-cum- II Additional District

Judge, Kadapa at Proddatur.

Saturday this the 26 th day of October, 2024.

M.V.O.P. No.170 of 2018.

1. Gopireddy Devamma W/O G.Venkateswara Reddy, 46 yeas, Hindu, housewife,

2. Gopireddy Raghava Reddy, S/O G.Venkateswara Reddy, 24 years, Hindu, en-employee, both are residents of D.No.11/53, new buildings, Chagalamarri village and mandal, Kurnool District.

…Claimants…

Vs.

1. R.Chandrakala W/O B.J.Ramanna, aged not known, bu major, Hindu, car owner, resident of D.No,.1, 11th cross, Cubbonpet, Bangalore city, Karnataka State.

2. United India Insurance Company Limited, represented by its Brach Manager, Cubbonpet, Bangalore city, Karnataka State.

3. Pydikalva Chinna Venkata Subbaiah S/O P.Raju, 26 yeas, Hindu, car driver, resident of D.No.9/504, Gandhinagar, Khadarbad village, Proddatur mandal, Kadapa District.

… Respondents....

This petition coming on 08.10.2024, before me for final hearing in the presence of Sri.S.Noorulla, advocate for the claimants and

Sri.P.S.Ranga Reddy, advocate for respondent No.2 and the respondents 1 and 3 remained exparte, and on hearing on both sides, having perused the material available on record and having stood over for consideration till this day, this court made the following :-

O R D E R

This claim petition is filed by the claimants U/Sec.166 of Motor

Vehicle Act 1998 and Rule 475/476 of M.V.Rules, 1988, claiming 2 compensation of Rs.80,00,000/- (Rupees eighty lakhs only) against the respondents 1 to 3 jointly and severally for the death of Gopireddy

Venkateswara Reddy, in a motor vehicle accident, together with interest and for costs of the petition.

2.Brief reference of facts lead to file this original petition are that: On 14.07.2017 the deceased G.Venkateswara Reddy and his wife went to

Raupalm village on his motorcycle bearing No.AP21.H.8403. After attending the death ceremony function of the mother of the deceased, both left

Rajupalem village to go to Chagalamarri village and reached near Kulluru rastha of Chagalamarri at about 4.30 pm., while the deceased was crossing the road with high motorcycle, the accused Pydikalva Chinna Venkata Subbaiah being the driver of the car bearing No.KA.01.MH.6030 drove the car in a rash and negligent manner with high speed and hit the motorcycle. As a result the deceased and his wife fell down. The deceased received bleeding injuries on his both hands, stomach, chest and other parts of the body and his left leg was fractured. A case was registered, investigated into the case and filed charge sheet. Immediately after the accident the husband of the first claimant became unconscious and he was shifted to Christian fellowship hospital, Chagalamarri,

Kurnool District and as the condition was serious, he was referred to Gouri

Gopal Hospital, Kurnool and was inpatient for one day in the hospital. As per the advice of the doctors, he was admitted in Krishna Institute of Medical

Sciences Limited, Multi Super specialty Hospital, Secunderabad, underwent surgery for three times and was in intensive care unto for twenty seven days and thus he was inpatient in the hospital for two months. While treatment was 3 going on in KIMS, Secunderabad, he died in the hospital on 09.09.2017 due to the injuries cased in the accident.

3. The 1st respondent is the owner of the crime vehicle, 3rd respondent is the driver of the crime vehicle and the 1st respondent insured his crime vehicle with respondent No.2 and the policy was in force as on the date of accident. Hence, all the respondents are jointly and severally liable to pay compensation to the claimant. Hence, the petition.

4. Respondent Nos.1 and 3 remained exparte.

5. Respondent No.2 filed written statement by denying the allegations made in the claim petition and further contended that the driver of the crime vehicle had no valid and effective driving licence at the time of accident to drove the crime vehicle. He further contended that, the petition is bad for non joiner of proper and necessary parties. The driver of the crime vehicle shall invariably hold transport L.M.V. category of license and as the respondent No.3 does not hold the required license, this respondent is not indemnify the 1st respondent. The compensation claimed by the claimants under various head are very excessive. Hence, prayed to dismiss the petition.

6. Based on the above pleadings, the following issues have been settled for trial:

1. Whether the accident occurred on 14.07.2017 while the deceased by name G.Venkateswara Reddy along with his wife i.e., 1st claimant returning to their Chagalamarri village from Rajupalem on their motorcycle bearing No.AP21.H.8403 after attending death ceremony function of the mother of the deceased G,.Venkateswara Reddy and when they are crossing the road near Kulluru rastha of Chagalamarri village at about 4.30 pm., at which time the 3rd respondent being driver of the 1st respondent’s car bearing No.KA01.MH.6030 came in a rash and negligent driving with high speed and hit the motorcycle of the deceased due to which he and his wife fell down and as a result of which the deceased being husband of the 1st claimant and father of the 2nd claimant sustained bleeding injuries on his both hands, stomach, 4 chest and other parts of the body including fracture of his left leg causing the death to the deceased G.Venkateswara Reddy or not?

2. Whether the claim petition is bad for non joinder of owner and insurer of the motorcycle bearing No.AP21.H.8403 over which the 1st claimant and her deceased husband by name G.Venkateswara Reddy coming to their village or not?

3. Whether the claimants are entitled to any compensation or not?

4. To what relief?

7.On behalf of claimants, P.Ws.1 and 2 were examined and got marked Exs.A.1 to A.49. On behalf of the 2nd respondent, R.W.1 was examined and got marked Ex.B.1 policy copy.

8. Heard the learned counsel for both parties.

9. Issues 1 to 3: The 1st claimant is the wife of the deceased and adduced evidence herself as P.W.1 and the second claimant is their son.

According to her on 14.07.2017 at about 4.30 pm., while the deceased riding the motorcycle and she is the pillion rider when reached near Kalluru rastha of

Chagalamarri, R.3 drove the crime vehicle in a rash and negligent manner and hit the motorcycle of the deceased, resulted with the deceased received bleeding injuries and also fractures. She gave complaint to the police, the police investigated the case and filed charge sheet. She also deposed thst the deceased shifted to Christian Fellowship Hospital, Chagalamarri, and after first aid referred to Gouri Gopal Hospital, Kurnool. Thereafter shifted to Krishna

Institute of Medical Sciences of Multi super specialty hospital, Secunderabad and treated there as inpatient for a period of 2 months. The deceased also treated in Suvitgs Holistic Healthcare private hospital, Hyderabad for one week. Thereafter, the deceased died on 09.09.2017 in the hospital i.e., Krishna

Institute of Medical Sciences, Secunderabad. She also filed Exs.A.1 to A.49 5 i.e., Ex.A1: Certified Copy of F.I.R in Cr.No.71/2017 of Chagalamarri P.S

Ex.A2: Certified Copy of Inquest report, Ex.A3: Certified Copy of Post- mortem report, Ex.A4: Certified Copy of M.V.I report, Ex.A5: Certified Copy of Charge sheet in Crime No.71/2017 of Chagalamarri P.S, Ex.A6:

Prescriptions (6 in No’s) issued by Gowri Gopal intensive care Unit, Kurnool,

Ex.A7: Discharge Summary dt.15-07-2017 issued by Gowri Gopal

Hospital, Kurnool, Ex.A8: Discharge Summary dt.08-08-2017 issued by

KIMS, Secunderabad, Ex.A9: Prescription dt.08-08-2017 issued by KIMS

Hospital, Secunderabad, Ex.A10: Letter issued by Suvitas Post Hospitalization rehabilitation dt.13-08-2017, Ex.A11: Discharge Summary dt.02-09-2017 issued by KIMS, Secunderabad, Ex.A12: Death Summary of G.Venkateswara

Reddy dt.09-09-2017 issued by KIMS, Secunderabad, Ex.A13: I.P. Final Bill dt.15-07-2017 issued by Gowri Gopal Hospital Pvt. Ltd, Kurnool for

Rs.28,610/-, Ex.A14: Bill for Rs.6,000/- dt.14-07-2017 issued by

AbhayAmbulance Services, Chagalamarri, Ex.A15: Bill for Rs.26,000/- dt.15- 07-2017 issued by KCC Ambulance Services, Kurnool, Ex.A16: I.P. Final Bill dt.08-08-2017 issued by KIMS,Secunderabad for Rs.9,90,000/-, Ex.A17:

Pharmacy receipts (5 in No’s) dt.08-08-2017 for Rs.4,095/- issued by KIMS,

Secunderabad, Ex.A18: I.P. Final Bill dt.04-09-2017 issued by KIMS,

Secunderabad for Rs.3,57,231/-, Ex.A19: I.P. Final Bill dt.09-09-2017 issued by KIMS, Secunderabad for Rs.50,171/-, Ex.A20: Pharmacy receipt (water bed) dt.25-08-2017 for Rs.3,500/- issued by KIMS Hospital, Secunderabad,

Ex.A21: Ambulance Charges receipt dt.10-09-2017 issued by Dr.S.N.Prasad,

Prasad Nursing Home for Rs.25,000/-, Chagalamarri, { Subject to objection for proof and relevancy}, Ex.A22: Detailed Pay slips of deceased G.Venkateswara 6

Reddy for the month of June-No Internet2016 to June 2017 (13 in No’s ) issued by M.E.O, Chagalamarri, Ex.A23: Reg.Sale deed dt.07-03-2009 vide document No.415/2009 executed in favour of deceased G.Venkateswara

Reddy, Ex.A24: House Tax receipt dt.27-11-2019 issued by Panchayat

Secretary, Chagalamarri for the House D.No.11-12/A in favour of

G.Venkateswara Reddy (deceased), Ex.A25: Water Tax Receipt dt.17-11-2019 issued by Panchayat Secretary, Chagalamarri in favour of G.Venkateswara

Reddy (deceased), Ex.A26: Title deed (Original) issued by The Tahsildar,

Chagalamarri in favour of G.Venkateswara Reddy (deceased) bearing No.640,

Ex.A27: Title deed (Original) issued by The Tahsildar, Chagalamarri in favour of G.Venkateswara Reddy (deceased) bearing No.427, Ex.A28: Attendant Cot bill issued by KIMS, Secunderabad for Rs.200/- dt.17-7-2017, Ex.A29:

Attendant Cot bill issued by KIMS, Secunderabad for Rs.250/- (2 in No’s) dt.18-7-2017, Ex.A30: Attendant Cot bill dt.19-7-2017 issued by KIMS,

Secunderabad for Rs.200/-, Ex.A31: Attendant Cot bill dt.20-7-2017 issued by

KIMS, Secunderabad for Rs.200/-, Ex.A32: Attendant Cot bill dt.21-7-2017 issued by KIMS, Secunderabad for Rs.100/-, Ex.A33: Attendant Cot bill dt.22-7-2017 issued by KIMS, Secunderabad for Rs.200/-, Ex.A34: Attendant

Cot bill dt.23-7-2017 issued by KIMS, Secunderabad for Rs.200/-, Ex.A35:

Invoice receipts (4 in No’s) issued by Sri Sri Nizams Medicals,Hyderabad for

Rs.7,918/-, Ex.A36: O.P bill cum receipt issued by KIMS, Secunderabad dt.13- 08-2017 for Rs.3,355/-, Ex.A37: Attendant Cot bill for Rs.100/- issued by

KIMS, Secunderabad dt.14-08-2017, Ex.A38: Reference letter dated:14-07- 2017 issued by the Christian fellowship Hospital, Chagalamarri, { Subject to objection as the document has not contain seal and also signature of the doctor 7 is not authentic}, Ex.A39: Bills by Gowri Gopal Hospital and Christian fellowship Hospital for Rs.100/- and Rs.500/- dt.14-7-2017, Ex.A40: Suvitas

Holistic Pvt.Ltd receipt dt.09-08-2017 for Rs.35,000/, Ex.A41: Bill issued by

Suvitas Holistic Health care Ltd receipt dt.09-08-2017 for Rs.1033-50/-,{Ex.40 & 41 are marked to Subject to objection as they are not contained seal & signatures}, Ex.A42: Bill issued by Sri Sai Baba medical and general stores dt.09-08-2017 for Rs.487/-, Ex.A43: Bill issued by Sri Sai Baba medical and general stores dt.10-08-2017 for Rs.870/-, Ex.A44: GST Invoice issued by

Medicare Galaxy LLP dt.10-08-2017 for Rs.1278/-, Ex.A45: Bill issued by Sri

Sai Baba medical and general stores dt.11-08-2017 for Rs.470/-, Ex.A46: GST

Invoice issued by Medicare Galaxy LLP dt.12-08-2017 for Rs.4606/-, Ex.A47:

permanent account number (Pan card) of G.Venkateswara Reddy

No.ANVPG2586K, Ex.A48: Form No.16 for the year 2014-2015 pertaining to

G.Venkateswara Reddy, Ex.A49: Bills and certificate, receipt issued by

GITAM UNIVERSITY in the name of G.Raghava Reddy dated: 19-06-2017, 19-06-2017, 19-06-2017, 19-06-2017, 13-07-2017 and 14-10-2017 {6 in

No’s}. However, she was suggested that Exs.A.14, A.15 and A.21 are created for getting more compensation. The Ex.A.24, A.25 and 49 are noway related to the claim petition. The Ex.A.3 postmortem report shows that the death id due to chronic liver disease as well as due to accident.

