Smt. G.sunitha

IN THE COURT OF III METROPOLITAN MAGISTRATE AT VISAKHAPATNAM

PRESENT: SMT. G. SUNITHA, B.COM., LL.B.,

III METROPOLITAN MAGISTRATE.

VISAKHAPATNAM

FRIDAY, THE 29th DAY OF JUNE, 2012

C.C.694/2007

This case coming on 26-06-2012 for final hearing before me in the presence of learned A.P.P. Smt. Chiranjeevi Kumari for the state- complainant and of Sri S.JOGA RAO, Advocate for the accused and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

a.The Serial No. of the case:C.C.No.694/2007 b.The date of offence:10/03/06 c.The name of the complainant:State represented by the InspectorofPolice, Kancharapalem Police Station, Visakhapatnam city. d.The name of the accused: Poram Lakshmi Naidu S/o Thavitinaidu, aged 36 years, Kapu, Doing the medical practice at the D.No.36­92­253/C, Chittinaidu Clinic, Burma Camp, Kancharapalem, Visakhapatnam R/o D.No.40­1­24/149, Madhusudhan Nagar, Srinivasanagar, Visakhapatnam.

e.The offence complained of:Punishableu/sec.419,420, 465,468, 469 and 471 of Indian Penal Code. f.The plea of the accused & his :Pleaded not guilty examination, if any

1.The Inspector of Police, Kancharapalem Police station filed charge sheet against accused for the offence under sections 419, 420, 465,468, 469 and 471 of Indian Penal Code with the following allegations:

2.That the accused studied upto Intermediate, he worked as an

Assistant in a clinic and learnt to issue of injections and some medicines.

He came down to Visakhapatnam from Srikakulam district and met his friend late Gavara Sreenu and secured some false medical certificates as

RMP, PMP, MBBS etc. and opened Chittinaidu clinic at Burma Camp and practicing medicine and giving medicines to the innocent public who were approaching him. He is also giving medical certificates and death certificate by using false stamps as Doctor P.L. Naidu, “Municipal 2 corporation, Visakhapatnam” and there by cheating the public, earning money by using fake, forged certificates etc., he also impersonated as a private medical practitioner with a degree of MBBS and also cheating the public. On 10.03.2006 at 9.00 P.M. on reliable information P.W.9 accompanied by P.W.1 and L.W.2 P.Ramunaidu conducted raid on

Chettinaidu clinic of the accused situated at Burma camp, Visakhapatnam and seized I.V.sets, belongs to the T.B., Hospital Visakhapatnam, Medical certificates issued in favour of M.Raghavendrarao, M.Kamal Kumar, and death certificate issued in the name of Jerropothula Thammayya, Rubber stamps, blank medical certificates, a letter head in the name of Dr. P.L.

Naidu, Municipal Corporation, Visakhapatnam and also Pamphlets, a medical certificate with Roll No.1153 issued by Institute of Public health and Hygien New Delhi in the name of Poram Lakshmi Naidu, another medical certificate issued by National Medical college, Umarkota as MBBS (H) in the name of Poram Lakshmi Naidu, another medical certificate issued by counsel of Alternative systems and medicines West Bengal, Indo

Alloopathi Certificate issued in the name of Poram Lakshmi naidu, a rubber stamp inscribed as Chetti Clinic Dr.P.L.Naidu, MBBS Reg.No.10049, another rubber stamp as Chittinaidu clinic Burma camp, Srinivasanagar. P.W.9 prepared a mediators report in the presence of P.W.1 and L.W.2 P.Ramu naidu and seized the same under the cover of mediators report and recorded the confessional statement of the accused. On 10.03.2006 P.W.5 registered the mediators report as a case in Cr.No.135/06 under section 419, 420, 465,468, 469 and 471 of Indian Penal Code. During the course of investigation P.W.8 Sub Inspector of Police visited the scene of offence, seized some more empty books, forms, medical certificates etc., in the presence of mediator, arrested the accused and produced him before the court for remand. L.W.13 Inspector of Police took up further investigation and after verification of Institution at Culcutta. After completion of investigation L.W.13 filed charge sheet against the accused.