10. the contesting second respondent though contended that the owner and insurer of the motorcycle are necessary parties, the deceased died not only due to the head injury but also liver disease. The R.3 drove the crime vehicle at the time of accident, has only L.M.V. driving licence, as such, the second respondent is not liable to indemnify the liability of R.1 and R.3 etc.

8

The second respondent also adduced the evidence of R.W.1 and reiterated the above said contentions in his evidence but admitted in cross examination that the crime vehicle of R.1 is a private car but not goods vehicle and there is no need to have transport driving licence to drive the above said private car. The police filed charge sheet against R.3 driver etc. Accordingly, the L.M.V.

driving licence is enough to drove the crime vehicle. As such, it cannot be said that the R.3 has no valid driving licence to drive the crime vehicle at the time of accident.

11. Whereas the evidence of P.W.1 not only supported by Exs.A.1 to A.5 in respect of accident and receipt of injuries, but also supported by

Ex.A.6 to Exs.A.41 regarding with the treatment of the deceased in various hospitals, out of them, the Ex.A.13 is the final medical bill issued in Gouri

Gopal Hospital for Rs.28,610/- , Ex.A.14 bill issued by the ambulance service for Rs.6,000/- and Ex.A.16 is the final bill issued by KIMS hospital for

Rs.9,90,000/-, Ex.A.21 is the receipt issued by ambulance services for

RS.25,000/-. The Ex.A.40 is the receipt issued by Suvitas Holistic Healthcare

Private Limited, Hyderabad for Rs.35,000/- and Ex.A.41 is also issued by the same hospital, but they are marked subject to objection as they have no seal and signatures of the concerned, similarly Exs.A.42 to Exs.A.46 and Ex.A.49.

However, the final bill under Ex.A.13 for Rs.28,610/- issued by Gouri Gopal

Hospital and the ambulance receipts under Exs.A.14 and Ex.A.15 for

Rs.6,000/- and Rs.26,000/- and also final bill under Ex.A.16 issued by the

KIMS hospital for Rs.9,90,000/-. The remaining all other bills have not taken into consideration as all those were mentioned in final bills itself. The Ex.A.16 final bill issued on 08.08.2017. Whereas the Ex.A.9, Ex.A.18 issued on 9 04.09.2017 for Rs.3,57,231/- and also Ex.A.19 IP final bill dt:09.09.2017 for

Rs.50,171/- issued by KIMS hospital. Accordingly, the claimants established and proved that the deceased received the injuries in the above said accident caused by R.3 through crime vehicle and the deceased treated in various hospitals and the claimants spent the above expenditure and finally the deceased was died. The same is also supported by Exs.A.7 to A.12 discharge summaries and death summaries. Moreover, the Ex.B.1 is the policy for crime vehicle which was in force as on the date of accident. As such, R.2 is liable to pay the compensation to the claimants. Hence the claimants are entitled for the above medical and transport expenses.

12. According to P.W.1 the deceased was aged about 55 years as on the date of accident and worked as School Assistant in Mandal Praja

Parishad Upper Primary School, Nelampadu village, Chagalamarri mandal,

Kurnool District and drawing salary of Rs.61,990/- and also did cultivation and getting an income of Rs.50,000/- per year etc. In support of the same, they examined P.W.2 M.E.O., who deposed that the deceased worked as School

Assistant till his death in accident. He also produced the Ex.A.22 pay slip and also produced the service register of the deceased. Ex.A.22 shows the cross earnings of the deceased was Rs.61,990/- as on June 2017. The above evidence of P.Ws.1 and 2 and Ex.A.22 clarifies that the deceased worked as Teacher and his salary is Rs.61,990/- in the month of June, 2017 just prior to the accident.

13. The age of the deceased was 55 years as on the date of accident, the suitable multiplier as per decision of the Hon’ble Apex Court in

Sarla Varma and others Vs. Delhi Transport corporation, delivered on

15.04.2009, forthe age group of 50 to 55 is 11. The annual income of the 10 deceased would comes to Rs.7,43,880/-, after deducting 1/3 from the annual income, the same would comes to (Rs.7,43,880/- - Rs.2,47,960/- =

Rs.4,95,920/-). If Rs.4,95,920/- multiplied with 11 multiplier, the same would comes to Rs.54,55,120/-. Hence the claimants are entitled for the loss of earnings due to the death of deceased. Apart from the above amount, the claimants are also entitled for a sum of Rs.30,000/- towards funerals expenses,

Rs.50,000/- towards consortium and Rs.30,000/- towards attendant charges. In all the claimants are entitled for the following compensation.

Loss of earnings Rs.54,55,120-00

Transport chargesRs. 32,000-00

Funeral expenses.Rs. 30,000-00

Attendant chargesRs. 30,000-00

Loss of consortium Rs. 50,000-00

Medical expensesRs.14,26,012-00

Total (Rupees seventy lakhs twenty three thousandsRs.70,23,132-00 one hundred and thirty two only).

R.2 with whom the crime vehicle was insured is liable to pay the above said compensation to the claimants.

14. In the result, this claim petition is allowed with costs by awarding compensation of Rs.70,23,132/- (Rupees seventy lakhs twenty three thousands one hundred and thirty two only), with interest at 7.5% per annum from the date of petition till the date of payment. Claimant Nos.1 and 2 being the wife and son of the deceased are equally entitled each 50% from the above total compensation. Respondent No.2 is directed to pay the above said 11 compensation to the claimants directly since a period of 6 years already elapsed from the date of the accident and file the proof of payment in this court for the purpose of record. The Advocate fee is fixed at Rs.4,000/-.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me, in open court on this the 26th day of October, 2024.

Sd/- G.S.Ramesh Kumar,

Chairman, Motor Accidents Claims Tribunal-cum-II Addl. District Judge, Kadapa at Proddatur.

APPENDIX OF EVIDENCE

Witnesses examined for claimants: P.W.1. Gopireddy Devamma P.W.2. T.Anuradha,

Witnesses examined for respondent No.2: R.W.1. C.Suresh

Exhibits marked for claimants: Ex.A1: Certified Copy of F.I.R in Cr.No.71/2017 of Chagalamarri P.S Ex.A2: Certified Copy of Inquest report, Ex.A3: Certified Copy of Post-mortem report, Ex.A4: Certified Copy of M.V.I report, Ex.A5: Certified Copy of Charge sheet in Crime No.71/2017 of Chagalamarri P.S, Ex. A6: Prescriptions (6 in No’s) issued by Gowri Gopal intensive care Unit, Kurnool, Ex.A7: Discharge Summary dt.15-07-2017 issued by Gowri Gopal Hospital, Kurnool, Ex.A8: Discharge Summary dt.08-08-2017 issued by KIMS, Secunderabad, Ex.A9: Prescription dt.08-08-2017 issued by KIMS Hospital, Secunderabad, Ex.A10: Letter issued by Suvitas Post Hospitalization rehabilitation dt.13-08- 2017 { Subject to objection}, Ex.A11: Discharge Summary dt.02-09-2017 issued by KIMS, Secunderabad, Ex.A12: Death Summary of G.Venkateswara Reddy dt.09-09-2017 issued by KIMS, Secunderabad, Ex.A13: I.P. Final Bill dt.15-07-2017 issued by Gowri Gopal Hospital Pvt. Ltd, Kurnool for Rs.28,610/-, Ex.A14: Bill for Rs.6,000/- dt.14-07-2017 issued by Abhay Ambulance Services, Chagalamarri, Ex.A15: Bill for Rs.26,000/- dt.15-07-2017 issued by KCC Ambulance Services, Kurnool, 12

Ex.A16: I.P. Final Bill dt.08-08-2017 issued by KIMS,Secunderabad for Rs.9,90,000/-, Ex.A17: Pharmacy receipts (5 in No’s) dt.08-08-2017 for Rs.4,095/- issued by KIMS, Secunderabad, Ex.A18: I.P. Final Bill dt.04-09-2017 issued by KIMS, Secunderabad for Rs.3,57,231/-, Ex.A19: I.P. Final Bill dt.09-09-2017 issued by KIMS, Secunderabad for Rs.50,171/-, Ex.A20: Pharmacy receipt (water bed) dt.25-08-2017 for Rs.3,500/- issued by KIMS Hospital, Secunderabad, Ex.A21: Ambulance Charges receipt dt.10-09-2017 issued by Dr.S.N.Prasad, Prasad Nursing Home for Rs.25,000/-, Chagalamarri, { Subject to objection for proof and relevancy}, Ex.A22: Detailed Pay slips of deceased G.Venkateswara Reddy for the month of June-No Internet2016 to June 2017 (13 in No’s ) issued by M.E.O, Chagalamarri, Ex.A23: Reg.Sale deed dt.07-03-2009 vide document No.415/2009 executed in favour of deceased G.Venkateswara Reddy, Ex.A24: House Tax receipt dt.27-11-2019 issued by Panchayat Secretary, Chagalamarri for the House D.No.11-12/A in favour of G.Venkateswara Reddy (deceased), Ex.A25: Water Tax Receipt dt.17-11-2019 issued by Panchayat Secretary, Chagalamarri in favour of G.Venkateswara Reddy (deceased), Ex.A26: Title deed (Original) issued by The Tahsildar, Chagalamarri in favour of G.Venkateswara Reddy (deceased) bearing No.640, Ex.A27: Title deed (Original) issued by The Tahsildar, Chagalamarri in favour of G.Venkateswara Reddy (deceased) bearing No.427, Ex.A28: Attendant Cot bill issued by KIMS, Secunderabad for Rs.200/- dt.17- 7-2017, Ex.A29: Attendant Cot bill issued by KIMS, Secunderabad for Rs.250/- (2 in No’s) dt.18-7-2017, Ex.A30: Attendant Cot bill dt.19-7-2017 issued by KIMS, Secunderabad for Rs.200/-, Ex.A31: Attendant Cot bill dt.20-7-2017 issued by KIMS, Secunderabad for Rs.200/-, Ex.A32: Attendant Cot bill dt.21-7-2017 issued by KIMS, Secunderabad for Rs.100/-, Ex.A33: Attendant Cot bill dt.22-7-2017 issued by KIMS, Secunderabad for Rs.200/-, Ex.A34: Attendant Cot bill dt.23-7-2017 issued by KIMS, Secunderabad for Rs.200/-, Ex.A35: Invoice receipts (4 in No’s) issued by Sri Sri Nizams Medicals,Hyderabad for Rs.7,918/-, Ex.A36: O.P bill cum receipt issued by KIMS, Secunderabad dt.13-08-2017 for Rs.3,355/-, Ex.A37: Attendant Cot bill for Rs.100/- issued by KIMS, Secunderabad dt.14- 08-2017, Ex.A38: Reference letter dated:14-07-2017 issued by the Christian fellowship Hospital, Chagalamarri, { Subject to objection as the document has not contain seal and also signature of the doctor is not authentic}, 13

Ex.A39: Bills by Gowri Gopal Hospital and Christian fellowship Hospital for Rs.100/- and Rs.500/- dt.14-7-2017, Ex.A40: Suvitas Holistic Pvt.Ltd receipt dt.09-08-2017 for Rs.35,000/, Ex.A41: Bill issued by Suvitas Holistic Health care Ltd receipt dt.09-08-2017 for Rs.1033-50/-,{Ex.40 & 41 are marked to Subject to objection as they are not contained seal & signatures}, Ex.A42: Bill issued by Sri Sai Baba medical and general stores dt.09-08-2017 for Rs.487/-, {Subject to objection the bill not contained seal & signatures}, Ex.A43: Bill issued by Sri Sai Baba medical and general stores dt.10-08-2017 for Rs.870/-, {Subject to objection the bill not contained seal & signatures}, Ex.A44: GST Invoice issued by Medicare Galaxy LLP dt.10-08-2017 for Rs.1278/-, {Subject to objection the bill not contained seal & signatures}, Ex.A45: Bill issued by Sri Sai Baba medical and general stores dt.11-08-2017 for Rs.470/-, Ex.A46: GST Invoice issued by Medicare Galaxy LLP dt.12-08-2017 for Rs.4606/-, {Ex.A45, A46 are marked Subject to objection the bill not contained seal}, Ex.A47: permanent account number (Pan card) of G.Venkateswara Reddy No.ANVPG2586K, Ex.A48: Form No.16 for the year 2014-2015 pertaining to G.Venkateswara Reddy, Ex.A49: Bills and certificate, receipt issued by GITAM UNIVERSITY in the name of G.Raghava Reddy dated: 19-06-2017, 19-06-2017, 19-06-2017, 19- 06-2017, 13-07-2017 and 14-10-2017 { 6 in No’s} {Ex.A49 is marked as subject to objection as those were not related to claim petition and hence the

Hon’ble Court may pleased to verify and mark the same}.

Exhibits marked for respondent No.2:

Ex.B.1. Copy of policy.

Sd/- G.S.Ramesh Kumar,

Chairman, M.A.C.T-cum II Addl. District Judge,

Kadapa at Proddatur.

Crl.Appeal No. 46 of 2022 1 II Addl. Sessions Judge’s Court, Proddatur, dt. 30.01.2025.

IN THE COURT OF II ADDITIONAL SESSIONS JUDGE,

KADAPA AT PRODDATUR.

Present:- Sri G.S. Ramesh Kumar,

Special Sessions Judge for trial of Ofences

against Women-cum-

VII Addl. District & Sessions Judge’s Court, Kadapa

FAC II Additional District & Sessions Judge,

Kadapa at Proddatur.

Thursday, this the 30th day of January, 2025.

CRLIMINAL APPEAL. NO. 46 / 2022

From what court the Appeal II Addl. Judicial Magistrate of First Class, Proddatur. is

Number of the case in that C.C.No.626/2017 court Name and description of the 1ChelluboinaGangadhar,S/o. Appellants / Accused No.1 to Pullaiah, aged about 23 years, At 3 present Resident of Nanganuru Palli Village, proddatur mandal, Kadapa District (A.1). 2Kathi Vinod Kumar, S/o. Surya Narayana, aged about 23 years, Sanjeeva Nagar, Proddatur Town and Mandal, Kadapa District (A.2). 3DanduboinaObulesu,S/o. Narayana, aged about 24 years, Vivekananda Nagar, Proddatur Town and Mandal, Kadapa District (A.3). Name of the RespondentS.H.O., Rural Police Station, Proddatur.

Finding of lower CourtThe A.1 to A.3 are sentenced to undergo rigorous imprisonment for a period of two years for the ofence punishable under Sec.382 of I.P.C. and to pay a fne of Rs.200/- each in default of payment of fne, A.1 to A.3 shall sufer simple imprisonment for a period of 15 days. A.4 is sentenced to undergo rigorous imprisonment for a period of two years for the ofence punishable under Sec.411 of I.P.C.

Section of Law Under which it The A.1 to A.3 are convicted under Sec.248(2) of Cr.P.C. for the ofence 2 was imposed in Lower courtunder Sec.382 of I.P.C. and the A.4 is convicted under Sec.248(2) of Cr.P.C. for the ofence under Sec.411 of I.P.C. by acquitted the A.4 for the ofence under Sec.382 of I.P.C.

Whether confrmed, modifedIn the result, the appeal is allowed and the Judgment of the Trail Court in or reversed and if modifed C.C.No.626 of 2017 of the II Additional the modifcationJudicial Magistrate of First Class, Proddatur is set aside and the accused No.1 to 3 are found not guilty for the ofence under Sec.382 of Indian Penal Code and they are acquitted under Sec.386(b)(i)of Code of Criminal Procedure. The fne amount which was paid by the accused shall be returned to them after expiry of appeal time.

Dates of

Presentation29.06.2022 Filed on29.06.2022 Notice issued by Court-- Accused ordered to appear11.08.2022 Hearing20.12.2024 Judgment30.01.2025

The above appeal is coming on 20.12.2024 for fnal hearing before me in the presence of Sri M.Konda Reddy, Advocate for the Appellants and Additional Public Prosecutor for Respondent/ complainant, having stood over for consideration till this day and after hearing arguments on both sides and upon perusing the material papers on record, this court delivered the following:-

J U D G M E N T

This appeal is fled against the Judgment dated 09.06.2022 rendered in C.C.No.626 of 2017 on the fle of the II Additional Judicial

Magistrate of First Class Court, Proddatur wherein the learned Magistrate

Crl.Appeal No. 46 of 2022 3 II Addl. Sessions Judge’s Court, Proddatur, dt. 30.01.2025.

ordered that A.1 to A.3 are convicted under Sec.248(2) of Cr.P.C. for the ofence under Sec.382 of I.P.C. and the A.4 is convicted under

Sec.248(2) of Cr.P.C. for the ofence under Sec.411 of I.P.C. and the A.1 to A.3 are sentenced to undergo rigorous imprisonment for a period of two years for the ofence punishable under Sec.382 of I.P.C. and to pay a fne of Rs.200/- each in default of payment of fne, A.1 to A.3 shall sufer simple imprisonment for a period of 15 days. A.4 is sentenced to undergo rigorous imprisonment for a period of two years for the ofence punishable under Sec.411 of I.P.C. by acquitted the A.4 for the ofence under Sec.382 of I.P.C.

2. For the sake of convenience, the Petitioners herein shall be termed as Accused while respondent herein shall be termed as complainant while discussing the grounds of appeal on merits.

3.The brief averments of the prosecution as seen from the fnal report fled by the police is that defacto complainant by name

K.Nagamani came to police station on 28.08.2017 and lodged report.

The contents of report and averments of charge sheet stated that she has been working as secondary grade teacher in Ragallapalli village

Government school and residing in house bearing D.No.8/370 at

Swayamsevak road, that on 28.08.2017, while she was returning to home from school after school hours on scooty and when she reached

Nanganurupalli village, Meenapuram cross road, three persons came on

Hero Shine motorcycle from rear side, that the person who sat on last on motorcycle snatched black bead chain, talibottu sarudu, Talibottu and gundlu from her neck and fed away and as she does not control the balance, resulting which she fell down from scooty and then started 4 shouting, the persons who are working in the felds rushed to the scene of ofence and chased the Heri Shine motorcycle but in vain. The contents of the report further stated that black bead chain weight about 15 gms, talibottu sarudu weighing 27 gms and Talibottu and gundle weighing 3 gms are worth of Rs.98,000/-. Submitting thus defacto complainant lodged report with the police and the L.W.7 / Chandra

Sekhar, S.I. of police registered the same as a case in Cr.No.257/2017 under Sec.382 of I.P.C. and conducted investigation.

The averments of charge sheet further stated that during the course of investigation, L.W.7 examined L.Ws.1 and 2 / K.Nagamani and

K.Surya Narayana, recorded their statements and on 01.09.2017, L.W.7 arrested the A.1 to A.3 in the presence of panchayatdars L.Ws.3 & 4 /

P.Ravi Chandra Kumar and M.Bala Guruvaiah, recorded the confession statements of A.1 to A.3, seized Hero Shine motorcycle bearing No.AP04

AV 5132 and basing on confession of accused No.1, L.W.7 proceeded to the house of A.4 bearing D.No.13/544, Light palem street, Proddatur and arrested A.4 in the presence of L.Ws.3 and 4 recovered stolen property from the possession of accused No.4 under confession cum recovery panchanama and recovered black bead chain and talibottu sarudu having talibottu and gundlu and send accused to judicial custody. The contents of charge sheet further stated that on 02.09.2017, L.W.5 conducted property identifcation parade with L.W.1 at Kothapalli panchayat ofce, Proddatur and later as per the requisition of L.W.7,

L.W.6 conducted test identifcation parade on accused by L.W.1 at Sub

Jail, Proddatur and after completion of investigation, police fled charge sheet and accused No.1 to 4 alleging that A.1 to a.4 have committed an ofence punishable under Sec.382 or 411 of I.P.C.

Crl.Appeal No. 46 of 2022 5 II Addl. Sessions Judge’s Court, Proddatur, dt. 30.01.2025.

4.The case was taken on fle against the accused for the ofences punishable U/sec.382 of 411 of Indian Penal Code by the trial Court.

5.On appearance of the Accused before the learned trial Court, copies of documents were furnished to them as required u/sec.207 of

Criminal Procedure Code and they were examined u/sec.239 of Criminal

Procedure Code. Charge U/sec.382 or 411 of Indian Penal Code framed against the Accused, read over and explained to them in Telugu for which they pleaded not guilty and claimed to be tried.

6.On behalf of the prosecution, P.W.1 to P.W.5 were examined and got marked Ex.P.1 to Ex.P.11 and M.Os.1 & 2.

7.After closure of prosecution evidence, the Accused were examined U/sec. 313 Criminal Procedure Code in respect of incriminating circumstances found in the evidence of the prosecution witnesses for which they denied the same and reported no defence evidence.

8. Basing on the material available on record, the learned II Addl.

Judicial Magistrate of First Class, Proddatur has ordered that the A.1 to

A.3 are convicted under Sec.248(2) of Cr.P.C. for the ofence under

Sec.382 of I.P.C. and the A.4 is convicted under Sec.248(2) of Cr.P.C. for the ofence under Sec.411 of I.P.C. and the A.1 to A.3 are sentenced to undergo rigorous imprisonment for a period of two years for the ofence punishable under Sec.382 of I.P.C. and to pay a fne of Rs.200/- each in default of payment of fne, A.1 to A.3 shall sufer simple imprisonment for a period of 15 days. A.4 is sentenced to undergo rigorous imprisonment for a period of two years for the ofence punishable under

Sec.411 of I.P.C. by acquitted the A.4 for the ofence under Sec.382 of

I.P.C.