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3.Cognizance of offence has taken under sections 419, 420, 465,468, 469 and 471 of Indian Penal Code against the accused and the copies of documents were furnished to them as required under section 207 of Cr.P.C.

The accused were examined under section 239 of Cr.P.C. and charge was framed for the punishable offence under sections 419, 420, 465,468, 469 and 471 of Indian Penal Code against the accused and the same was read over and explained to him in Telugu for which he denied, pleaded not guilty and claimed to be tried.

4.To prove the case of the prosecution P.W.1 to P.W.9 was examined and marked Ex.P.1 to P.21. After closure of the prosecution evidence the accused was examined under section 313 of Cr.P.C. All the incriminating material appearing against the accused was put to him and he denied the same and reported no defence evidence.

5.Heard both sides.

6.Now the Point for consideration is:

Whether the conduct of accused comes under perview of Section 419, 420, 465,468, 469 and 471 of Indian Penal Code and whether the prosecution proved the guilt of accused beyond all reasonable doubt?

7. The Learned counsel for the accused contended that there is no corroborative evidence to prove the conduct of the accused. P.Ws.1 and 2 did not support the case of prosecution. Hence, accused is entitled for acquittal.

8. POINT :I have perused the total record consisting oral and documents. P.W.1 and P.W.2 i.e. mediators did not support the case of prosecution and they stated that on 10.03.2006 police called him to police station and shown the accused and some medicines, stated that he is doing false practice as Doctor and obtained their signatures on the mediators report, they do not know the contents under Ex.P.1 and their signatures were marked as Ex.P.2 and P.3.

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9. P.W.3 deposed that he led out his house to accused for a period 15 years to run a clinic and he stated to him that accused are a Doctor and accused run the clinic under the name and style of “Chittinaidu Clinic”. He further deposed that on 10.03.2006 he came to know that police raided on the clinic of accused and arrested the accused as he is not original Doctor

In the cross examination he stated that he do not have personal knowledge about the accused, his residence was situated behind the shop,

10. P.W.4 deposed that he had a shop beside the clinic of accused and accused run the clinic under the name and style of “Chittinaidu Clinic”. He further deposed that accused used to treat patients as a Doctor and after some days police arrested accused for which accused is running Clinic without having any Doctor Degree. In the cross examination he stated that he is running Shamiyana shop and it is on his father's name, his father used to work as Constable, he do not know personally which patient were going to the clinic of accused.

11. P.W.5 deposed that on 10.03.2006 Task Force Police produced the accused along with documents under a cover of mediators report, basing on the same he registered a case as in Cr. No: 135/06, U/S 419,420,465,468,469 and 471 of Indian Penal Code, and First Information

Report was marked as Ex.P.4. In the cross examination he stated that he has not made any endorsement on the mediators report relating to the receiving of other documents.

12. PW.6 deposed that LW.13, S. Venkatarao deputed him to go

Calcutta, Tangra area and to enquire whether Culcutta medical Society was in exist or not, for which he went to Tangra area Police Station and enquired about Medical Society but he found one residential house on the name of Bapi House but not on the name of medical society. He further deposed that he also enquired in neighbouring areas but not found any medical society and confirmed that said Calcutta Medical Institute was not there and submitted his report to his Inspector, his report was marked as 5

Ex.P.6. In the cross examination he stated that he was deputed on pass port to go to culcutta, he returned the said passport along with his report, there is no other documentary proof except his report, he has not applied for he written orders by the corporation, he has not mentioned on which date he went to Culcutta to enquire.

13.PW.7 deposed that she know the accused who used to reside in her brother's house as a tenant, used to run a clinic under the name and style of “Chittinaidu Clinic” and used to treat patients., herself and others in that area used to come to accused's clinic for their treatment. She further deposed that in the month of March, 2006 police arrested the accused as he is not any Doctor Degree and taken away all the articles of accused clinic. In the cross examination he stated that she has not handed over any medical prescriptions to the police which are issued to her by the accused.