6

9. Aggrieved against the order that the A.1 to A.3 are

convicted under Sec.248(2) of Cr.P.C. for the ofence under

Sec.382 of I.P.C. and they are sentenced to undergo rigorous

imprisonment for a period of two years for the ofence

punishable under Sec.382 of I.P.C. and to pay a fne of Rs.200/-

each in default of payment of fne, A.1 to A.3 shall sufer simple

imprisonment for a period of 15 days, the appellants/ Accused

No.1 to 3 have preferred the present appeal for consideration

with the following grounds of appeal that:- “The Judgment of the Trial Court is unjust, contrary to law, weight of evidence and probabilities of the case and also failed to take consideration of the aspect of the unknown ofenders in the column No.7 in the FIR. Further, the P.W.5 turned as hostile and he did not support the prosecution case as he did not know the accused and he was not present at the time of arrest of accused and seizure of property and at request of police , he put his signature on some written papers, without gone through the contents of written papers. Further, the P.W.2 deposed in his chief examination that he does not know A.1 to A.4 and in his presence, the police seized one gold chain, one black bead chain and two small gold rings but the evidence of P.W.2 is unbelievable.

During cross of P.W.2, he has not known whether the seized gold chain and black bead chain were cut of by the time of seizure and if he really participated in arrest and seizure panchanamas he would have say about the position of the seized property and hence P.W.2 never participated in the arrest and seizure panchanamas and he gave false evidence

before the Court. Further, the P.W.1 did not clearly

mentioned the names of A.1 to A.3 either in her complaint or in Sec.161 Cr.P.C. statement and also did not mention in

Ex.P.1 that he cannot identify the accused and physical

Crl.Appeal No. 46 of 2022 7 II Addl. Sessions Judge’s Court, Proddatur, dt. 30.01.2025.

features of the accused and he did not afx her signature in the test identifcation of property panchanama and if really, the VRO conducted the test identifcation parade of property the VRO would have taken the signature of the P.W.1 as such the P.W.2 never conducted property test identifcation parade before the P.W.1 and during cross, the P.W.1 admitted that on the day of test identifcation parade day, the accused was shown by one court police constable.

Further, there were ill feelings between the A.1 and L.W.2 with regard to land property disputes between them and due said disputes, the L.W.2 got foisted the case against the accused. The P.W.4 clearly admitted in cross examination that the P.W.1 did not mention in Ex.P.1 and 161 Cr.P.C.

statement about the physical features of culprits and did not remember whether the seized chain was broken or not and the P.W.4 also did not examine the P.W.1’s school head master and other teachers from the school of P.W.1, he also not prepared scene observation report and the P.W.4 also not examined the surrounding owners of the felds at scene of ofence, which shows the P.W.4 not visited the scene of ofence and did not done the investigation properly and he made table investigation and he shown the photos of the accused to P.W.1, as such the P.W.1 identifed the accused and hence the identifcation parade is illegal. Further the

P.W.4 admitted in cross examination that some unknown ofenders committed the alleged ofence, as such the ingredients under Sec.382 of I.P.C. is not attracted and the accused are no way concerned to the present case and the

Trial court failed to appreciate the evidence properly and came to wrong conclusion.”

Hence prayed the Hon’ble Court to set aside the Judgment of the II

Additional Judicial Magistrate of First Class, Proddatur dt. 09.06.2022 in

C.C.No.626/2017 and acquit the petitioners / appellants by allowing the 8 appeal.

10. Now the point for determination is :-

1) Whether the order passed by the learned trial Court is unjust and contrary to law ?

2) If so, whether the Judgment of the trial Court is sustainable?

POINTS No.1 and 2 : -

11.Heard both sides. Perused the records. Keeping in view of the above contentions on both sides and on perusal of the record and

Judgment of the Trial Court, it is clear that the above case fled against the accused / appellants for the ofences under Sec.382 and 411 of I.P.C.

The prosecution adduced the evidence of P.Ws.1 to 5 and got marked

Exs.P.1 to P.11 and M.Os.1 and 2. The P.W.1 is the complainant. The

P.W.2 is a V.R.O. The P.W.3 is the Magistrate who conducted Test

Identifcation parade of the accused No.1 to 3. The P.W.4 is the

Investigating Ofcer. The P.W.5 is the punch witness.

12.The Trial court discussed the evidence of P.Ws.1 to 5 with reference to Exs.P.1 to P.11 and M.Os.1 and 2. The evidence of P.W.1 complainant shows that the A.1 to A.3 came in motorcycle from her rear side while she was moving in scooty, the A.2 snatched her gold Talibottu chain and gold black beeded chain from her neck and she lost the control on scooty and fall down on the road, the A.1 to A.3 fed away with snatched ornaments and then the P.W.1 lodged complaint to the police.

13.The evidence of Investigating Ofcer P.W.4 is that he

Crl.Appeal No. 46 of 2022 9 II Addl. Sessions Judge’s Court, Proddatur, dt. 30.01.2025.

received complaint from P.W.1, registered the case, visited the scene of ofence, examined and recorded the statements of P.W.1 and L.W.2

Suryanarayana and during the course of investigation, on 01.09.2017, on receipt of information, himself along with his staf rushed to

Kothapalli check post, Proddatur and while conducting vehicular checking, found A.1 to A3 on motorcycle and apprehended them. On enquiry, they revealed their particulars and confessed the ofence and also lead the police party to the house of A.4, where this P.W.4 caught hold the A.4 and seized the M.Os.1 and 2. Thereafter, arrested the accused and sent them for remand. The evidence of P.W.4 further revealed that on his directions, the P.W.2 conducted identifcation of

M.Os.1 and 2 through P.W.1 under cover of Ex.P.3.

14.Whereas the evidence of P.W.2 V.R.O. shows that on 01.09.2017, he was called by the concerned police to check post, he went there and noticed three persons, the police caught hold them and on enquiry, they revealed their identifcation particulars and confessed the ofence, the police seized one gold chain and one black beed chain and two small gold rings, the police seized the entire gold property and arrested the accused under cover of panchanama, he also attested in the said panchanama which is marked as Ex.P.2 and then they returned their ofce. No where he deposed anything about A.4. The said evidence is contradictory to the evidence of P.W.4, which revealed that on enquiry, the A.1 to A.3 confessed the ofence and stated that they kept the stolen property at A.4 for safe custody and they lead this PW.4 to the house of A.4 where he caught hold the A.4 and seized the M.Os.1 and 2 under cover of Ex.P.2.

10

15.Further, the P.W.2 said that on the next day i.e. on 02.09.2017, at about 9:00 A.M., he also conducted test identifcation of property i.e., M.Os.1 and 2 at Gramapanchayat ofce through P.W.1, the

P.W.1 identifed the M.Os.1 and 2 belonged to her and he prepared identifcation panchanama under Ex.P.3.

16.The evidence of another punch witness, who is P.W.5, what he deposed in his evidence is that, he does not know P.W.2 and he does not know the accused, he was not present by the time of arrest of accused and seizure of property but at request of police, he signed in some papers without gone through the contents. He identifed his signature in the panchanama which is marked as Ex.P.11, except that he does not know anything about the case facts.

17.The Trial Court failed to observe the uncorroborated above evidence of P.Ws.2, 4 & 5 in respect of confession of accused and seizure of M.Os.1 and 2 and arrest. The P.W.4 Investigating Ofcer no where deposed that he secured the presence of P.Ws.2 & 5 for confession of A.1 to A.3 and also seizure and apprehension of A.4 but the evidence of P.W.2 shows that he went to check post on request of police, where the police caught hold only three persons and seized

M.Os.1 and 2 and gold rings under cover of confession and seizure panchanama. In fact, the evidence of P.W.4 shows that he caught hold the A.1 to A.3 at one place and after recording their confession, they lead him to the house of A.4, where he caught hold the A.4 and seized the M.Os.1 and 2 and other property under cover of panchanama Ex.P.2.

There is no such evidence from P.W.2 in respect of their movement to the house of A.4 and seizure of M.Os.1 and 2 and arrest of A.1 to A.4 under cover of Ex.P.2.

Crl.Appeal No. 46 of 2022 11 II Addl. Sessions Judge’s Court, Proddatur, dt. 30.01.2025.

18.Further, the above evidence of P.Ws.2 & 4 is also totally contradicted by the evidence of P.W.5 another punch witness, who does not know the P.W.2 and accused and attested in Ex.P.2 at the instance of police without gone through the contents.

19.The P.W.1 being victim cum complainant herself admitted in her evidence that she has not mentioned in Ex.P.1 complaint about the descriptive particulars of A.1 to A.3, height, weight, complexion of colour etc., and she also not mentioned that she can identify them if shown. When such is the complaint and evidence of P.W.1, the question of her identifcation of A.1 to A.3 in test identifcation proceedings conducted by P.W.3 does not arise if at all she identifed that will become doubtful due to lack of source for identifcation as she could not observe them at the time of incident as per her complaint Ex.P.1.

20.The above discussed evidence of P.Ws.2, 4 & 5 leads to any amount of doubt on the case of the prosecution in respect of apprehension of A.1 to A.3 and their confession and their further movement to the house of A.4, where the P.W.4 is said to be seized

M.Os.1 and 2 under confession cum seizure panchanama Ex.P.2. When the above reasonable doubt arises out of the evidence of P.Ws.2, 4 & 5 on the above aspect, the question of proving of the case against accused by the prosecution beyond all reasonable doubt does not arise.

Therefore, the accused are entitled for acquittal. Hence the Judgment of the Trial court is liable to be set aside and the appeal is liable to be allowed.

In the result, the appeal is allowed and the Judgment of the Trail

Court in C.C.No.626 of 2017 of the II Additional Judicial Magistrate of First 12

Class, Proddatur is set aside and the accused No.1 to 3 are found not guilty for the ofence under Sec.382 of Indian Penal Code and they are acquitted under Sec.386(b)(i) of Code of Criminal Procedure. The fne amount which was paid by the accused shall be returned to them after expiry of appeal time.

Directly typed to my dictation by the Typist, corrected and

pronounced by me in the open court this the 30th January, 2025.

Sd/- G.S.Ramesh Kumar,

Special Sessions Judge for trial of Ofences against Women-cum-VII Addl. District & Sessions Judge’s Court, Kadapa, FAC II Addl. District & Sessions Judge, Kadapa at Proddatur.

Copy to the II Addl. Judicial Magistrate of First Class, Proddatur.

Crl.Appeal No. 41 of 2022 1 II Addl. Sessions Judge’s Court, Proddatur, dt. 30.01.2025.

IN THE COURT OF II ADDITIONAL SESSIONS JUDGE,

KADAPA AT PRODDATUR.

Present:- Sri G.S. Ramesh Kumar,

Special Sessions Judge for trial of Ofences

against Women-cum-

VII Addl. District & Sessions Judge’s Court, Kadapa

FAC II Additional District & Sessions Judge,

Kadapa at Proddatur.

Thursday, this the 30th day of January, 2025.

CRLIMINAL APPEAL. NO. 41 / 2022

From what court the Appeal II Addl. Judicial Magistrate of First Class, Proddatur. is

Number of the case in that C.C.No.626/2017 court Name and description of the Singanamala Siva Narayana (A.4), Appellant / Accused No.4 S/o. Lakshmi Narayana, aged 24 years, C/Gandla, Occupation: Tiles work, R/o. D.No.13/544, Light Palem Street, Proddatur Town, Kadapa District.

Name of the RespondentS.H.O., Rural Police Station, Proddatur.

Finding of lower CourtThe A.1 to A.3 are sentenced to undergo rigorous imprisonment for a period of two years for the ofence punishable under Sec.382 of I.P.C. and to pay a fne of Rs.200/- each in default of payment of fne, A.1 to A.3 shall sufer simple imprisonment for a period of 15 days. A.4 is sentenced to undergo rigorous imprisonment for a period of two years for the ofence punishable under Sec.411 of I.P.C.

Section of Law Under which itThe A.1 to A.3 are convicted under Sec.248(2) of Cr.P.C. for the ofence was imposed in Lower court under Sec.382 of I.P.C. and the A.4 is convicted under Sec.248(2) of Cr.P.C. for the ofence under Sec.411 of I.P.C. by acquitted the A.4 for the ofence under Sec.382 of I.P.C.

Whether confrmed, modifed In the result, the appeal is allowed and the Judgment of the Trail Court in 2 or reversed and if modifed C.C.No.626 of 2017 of the II Additional

Judicial Magistrate of First Class,

the modifcation Proddatur is set aside and the accused No.4 is found not guilty for the ofence under Sec.411 of Indian Penal Code and he is acquitted under Sec.386(b)(i) of Code of Criminal Procedure.

Dates of

Presentation22.06.2022 Filed on22.06.2022 Notice issued by Court-- Accused ordered to appear27.07.2022 Hearing10.01.2025 Judgment30.01.2025

The above appeal is coming on 10.01.2025 for fnal hearing before me in the presence of Sri B.Subba Reddy, Advocate for the Appellant and Additional Public Prosecutor for Respondent/ complainant, having stood over for consideration till this day and after hearing arguments on both sides and upon perusing the material papers on record, this court delivered the following:-

J U D G M E N T

This appeal is fled against the Judgment dated 09.06.2022 rendered in C.C.No.626 of 2017 on the fle of the II Additional Judicial

Magistrate of First Class Court, Proddatur wherein the learned Magistrate

ordered that A.1 to A.3 are convicted under Sec.248(2) of Cr.P.C. for the ofence under Sec.382 of I.P.C. and the A.4 is convicted under

Sec.248(2) of Cr.P.C. for the ofence under Sec.411 of I.P.C. and the A.1 to A.3 are sentenced to undergo rigorous imprisonment for a period of two years for the ofence punishable under Sec.382 of I.P.C. and to pay a

Crl.Appeal No. 41 of 2022 3 II Addl. Sessions Judge’s Court, Proddatur, dt. 30.01.2025.

fne of Rs.200/- each in default of payment of fne, A.1 to A.3 shall sufer simple imprisonment for a period of 15 days. A.4 is sentenced to undergo rigorous imprisonment for a period of two years for the ofence punishable under Sec.411 of I.P.C. by acquitted the A.4 for the ofence under Sec.382 of I.P.C.

2. For the sake of convenience, the Petitioners herein shall be termed as Accused while respondent herein shall be termed as complainant while discussing the grounds of appeal on merits.

3.The brief averments of the prosecution as seen from the fnal report fled by the police is that defacto complainant by name

K.Nagamani came to police station on 28.08.2017 and lodged report.

The contents of report and averments of charge sheet stated that she has been working as secondary grade teacher in Ragallapalli village

Government school and residing in house bearing D.No.8/370 at

Swayamsevak road, that on 28.08.2017, while she was returning to home from school after school hours on scooty and when she reached

Nanganurupalli village, Meenapuram cross road, three persons came on

Hero Shine motorcycle from rear side, that the person who sat on last on motorcycle snatched black bead chain, talibottu sarudu, Talibottu and gundlu from her neck and fed away and as she does not control the balance, resulting which she fell down from scooty and then started shouting, the persons who are working in the felds rushed to the scene of ofence and chased the Heri Shine motorcycle but in vain. The contents of the report further stated that black bead chain weight about 15 gms, talibottu sarudu weighing 27 gms and Talibottu and gundle weighing 3 gms are worth of Rs.98,000/-. Submitting thus defacto 4 complainant lodged report with the police and the L.W.7 / Chandra

Sekhar, S.I. of police registered the same as a case in Cr.No.257/2017 under Sec.382 of I.P.C. and conducted investigation.

The averments of charge sheet further stated that during the course of investigation, L.W.7 examined L.Ws.1 and 2 / K.Nagamani and

K.Surya Narayana, recorded their statements and on 01.09.2017, L.W.7 arrested the A.1 to A.3 in the presence of panchayatdars L.Ws.3 & 4 /

P.Ravi Chandra Kumar and M.Bala Guruvaiah, recorded the confession statements of A.1 to A.3, seized Hero Shine motorcycle bearing No.AP04

AV 5132 and basing on confession of accused No.1, L.W.7 proceeded to the house of A.4 bearing D.No.13/544, Light palem street, Proddatur and arrested A.4 in the presence of L.Ws.3 and 4 recovered stolen property from the possession of accused No.4 under confession cum recovery panchanama and recovered black bead chain and talibottu sarudu having talibottu and gundlu and send accused to judicial custody. The contents of charge sheet further stated that on 02.09.2017, L.W.5 conducted property identifcation parade with L.W.1 at Kothapalli panchayat ofce, Proddatur and later as per the requisition of L.W.7,

L.W.6 conducted test identifcation parade on accused by L.W.1 at Sub

Jail, Proddatur and after completion of investigation, police fled charge sheet and accused No.1 to 4 alleging that A.1 to a.4 have committed an ofence punishable under Sec.382 or 411 of I.P.C.

4.The case was taken on fle against the accused for the ofences punishable U/sec.382 of 411 of Indian Penal Code by the trial Court.

5.On appearance of the Accused before the learned trial Court, copies of documents were furnished to them as required u/sec.207 of

Criminal Procedure Code and they were examined u/sec.239 of Criminal

Crl.Appeal No. 41 of 2022 5 II Addl. Sessions Judge’s Court, Proddatur, dt. 30.01.2025.

Procedure Code. Charge U/sec.382 or 411 of Indian Penal Code framed against the Accused, read over and explained to them in Telugu for which they pleaded not guilty and claimed to be tried.

6.On behalf of the prosecution, P.W.1 to P.W.5 were examined and got marked Ex.P.1 to Ex.P.11 and M.Os.1 & 2.

7.After closure of prosecution evidence, the Accused were examined U/sec. 313 Criminal Procedure Code in respect of incriminating circumstances found in the evidence of the prosecution witnesses for which they denied the same and reported no defence evidence.

8. Basing on the material available on record, the learned II Addl.

Judicial Magistrate of First Class, Proddatur has ordered that the A.1 to

A.3 are convicted under Sec.248(2) of Cr.P.C. for the ofence under

Sec.382 of I.P.C. and the A.4 is convicted under Sec.248(2) of Cr.P.C. for the ofence under Sec.411 of I.P.C. and the A.1 to A.3 are sentenced to undergo rigorous imprisonment for a period of two years for the ofence punishable under Sec.382 of I.P.C. and to pay a fne of Rs.200/- each in default of payment of fne, A.1 to A.3 shall sufer simple imprisonment for a period of 15 days. A.4 is sentenced to undergo rigorous imprisonment for a period of two years for the ofence punishable under

Sec.411 of I.P.C. by acquitted the A.4 for the ofence under Sec.382 of

I.P.C.

9. Aggrieved against the order that the A.4 is sentenced to

undergo rigorous imprisonment for a period of two years for the

ofence punishalle under Sec.411 of I.P.C., the appellant/

Accused No.4 has preferred the present appeal for consideration

with the following grounds of appeal that:- 6 “The Judgment of the Trial Court is unjust, contrary to law, weight of evidence and probabilities of the case, the trial court ought to have rejected the evidence of interested testimony of P.W.1, who is alleged to have witnessed the accident as the independent witnesses are not examined by the prosecution and further during the evidence of P.W.1, no where stated about talibottu chain, gundlu and talibottu and further she has not shown any receipt or bills of M.Os.1 and 2 to the police but the police seized one gold chain and two small gold rings, which is contrary evidence over the M.Os.1 and 2 and the trial court ought to have found that the property alleged to have been snatched from P.W.1 was very same property that was seized from the possession of the appellant on the alleged confession of A.1 to A.3. The

P.W.2, who is an attestor has not deposed as to the manner and procedure in which he has conducted the identifcation of M.Os.1 and 2 and the trial court ought to have found that the M.Os.1 and 2 were not identifed properly by the P.W.1 as embodied in Rule 35 of Cr.P.C. and the same vitiates the proceedings recorded under Ex.P.3-A. Further the evidence of P.W.2 and the P.W.4 is totally contradictory with regard to manner of arrest of A.1 to A.3 and seizure of M.Os.1 and 2 and the P.W.2 did not even state that the P.W.4 seized the same from the appellant at his house and therefore, the conviction court considering the above inconsistency and ought to have acquitted the appellant. Further the confession of A.1 to A.3 who are co accused of appellant and the same is inadmissible in view of lack of legal evidence and the prosecution has failed to prove the seizure of M.Os.1 and 2 from the appellant by way of leagal evidence to prove the charge under Sec.411 of IPC and further there is no legal evidence to prove that the appellant was in possession of

M.Os.1 and 2 and there is no link evidence by examining the neighbours of the appellant and the I.O. has not even obtain the signature of any one of the A.1 to A.3 on the

Crl.Appeal No. 41 of 2022 7 II Addl. Sessions Judge’s Court, Proddatur, dt. 30.01.2025.

panchanama prepared at the house of appellant and thus, the appellant was not companion of A.1 to A.3 at the time when M.Os.1 and 2 were allegedly snatched away from

P.W.1 and the prosecution is not supposed to provoke the presumption under Sec.114 (Illustration) of Indian Evidence

Act and in view of the legal lapse on the part of prosecution, the trial court ought to have acquitted the appellant and the evidence of P.W.4 is totally uncorroborated by P.Ws.2 & 5 and the P.W.4 ought to have followed the prosecution under

Sec.100(4) Cr.P.C. at the time of seizure panchanama and the trial court ought to have acquitted the appellant.”

Hence prayed the Hon’ble Court to set aside the Judgment of the II

Additional Judicial Magistrate of First Class, Proddatur dt. 09.06.2022 in

C.C.No.626/2017 and acquit the petitioner / appellant by allowing the appeal.

10. Now the point for determination is :-

1) Whether the order passed by the learned trial Court is unjust and contrary to law ?

2) If so, whether the Judgment of the trial Court is sustainable?

POINTS No.1 and 2 : -

11.Heard both sides. Perused the records. Keeping in view of the above contentions on both sides and on perusal of the record and

Judgment of the Trial Court, it is clear that the above case fled against the accused / appellants for the ofences under Sec.382 and 411 of I.P.C.

The prosecution adduced the evidence of P.Ws.1 to 5 and got marked

Exs.P.1 to P.11 and M.Os.1 and 2. The P.W.1 is the complainant. The 8

P.W.2 is a V.R.O. The P.W.3 is the Magistrate who conducted Test

Identifcation parade of the accused No.1 to 3. The P.W.4 is the

Investigating Ofcer. The P.W.5 is the punch witness.

12.The Trial court discussed the evidence of P.Ws.1 to 5 with reference to Exs.P.1 to P.11 and M.Os.1 and 2. The evidence of P.W.1 complainant shows that the A.1 to A.3 came in motorcycle from her rear side while she was moving in scooty, the A.2 snatched her gold Talibottu chain and gold black beeded chain from her neck and she lost the control on scooty and fall down on the road, the A.1 to A.3 fed away with snatched ornaments and then the P.W.1 lodged complaint to the police.

13.The evidence of Investigating Ofcer P.W.4 is that he received complaint from P.W.1, registered the case, visited the scene of ofence, examined and recorded the statements of P.W.1 and L.W.2

Suryanarayana and during the course of investigation, on 01.09.2017, on receipt of information, himself along with his staf rushed to

Kothapalli check post, Proddatur and while conducting vehicular checking, found A.1 to A3 on motorcycle and apprehended them. On enquiry, they revealed their particulars and confessed the ofence and also lead the police party to the house of A.4, where this P.W.4 caught hold the A.4 and seized the M.Os.1 and 2. Thereafter, arrested the accused and sent them for remand. The evidence of P.W.4 further revealed that on his directions, the P.W.2 conducted identifcation of

M.Os.1 and 2 through P.W.1 under cover of Ex.P.3.