14. P.W.8 deposed that on 11.03.2006 he took up investigation and he arrested accused and seized the equipment of accused's clinic in the presence of mediators. He further deposed that he also seized long note books, prescriptions issued by the accused and other items from the clinic of accused and also seized Doctor Degree of accused, seizure list also prepared under Ex.P.8, he examined the witnesses and recorded their statements, thereafter he went to Police station along with accused and mediators and deputed PW.6 to New Delhi, West Bengal to search whether such Medical Institute was existed or not. He further deposed that Income and expenditure note book, Delux account note book , medical certificate book, receipts, medical certificates on the name of accused, envelops of accused medical lab and 6 accused medical lab reports, medical certificates issued to one V.Venkateswarulu, Employment card of accused, two prescription half used books, letter head, blank medical certificate book, and those were marked as Ex. P.8 to P.20 were seized by him and he also prepared rough sketch. He further deposed that on 10.03.2006 his 6

Inspector of Police endorsed him the First Information report for investigation, on the next day he went to the scene of offence, secured the mediators, he has not obtained the signatures of mediators on the seized documents and he has also not signed on the same, Ex.P.11 and P.19 medical certificate books name of the accused not mentioned.

15. P.W.9 Inspector of Police deposed that on 10.03.2006 on receiving information, he secured mediators and conducted raid on accused clinic, on questioning accused confessed that accused is practicing medicine without any valid certificate, on questioning about IV sets, accused replied that those were committed theft by one Sankar who is working in DM & HO office and accused purchased the same for half rate. He further deposed also found fake medical, death certificates. On demand you could not able to produce valid MBBS certificate which you are using. Ex. P.9 to 19 are seized from you under the cover of mediators report.

16.It is the case of prosecution that the accused fabricated the medical certificate by forging the signatures prepared false medical certificates, inpersonated him as Doctor to the Public and there by cheated the Public.

prosecution P.W.1 to P.W.9. Out of which P.W.1 and P.W.2 who are the independent mediators at the time of arrest and seizure of crime property did not support the case of prosecution but only their signatures were marked as Ex.P.1 to P.3 on Ex.P.5, P.8 and P.21.

17.Coming to the evidence of direct eye witnesses. Prosecution also examined independent witnesses to prove the guilt of the accused. P.W.3 who deposed that he know the accused, he let out his house to the accused for a period of 15 years to run a clinic as accused stated him that he was Doctor and patients used to come to the clinic of accused to cure their health problems. He further stated that accused run the clinic under the name and style of “Chittinaidu Clinic” , he came to know on 10-03-2006 police arrested the accused. P.W.4 also deposed that he know the accused since 8 years and he is having tent house beside the clinic of accused, accused used to run a clinic under the name and style of Chittinaidu Clinic 7 by treating the patients as a Doctor and after some period police arrested the accused as the accused was running clinic without having any Doctor degree. P.W.7 deposed that she know the accused who used to reside in her brother's house as a tenant by running a clinic under the name and style of Chittinaidu Clinic and used to treat the patients. She further deposed that she and other ill health persons used to go to the clinic of accused and in the month of March 2006 police came to the shop of accused and taken way all the articles, arrested the accused as he has not having any Doctor degree. In the cross examination of these three witnesses nothing was elicited in favour of the accused and though P.Ws.3 and 4 stated that they have not personally observed at the time of giving treatment, it will not helpful to the accused. So also P.W.7 clearly stated in her evidence that she and other locality people used to go to the clinic of accused for treatment.

18.Coming to the next aspect P.W.6 deposed that L.W.13 S.Venkata

Rao, Inspector of police deputed him to go to Calcutta, Tangra area and to inquire whether Calcutta Medical society was in existence there or not by handing over the photocopies of medical certificates seized from the accused and which contains the name of accused, for which he went to

Tangra area Police Station, inquired about the same with the assistance of local police, they found one residential house at the address mentioned in the name of medical certificates in spite of medical society. He further deposed that he also enquired in neighbouring areas but he has not found any Calcutta medical society , Tangra area corporation, 57th ward authorities also confirmed that the Calcutta medical Institute was not there. He further submitted that he came back and submitted his report to his Inspector of Police and his report was marked as Ex.P.6, carbon copy of letter addressed to the Tangra Police Station was marked as Ex.P.7 to show that he went to Tangra Police station, Calcutta. In the cross examination nothing was elicited in favour of the accused. It shows that the medical certificate which was seized from the possession of accused has not issued by any medical society and as per the prosecution version 8 accused fabricated the medical certificate to claim Doctor Degree and acted as Doctor. Accused also fails to elicit any evidence in favour of him to show that he obtained medical degree from the competent authority.