14.Whereas the evidence of P.W.2 V.R.O. shows that on 01.09.2017, he was called by the concerned police to check post, he went there and noticed three persons, the police caught hold them and

Crl.Appeal No. 41 of 2022 9 II Addl. Sessions Judge’s Court, Proddatur, dt. 30.01.2025.

on enquiry, they revealed their identifcation particulars and confessed the ofence, the police seized one gold chain and one black beed chain and two small gold rings, the police seized the entire gold property and arrested the accused under cover of panchanama, he also attested in the said panchanama which is marked as Ex.P.2 and then they returned their ofce. No where he deposed anything about A.4. The said evidence is contradictory to the evidence of P.W.4, which revealed that on enquiry, the A.1 to A.3 confessed the ofence and stated that they kept the stolen property at A.4 for safe custody and they lead this PW.4 to the house of A.4 where he caught hold the A.4 and seized the M.Os.1 and 2 under cover of Ex.P.2.

15.Further, the P.W.2 said that on the next day i.e. on 02.09.2017, at about 9:00 A.M., he also conducted test identifcation of property i.e., M.Os.1 and 2 at Gramapanchayat ofce through P.W.1, the

P.W.1 identifed the M.Os.1 and 2 belonged to her and he prepared identifcation panchanama under Ex.P.3.

16.The evidence of another punch witness, who is P.W.5, what he deposed in his evidence is that, he does not know P.W.2 and he does not know the accused, he was not present by the time of arrest of accused and seizure of property but at request of police, he signed in some papers without gone through the contents. He identifed his signature in the panchanama which is marked as Ex.P.11, except that he does not know anything about the case facts.

17.The Trial Court failed to observe the uncorroborated above evidence of P.Ws.2, 4 & 5 in respect of confession of accused and seizure of M.Os.1 and 2 and arrest. The P.W.4 Investigating Ofcer no 10 where deposed that he secured the presence of P.Ws.2 & 5 for confession of A.1 to A.3 and also seizure and apprehension of A.4 but the evidence of P.W.2 shows that he went to check post on request of police, where the police caught hold only three persons and seized

M.Os.1 and 2 and gold rings under cover of confession and seizure panchanama. In fact, the evidence of P.W.4 shows that he caught hold the A.1 to A.3 at one place and after recording their confession, they lead him to the house of A.4, where he caught hold the A.4 and seized the M.Os.1 and 2 and other property under cover of panchanama Ex.P.2.

There is no such evidence from P.W.2 in respect of their movement to the house of A.4 and seizure of M.Os.1 and 2 and arrest of A.1 to A.4 under cover of Ex.P.2.

18.Further, the above evidence of P.Ws.2 & 4 is also totally contradicted by the evidence of P.W.5 another punch witness, who does not know the P.W.2 and accused and attested in Ex.P.2 at the instance of police without gone through the contents.

19.The P.W.1 being victim cum complainant herself admitted in her evidence that she has not mentioned in Ex.P.1 complaint about the descriptive particulars of A.1 to A.3, height, weight, complexion of colour etc., and she also not mentioned that she can identify them if shown. When such is the complaint and evidence of P.W.1, the question of her identifcation of A.1 to A.3 in test identifcation proceedings conducted by P.W.3 does not arise if at all she identifed that will become doubtful due to lack of source for identifcation as she could not observe them at the time of incident as per her complaint Ex.P.1.

20.The above discussed evidence of P.Ws.2, 4 & 5 leads to any amount of doubt on the case of the prosecution in respect of

Crl.Appeal No. 41 of 2022 11 II Addl. Sessions Judge’s Court, Proddatur, dt. 30.01.2025.

apprehension of A.1 to A.3 and their confession and their further movement to the house of A.4, where the P.W.4 is said to be seized

M.Os.1 and 2 under confession cum seizure panchanama Ex.P.2. When the above reasonable doubt arises out of the evidence of P.Ws.2, 4 & 5 on the above aspect, the question of proving of the case against accused by the prosecution beyond all reasonable doubt does not arise.

Therefore, the accused are entitled for acquittal. Hence the Judgment of the Trial court is liable to be set aside and the appeal is liable to be allowed.

In the result, the appeal is allowed and the Judgment of the Trail

Court in C.C.No.626 of 2017 of the II Additional Judicial Magistrate of First

Class, Proddatur is set aside and the accused No.4 is found not guilty for the ofence under Sec.411 of Indian Penal Code and he is acquitted under Sec.386(b)(i) of Code of Criminal Procedure.

Directly typed to my dictation by the Typist, corrected and

pronounced by me in the open court this the 30th January, 2025.

Sd/- G.S.Ramesh Kumar,

Special Sessions Judge for trial of Ofences against Women-cum-VII Addl. District & Sessions Judge’s Court, Kadapa, FAC II Addl. District & Sessions Judge, Kadapa at Proddatur.

Copy to the II Addl. Judicial Magistrate of First Class, Proddatur.

Crl.Appeal No.58 of 2023 II Addl. Sessions Judge’s Court, Proddatur, dt.30.01.2025 1

IN THE COURT OF II ADDITIONAL SESSIONS JUDGE,

KADAPA AT PRODDATUR.

Present:- Sri G. S.Ramesh Kumar,

Special Sessions Judge for trial of Ofences against Women-cum-VII Addl. District & Sessions Judge’s Court, Kadapa, FAC II Addl. District & Sessions Judge, Kadapa at Proddatur.

Thursday, this the 30th day of January, 2025.

CRLIMINAL APPEAL. NO. 58/2023

From what court the Appeal I Addl. Judicial Magistrate of First Class Court, Proddatur. is

Number of the case in that C.C.No.893/2017 court Name and description of theB.S.C. Mahaboob Basha, Aged 53 years, Son of B.S. Chabu Sahib, Appellant / Accused working as SG Teacher, Mahaboob Aided Primary School, Banaganapalli village & Mandal, Kurnool District.

Name of the Respondent / D. Chandra Sekhar Reddy, Aged 34 Complainantyears, Son of Prathap Reddy, Business,r/o.D.No.24/667, Vasanthapeta,Proddaturtown, Kadapa District.

Section of Law Under which Accused is convicted under Sec.255(2) it was imposed in Lower of Cr.P.C. for the ofence under courtSec.138 of Negotiable Instruments Act and thereby the accused is sentenced to undergo a simple imprisonment for a period of one year and also to pay Rs.2,50,000/- (Rupees Two lakhs and fiftythousandonly)towards compensationfortheofence punishable u/Sec.138 r/w.142 of the N.I. Act. The accused is directed to deposit the said compensation amount of Rs.2,50,000/- before the Court within 30 days from this day, failing which the same shall be recovered as pertheprocedureenvisaged u/Sec.421 of Cr.P.C. and if it is not recoverable, and in default of payment of the compensation, the accused shall further undergo simple imprisonment 2 for a period of 6 (Six) months (as per the Judgment of the Hon'ble Supreme Court held in the case of R.Mohan Vs. A.K.Vijay Kumar, 2012 (8) SCC 721). The total compensation amount of Rs.2,50,000/-,imposedagainst accused, is awarded to the complainant towards compensation u/ Sec.357 (3) of Cr.P.C. The complainant is entitled to receive the compensation amount after the expiry of appeal time.

Whether confirmed, modifiedIn the result, the appeal is dismissed by confirming the judgment of the trial or reversed and if modified Court in C.C.No.893 of 2017 the modificationdt.20.04.2023 on the file of the I Addl.

Judicial Magistrate of First Class Court,

Proddatur rendered by the I Addl.

Judicial Magistrate of First Class,

Proddatur. The trial Court is directed to secure the presence of accused and commit him to prison as per it’s judgment, after expiry of appeal time.

Dates of

Presentation04.05.2023 Filed on05.05.2023 Notice issued by Court16.05.2023 Accused ordered to appear21.07.2023 Hearing20.12.2024 Judgment30.01.2025

The above appeal is coming on 20.12.2024 for final hearing before me in the presence of Sri A.Sudarshana, Advocate for the Appellant /

Accused and Sri K.Jagannatha Sastry, Advocate for Respondent /

Complainant for State on behalf of the Respondent, having stood over for consideration till this day and after hearing arguments on both sides and upon perusing the material papers on record, this court delivered the following:-

J U D G M E N T

This appeal is filed against the Judgment dated 20.04.2023 rendered in C.C.No.893/2017 on the file of the I Addl. Judicial Magistrate of First Class Court, Proddatur, wherein the learned Magistrate ordered

Crl.Appeal No.58 of 2023 II Addl. Sessions Judge’s Court, Proddatur, dt.30.01.2025 3 that the Accused is convicted under Sec.255(2) of Cr.P.C. for the ofence under Sec.138 of Negotiable Instruments Act and thereby the accused is sentenced to undergo a simple imprisonment for a period of one year and also to pay Rs.2,50,000/- (Rupees Two lakhs and fifty thousand only) towards compensation for the ofence punishable u/Sec.138 r/w.142 of the N.I. Act. The accused is directed to deposit the said compensation amount of Rs.2,50,000/- before the Court within 30 days from this day, failing which the same shall be recovered as per the procedure envisaged u/Sec.421 of Cr.P.C. and if it is not recoverable, and in default of payment of the compensation, the accused shall further undergo simple imprisonment for a period of 6 (Six) months (as per the Judgment of the Hon'ble Supreme Court held in the case of R.Mohan Vs. A.K.Vijay

Kumar, 2012 (8) SCC 721). The total compensation amount of

Rs.2,50,000/-, imposed against accused, is awarded to the complainant towards compensation u/Sec.357 (3) of Cr.P.C. The complainant is entitled to receive the compensation amount after the expiry of appeal time.

2. For the sake of convenience, the parties will be referred as arrayed in the trial Court.

3.The brief averments of the prosecution case are that there are money transactions in between complainant and accused and due to the said acquaintance, on 01.10.2017, the accused approached the complainant for hand loan of Rs.2,50,000/- and promissed to repay the same within 15 days and accordingly, the accused borrowed an amount of Rs.2,50,000/- from the complainant on 01.10.2017 towards hand loan 4 from the complainant. The complainant demanded the accused several times for repayment of the above said hand loan. As such, the accused issued a cheque bearing No.672353 dt.20.10.2017 for Rs.2,50,000/-, drawn on State Bank of India, Bank Street, Banaganapalli Branch for repayment of the said loan in favour of the complainant. At the request of the accused, on 21.10.2017, the complainant presented the said cheque for collection through State Bank of India, Proddatur Branch, but the same was dishonoured due to “funds insufcientn and returned vide memo on the same day and as such, the complainant got issued legal notice dt.23.10.2017 and the said notice was received by the accused on 30.10.2017, but he did not gave any reply notice or did not choose to repay the amount under dishonoured cheque. Thereby, the accused has committed an ofence u/Sec.138 r/w.142 of Negotiable Instruments Act.

Hence, the complaint.

4.The case was taken on file against the Accused for the ofences punishable U/sec.138 of Negotiable Instruments Act by the trial

Court and copies of documents were furnished to him as required u/sec.207 of Criminal Procedure Code and he was examined u/sec.251 of

Criminal Procedure Code for the ofence under section 138 of Negotiable

Instruments Act, explained the substance of accusation to the accused in Telugu, for which, he pleaded not guilty and claimed the case to be tried. On behalf of the prosecution, P.Ws.1 & 2 were examined and got marked Exs.P.1 to P.4 and after closure of complainant side evidence,

Accused was examined u/sec.313 of Criminal Procedure Code, for which he denied the same and reported no evidence on his behalf and further no documentary evidence marked on his behalf. After hearing

Crl.Appeal No.58 of 2023 II Addl. Sessions Judge’s Court, Proddatur, dt.30.01.2025 5 arguments on both sides, basing on the material available on record, the learned I Addl. Judicial Magistrate of First Class, Proddatur ordered that

Accused is convicted under Sec.255(2) of Cr.P.C. for the ofence under

Sec.138 of Negotiable Instruments Act and thereby the accused is sentenced to undergo a simple imprisonment for a period of one year and also to pay Rs.2,50,000/- (Rupees Two lakhs and fifty thousand only) towards compensation for the ofence punishable u/Sec.138 r/w.142 of the N.I. Act. The accused is directed to deposit the said compensation amount of Rs.2,50,000/- before the Court within 30 days from this day, failing which the same shall be recovered as per the procedure envisaged u/Sec.421 of Cr.P.C. and if it is not recoverable, and in default of payment of the compensation, the accused shall further undergo simple imprisonment for a period of 6 (Six) months (as per the Judgment of the Hon'ble Supreme Court held in the case of R.Mohan Vs. A.K.Vijay

Kumar, 2012 (8) SCC 721). The total compensation amount of

Rs.2,50,000/-, imposed against accused, is awarded to the complainant towards compensation u/Sec.357 (3) of Cr.P.C. The complainant is entitled to receive the compensation amount after the expiry of appeal time.

5. Aggrieved against the order that the Accused is convicted

under Sec.255(2) of Cr.P.C. for the ofence under Sec.138 of

Negotiable Instruments Act and thereby the accused is

sentenced to undergo a simple imprisonment for a period of one

year and also to pay Rs.2,50,000/- (Rupees Two lakhs and ffty

thousand only) towards compensation for the ofence

6

punishable u/Sec.138 r/w.142 of the N.I. Act. The accused is

directed to deposit the said compensation amount of

Rs.2,50,000/- before the Court within 30 days from this day,

failing which the same shall be recovered as per the procedure

envisaged u/Sec.421 of Cr.P.C. and if it is not recoverable, and in

default of payment of the compensation, the accused shall

further undergo simple imprisonment for a period of 6 (Six)

months (as per the Judgment of the Hon'ble Supreme Court held

in the case of R.Mohan Vs. A.K.Vijay Kumar, 2012 (8) SCC 721).

The total compensation amount of Rs.2,50,000/-, imposed

against accused, is awarded to the complainant towards

compensation u/Sec.357 (3) of Cr.P.C. The complainant is

entitled to receive the compensation amount after the expiry of

appeal time, the Appellant / Accused has preferred the present

appeal for consideration with the following grounds of appeal

are that:-

1. The lower court erred in finding the appellant / accused guilty under Sec.138 of N.I. Act.

2. The lower court erred in accepting the evidence of prosecution witnesses.

3. The lower court failed to see discrepancies in the evidence of prosecution witness and failed to assess the evidence of prosecution witnesses in accepting the evidence on record.

4. The lower court erred in convicting the accused Under

Sec.255(2) of Cr.P.C. while acquitting the accused.

5. The lower court only believing the version of the respondent / complainant, made conviction to this accused.

6. The lower court failed to consider the facts and circumstances

Crl.Appeal No.58 of 2023 II Addl. Sessions Judge’s Court, Proddatur, dt.30.01.2025 7 of the case.

7. The lower court failed to consider the evidence of P.W.2 i.e.,

The Branch Manager, Indian Bank, Proddatur branch. The

Branch Manager, Indian Bank, Proddatur branch clearly admitted that in his cross examination, she did not bring any record before the trial court at the time of her evidence to prove whether the subject matter of case cheque i.e., Ex.P.1 send for collection to the Accused Bank i.e., State Bank of India,

Banaganapalli Branch or not. The Branch Manager, State Bank of India, Proddatur branch themselves issued return memo i.e., the Ex.P.2 without knowledge of Appellant / Accused bank is not maintainable as per N.I. Act. Hence Sec.138 and 142 of N.I. Act not attracted against this appellant / Accused.

8. The lower court failed to consider that the complainant did not file any substitute document to prove the consideration of the case cheque Ex.P.1 and the complainant did not prove that where lend the amount of Rs.2,50,000/- and the complainant did not shown in his Income Tax returns to that amount. It is clearly proved in the evidence of complainant. The complainant admitted that the cheque amount did not shown in his income tax returns. Hence the cheque amount comes under the unaccountable amount.

9. The lower court did not consider the precedent of 2017(2) L.S.

(Hyd.) 291 passed by the Hon’ble Justice M.Satyanarayana

Murthy. The said Judgment clearly shows that the unaccountable amount and such debt is not recoverable.

10. The lower court miserably failed to consider presumption under Sec.118 and 139 of N.I. Act in proper perspective.

11. The lower court miserably failed to consider the fact that service statutory legal notice to this appellant / accused in this case Ex.P.4 clearly shows that the complainant tampering the

Ex.P.4 before filing of this complaint as per N.I. Act, the corrections on the document not valid to take considering the

Evidence. The Ex.P.4 clearly shows that the Ex.P.4 received 8 unknown person. The complainant failed to examine the said person who received Ex.P.4. Hence Sec.138 and 142 of NI Act not attracted against this appellant / Accused.

12. The lower court utterly failed to consider the facts and circumstances of the case and evidence. The appellant / accused have good grounds to succeed his case.

13. The appeal filed by the appellant / accused may be allowed by suspending the conviction and judgment of the lower court by perusing the records and grounds of the appeal; otherwise, the appellant will be sufered a lot.

14. The lower court failed to consider the cross examination of

P.W.1 deposed by him.

Hence prayed to set aside the Judgment passed by the learned I

Addl. Judicial Magistrate of First Class, Proddatur against the appellant in

CC.No.893/2017 dt.20.04.2023.

6. Now the point for determination is :-

1) Whether the order passed by the learned trial Court is unjust and contrary to law ?

2) If so, whether the Judgment of the trial Court is sustainable?

POINTS No.1 and 2 : -

7. Heard on both sides. Perused the record. Keeping in view of the contentions on both sides and on perusal of the records and Judgment of the trial court, it is clear that the complainant filed the private complaint against the accused for the ofence under Sec.138 r/w 142 of NI Act and adduced the evidence of himself as P.W.1 and got examined the Bank

Manager P.W.2 who returned the cheque under Ex.P.2 and got marked

Exs.P.1 to P.4. The Ex.P.1 is the cheque, the Ex.P.2 is the returned memo,

Crl.Appeal No.58 of 2023 II Addl. Sessions Judge’s Court, Proddatur, dt.30.01.2025 9 the Ex.P.3 is the ofce copy of legal notice, the Ex.P.4 is the served acknowledgment and the Trial court found the accused as guilty and convicted.

8.The appellant contended that the trial court ignored the evidence of P.W.2 who admitted in his cross examination that his bank did not send the Ex.P.1 for collection to the State Bank of India,

Banaganapalli where the accused has an account. The P.W.2 himself issued Ex.P.2 without the knowledge of the Bank in which the accused has the accused as such the complaint is not maintainable under NI Act and the ingredients under Sec.138 and 142 of NI Act not attracted against the accused.

9.On perusal of the evidence of P.W.2, it is clear that the

P.W.2 admitted in his evidence that “as there is online transactions, they saw the amount in the account and as there is no balance in the said account, they returned the said cheque as funds insufcientn and he did not send the cheque to the State Bank of India, Banaganapalli branch for collection and the witness adds that there is no need to send the cheque to above said cheque leaf belongs to the State Bank of India.

10.Admittedly, the P.W.2 is Bank Manager, State Bank of

India, Main Branch, Proddatur. The cheque under Ex.P.1 is also pertains to the State Bank of India. The branch name is diferent i.e.,

Banaganapalli but the bank is one and the same i.e., State Bank of India.

Further more, there are online transactions as such, the P.W.2 saw the amount in the account of the accused and found that there is no balance in the said account and hence returned the said cheque under Ex.P.2. As 10 there is no need to send the said cheque Ex.P.1 to the branch of

Banaganapalli. Therefore, the above contention of the appellant is not at all acceptable.

11.The appellant further contended that the trial court did not consider that the complainant not filed any substitute document to prove the consideration of the cheque under Ex.P.1 and he also not proved where he lent the amount and he also not shown the said amount in his income tax returns, as such the cheque amount comes under unaccountable account and the trial court not considered the precedent of 2017(2) LS (HYD) 291. The unaccountable amount and such debt is not recoverable but the above contention of the appellant are not at all acceptable since the trial court referred the citations its own and the accused not at all relied on the above referred Judgment of the Hon’ble High Court.

12. However, the trial court found with presumption under

Sec.118 of NI Act in respect of receipt of consideration under Ex.P.1 and the financial capacity of the complainant to lend amount to the accused under Ex.P.1 and the mere admission of the complainant that he did not show the cheque amount in his income tax returns itself does not render the cheque amount as unaccountable without knowing whether the complainant is income tax assessee or not. Hence, it is clear that, the judgment of the Trial Court does not sufers from any of the legal infirmities and it is needless to interfere into the said Judgment of the

Trial court based on the above contentions of the appellant. Therefore, the Judgment of the Trial court is liable to be confirmed and appeal is liable to be dismissed.

Crl.Appeal No.58 of 2023 II Addl. Sessions Judge’s Court, Proddatur, dt.30.01.2025 11

In the result, the appeal is dismissed by confirming the judgment of the trial Court in C.C.No.893 of 2017 dt.20.04.2023 on the file of the I Addl. Judicial Magistrate of First Class Court, Proddatur rendered by the I Addl. Judicial Magistrate of First Class, Proddatur. The trial Court is directed to secure the presence of accused and commit him to prison as per it’s judgment, after expiry of appeal time.

Directly typed to my dictation by the Typist, corrected and

pronounced by me in the open court this the 30th day of January, 2025.

Sd/- G.S.Ramesh Kumar,

Special Sessions Judge for trial of Ofences against Women-cum-VII Addl. District & Sessions Judge’s Court, Kadapa, FAC II Addl. District & Sessions Judge, Kadapa at Proddatur.

Copy to the I Addl. Judicial Magistrate of First Class, Proddatur.

Crl.Appeal No. 22 of 2023 1II Addl. Sessions Judge’s Court, Proddatur, dt.26.10.2024.

IN THE COURT OF II ADDITIONAL SESSIONS JUDGE,

KADAPA AT PRODDATUR.

Present:- Sri G. S.Ramesh Kumar,

II Additional Sessions, Judge,

Kadapa at Proddatur.

Saturday, this the 26th day of October, 2024.

CRLIMINAL APPEAL. NO. 22 / 2023

From what court the Appeal isPrincipal Junior Civil Judge’s Court, Proddatur.

Number of the case in that C.C.No.411/2017 court Name and description of theBangi Siva Prasad, aged about 32 years, Appellant / AccusedS/o. Ramakrishnaiah, Hindu, Servant in Hotel, Residing at D.No.12/273, Pappulabazar Street, Proddatur Town, Kadapa District.

Name of the complainantGudugundla Ramesh, aged about 48 years, S/o. Subramanyam, Hindu, Business, Residing at D.No.12/650-1, Kota Street, Proddatur Town, Kadapa District.

Finding of lower CourtAccused is found guilty for the ofence under Sec.138 of Negotiable Instruments

Act.

Section of Law Under which it Accused is convicted under Sec.255(2) was imposed in Lower courtof Cr.P.C. for the ofence under Sec.138 of Negotiable Instruments Act and he is sentencedtosuferrigorous imprisonment for a period of one year and he shall also pay compensation of

Rs.8,90,000/- to the complainant as per section 357 (1) (b) of Cr.P.C., within a period of three months from today. In default of payment of said compensation amount, the accused shall undergo simple imprisonment for a period of three months.

2

Whether confrmed, modifed In the result, the appeal is dismissed by or reversed and if modifed confrming the judgment of the trial the modifcationCourtinC.C.No.411/2017dt.

30.01.2023 on the fle of the Principal

Junior Civil Judge’s Court, Proddatur rendered by the Principal Junior Civil

Judge, Proddatur. The trial Court is

directed to secure the presence of accused and commit him to prison as per it’s judgment, after expiry of appeal time.

Dates of

Presentation09.02.2023 Filed on09.02.2023 Notice issued by Court-- Accused ordered to appear01.06.2023 Hearing24.10.2024 Judgment26.10.2024

The above appeal is coming on 24.10.2024 for fnal hearing

before me in the presence of Sri P.Chandra Sekhar, Advocate for the

Appellant / Accused and Sri C.Shakeel Ahammed, Advocate for

Respondent / Complainant, having stood over for consideration till this day and after hearing arguments on both sides and upon perusing the material papers on record, this court delivered the following:-

J U D G M E N T

This appeal is fled against the Judgment dated 30.01.2023 rendered in C.C.No.411/2017 on the fle of the Principal Junior Civil

Judge’s Court, Proddatur wherein the learned Magistrate ordered that

Accused is convicted under Sec.255(2) of Criminal Procedure Code and he is sentenced to sufer rigorous imprisonment for a period of one year and he shall also pay compensation of Rs.8,90,000/- to the complainant as

Crl.Appeal No. 22 of 2023 3II Addl. Sessions Judge’s Court, Proddatur, dt.26.10.2024.

per section 357 (1) (b) of Cr.P.C., within a period of three months from today. In default of payment of said compensation amount, the accused shall undergo simple imprisonment for a period of three months for the ofence under Sec.138 of Negotiable Instruments Act.

2. For the sake of convenience, the Petitioner herein shall be termed as accused while respondent herein shall be termed as complainant while discussing the grounds of appeal on merits.

3.The brief averments of the complaint’s case are that the accused has borrowed an amount of Rs.8,90,000/- for his business purpose as hand loan and in receipt of the borrowed amount accused has issued a cheque for Rs.8,90,000/- of Proddatur, Co-operative Town

Bank Limited bearing no.90621 dated 20.02.2015 and the said cheque was returned with an endorsement as “Funds Insufcientn from the accused bank ie., Proddatur Co-operative Town Bank Limited when presented by the complainant through Lakshmi Vilas Bank Limited,

Proddatur on 02.03.2015, and the complainant has requested the accused for payment of cheque amount and as accused refused to pay amount, complainant got issued legal notice dated 09.03.2015 to accused demanding him to pay the dishonored cheque amount of

Rs.8,90,000/- and inspite of receipt of said notice the accused neither give reply nor pay the cheque amount. It is further averred that accused knowing well the insufciency of funds in his account issued cheque hence accused committed an ofence punishable under section 138 of NI

Act. Hence, the complaint.

4.The case was taken on fle against the accused for the ofences punishable U/sec.138 of Negotiable Instrument Act by the trial

Court.

4

5.On appearance of the accused before the learned trial Court, copies of documents were furnished to him as required u/sec.207 of

Criminal Procedure Code and he was examined u/sec.251 of Criminal

Procedure Code and the substance of accusation for the ofence

U/sec.138 of N.I.Act, read over and explained to him in Telugu for which he pleaded not guilty and claimed to be tried.

6.On behalf of the complainant, P.W.1 was examined and got marked Ex.P.1 to Ex.P.5.

7.After closure of prosecution evidence, the accused was examined U/sec. 313 Criminal Procedure Code in respect of incriminating material against the accused for which he denied the same and reported no defence evidence.

8. Basing on the material available on record, the learned I

Addl. Judicial Magistrate of First Class, Proddatur has convicted the

Accused under Sec.255(2) of Criminal Procedure Code and he is sentenced to sufer rigorous imprisonment for a period of one year and he shall also pay compensation of Rs.8,90,000/- to the complainant as per section 357 (1) (b) of Cr.P.C., within a period of three months from today. In default of payment of said compensation amount, the accused shall undergo simple imprisonment for a period of three months for the ofence under Sec.138 of Negotiable Instruments Act.

9. Aggrieved against the order that Accused is convicted

under Sec.255(2) of Criminal Procedure Code and he is

sentenced to sufer rigorous imprisonment for a period of one year

and he shall also pay compensation of Rs.8,90,000/- to the

complainant as per section 357 (1) (b) of Cr.P.C., within a period of

three months from today. In default of payment of said

Crl.Appeal No. 22 of 2023 5II Addl. Sessions Judge’s Court, Proddatur, dt.26.10.2024.

compensation amount, the accused shall undergo simple

imprisonment for a period of three months for the ofence under

Sec.138 of Negotiable Instruments Act , the appellant / Accused

has preferred the present appeal for consideration with the

following grounds of appeal are that:- “The Judgment and conviction of the trial court is not maintainable either in law or on the facts that the trial court is contrary to law, weight of evidence and probabilities of the case and there is no evidence on record to conclude the case in conviction. The Trial court failed to consider the contradictions in the evidence of P.W.1 that the accused borrowed an amount of Rs.8,90,000/- from the complainant by way of hand loan but in the complaint, it was mentioned that the accused borrowed an amount of Rs.8,90,000/- from the complainant at the rate of 24% per annum admittedly in the legal notice, the complaint or chief afdavit the complainant did not mention that when the accused approached the complainant for loan and gave amount to the accused and the same was admitted in cross examination. Further, there is no acknowledgment to show the accused borrowed amount and the same is legally enforceable debt and further admitted in cross examination that the complainant is an income tax assessee and the same was shown in income tax returns but he had not fled the same before the court to prove the amount under

Ex.P.1 is legally enforceable, which clearly shows the accused never gave the said Ex.P.1 cheque in favour of the complainant. Further there is no need to examine the P.Ws.2 & 3 but he did not take any steps to summon the income tax ofcer and there is no proof to show the accused borrowed such huge amount and issued Ex.P.1 cheque but the same was not considered 6 by the Trial Court. In the year 2013, in need of money, the accused borrowed Rs.1,00,000/- from the complainant and as per the demand of the complainant, the accused issued cheque towards security without mentioning the date and amount but after clearance of the debt, while the accused asked about the cheque, the complainant informed that the cheque was misplaced and would give after traced out the same and on believing the said words, the accused did not insist for the said cheque of for any receipt or acknowledgment but the complainant fled the said cheque for collection for unlawful gain but the Trial court not considered the same and gave erroneous

Judgment. Further the accused opened account in his bank in the year 2012 and obtained cheque book in the year 2012 itself in order to utilize the same for Sri

Ram Finance installments, except that he did not utilize the said cheques for any other purpose and the same was admitted by PW.3 and that there is no any legally enforceable debt in between the complainant and accused and hence prayed to set aside the

Judgment of the Trial Court.n 10. Now the point for determination is :-

1) Whether the order passed by the learned trial Court is unjust and contrary to law ?

2) If so, whether the Judgment of the trial Court is sustainable?

POINTS No.1 and 2 : -

11. Heard both sides. Perused the records. Keeping in view of the contentions on both sides and on perusal of the record and Judgment of the trial court, it is clear the complainant fled the complaint under

Sec.138 of NI Act based on Ex.P.1 cheque for a sum of

Crl.Appeal No. 22 of 2023 7II Addl. Sessions Judge’s Court, Proddatur, dt.26.10.2024.

Rs.8,90,000/- and adduced evidence of himself as P.W.1 and got examined P.Ws.2, 3 and marked Exs.P.1 to P.5 by stating that the accused borrowed the above said amount of Rs.8,90,000/- as a hand loan and issued the Ex.P.1 when the same was presented for collection dishonoured due to lack of sufcient funds under

Exs.P.2 & P.3. The notice issued under Ex.P.4 to accused, the

Ex.P.5 is the served acknowledgment.

12.The defence of the accused and his contentions in his appeal are that, the complainant failed to fle income tax returns and to examine anybody to show that the amount under Ex.P.1 is legally enforceable debt. He also contended that he borrowed an amount of Rs.1,00,000/- from the complainant in the year 2013 and on demand of the complainant, he issued Ex.P.1 black cheque towards security for the above said debt of Rs.1,00,000/- without mentioning the date, amount and anything in Ex.P.1 except his signature and subsequently, he cleared the above debt of

Rs.1,00,000/- and asked the complainant for return of the cheque in turn, the complainant informed that the cheque was misplaced and assured that he would return when ever traced and due to subsequent misunderstandings, the complainant taking advantage of the possession of the cheque, got flled the said cheque and fled the complaint on hand in the year 2015 for wrongful gain, except that the accused not at all borrowed such a huge amount from the complainant under Ex.P.1 nor issued Ex.P.1 in favour of complainant towards any legally enforceable debt. He also contended that he opened the account in the bank in the year 2012 and obtained the cheque book and utilized the cheques 8 to clear the Shriram Finance installments but not utilized the said cheques for any other purpose. The P.W.3 Bank Manager also admitted the same.

13.The above defence of the appellant, he admitted the issuance of Ex.P.1 in favour of the complainant and contended that he issued the blank signed cheque in the year 2013, the same was got flled by the complainant and fled the complaint in the year 2015. Except the said suggestions to the P.W.1, no other evidence is there to substantiate the above defence of the accused. He never issued any legal notice demanding the complainant for return of cheque after his discharge of Rs.1 lakh debt to the complainant in the year 2013. Based on the above contentions, he pleaded that the debt under Ex.P.1 is not legally enforceable debt but he failed to prove that he issued blank cheque under Ex.P.1 to the complainant towards debt of Rs.1 lakh and he subsequently, discharged the debt of Rs.1 lakh to the complainant, itself is not proved apart from his demand for return of Ex.P.1 cheque after discharge of debt of Rs.1 lakh is also not at all established and proved. When such is the case, the question of defence that the amount under Ex.P.1 is legally not enforceable debt etc., does not arise.

14.Even assume for a moment, that the amount under cheque is not legally enforceable debt and on that ground if the accused is acquitted then how the said legally not enforceable debt amount will become legal amount to the accused. Once the amount is not legally enforceable, it shall go to the Government

Crl.Appeal No. 22 of 2023 9II Addl. Sessions Judge’s Court, Proddatur, dt.26.10.2024.

itself but not to the accused. So that even if the accused established and proved or the complainant failed to prove that the amount under cheque was not legally enforceable debt still the liability of the accused for his issuance of cheque without having sufcient funds in the account and the dishonour of the cheque, which is an ofence cannot be repudiated or disclaimed or avoided or exempted unless it is established that the cheque i.e., the negotiable instrument not supported by the cash consideration. Thus, once the unforceable or unaccounted amount is found and when the complainant is not entitled or competent for the said amount, similarly, the accused is also not entitled or competent either to utilize or to kept the said amount with any of them except the competent authority, let it be either the Income

Tax Department or the concerned Government authority, who ever they may be.

15.Apart from the above observations, the Judgment of the

Trial court herein is also shows that the Trial court assigned well reasons to its conclusions to fnd the accused is guilty and it does not warrants interference of this court based on the above contended trivial contradictions and omissions by the appellant.

Therefore, the Judgment of the Trial court is liable to be confrmed and the appeal is liable to be dismissed.

In the result, the appeal is dismissed by confrming the judgment of the trial Court in C.C.No.411/2017 dt. 30.01.2023 on the fle of the Principal Junior Civil Judge’s Court, Proddatur rendered by the

Principal Junior Civil Judge, Proddatur. The trial Court is directed to

10 secure the presence of accused and commit him to prison as per it’s judgment, after expiry of appeal time.

Dictated to the Typist, corrected and pronounced by me in the

open court this the 26th day of October, 2024.

Sd/- G.S.Ramesh Kumar

II Additional District Judge,

Kadapa at Proddatur.

Copy to the Principal Junior Civil Judge’s Court, Proddatur.