19. Coming to the next aspect of seizure in this case, P.W.9 deposed that on credible information he went to the clinic of accused along with mediators P.W.1 and L.W.2 Ramunaidu seized the case property under

Ex.P.5 mediators report. In the cross examination he stated that he has not secured the mediators near by the scene, he has not obtained the signatures on the documents and denied the suggestion that he has not seized any material. P.W.8 another Investigating Officer deposed that he took up investigation on 11-03-2006, secured the mediators P.W.2 and

L.W.2 Ramunaidu proceeded to the clinic of accused along with accused found prescription books, medical certificates, medical reports, registers and there seized, Ex.P.9 to Ex.P.19 under the cover of Ex.P.21 mediators report.

20. Coming to the next aspect P.W.2 who acted as mediators at the time of arrest and seizure of Ex. P.9 to 19 not supported the prosecution of case but PW.7 who is independent witness clearly deposed that police came to the clinic of accused, arrested the accused and taken away the documents. As per the evidence of PWs. 8 and 9 both of they seized Ex.

P.9 to 19 but as per the Ex. P.5 Medical report on 10.01.2006, PW.9 seized the all incriminating documents from the possession of accused in the presence of mediators. For the mistake committed by the

Investigating Officer total case will not be thrown out, though there are defects in the evidence of Investigating Officer. Nature and gravity of alleged offence is grievous. As per the prosecution version touched with lifes of human being. Hence, conduct of accused though any injury has not been occurred to any of the public nature of offence has to be taken into consideration. Giving life to the human being is very difficult that causing loss to the human body.

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21.Ruling position about the aspect of seizure, there are two

judgements of Honourble Supreme Court and High Court of A.P. In (1)

Surendar singh Vs. State of Haryana in 2006 SSC (9) 247. In this case

Honourable Supreme Court held that “ with regard to Pws. 3 and 4 panch

witnesses being turned hostile, this contention was also will consider by the trial court and Hon'ble High Court. And both the courts held that their statements do not effect the material of the prosecution story. Pws. 3 and 4 stated that pistol or cartridge or currency notes mentioned in panchanama were not recovered in their presence. They, however, admitted their signatures over panchanama and also stated that therefore, both the courts correctly held that property was recovered int he presence of Pws. 3 and 4 and over panch witnesses”. It is also held that it is an archaic notion that actions of the police officer should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature. Hence, when a police officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable”. In State of Andhra

Pradesh Vs. M. Nageswara Rao, M. Narayana, 2007 part-3 ALT Crl. 272, in this case it was held by Hon'ble High Court of A.P. “simply because mediators turned hostile recovery cannot be disbelieved and if the

Investigating Officer also categorically deposed that he seized property in the presence of mediators, there is no rule or principal to held that the evidence of Investigating Officer cannot be relied upon unless it is corroborated”.

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22. In these circumstances strict rules of evidence though not available in the record, total evidence has to be scrutinized by corroborating each witness evidence. Hence though mediators not supported the arrest and seizure, as per the evidence of P.W.8,9 Investigating Officers and as per the evidence of eye witness P.W.7 accused was arrested and documents were seized from him.

23.Coming to the next aspect this court perused the total documents which were seized from the possession of the accused. In Ex. P.9 name of

Chittinaidu Medical Lab was mentioned and in that book some of the patients, person’s names were mentioned, in Ex. P.10 name of the accused was mentioned and description of some deceases and medicines was mentioned. Ex. P.11 is blank medical receipts book, Ex. P.12 several receipts which contained the name of Pavan Diagnostic Centre issued on the name of Chittinaidu Medical Lab and in the bunch of Ex. P.12, visiting card of Chittinaidu Clinic was there by mentioning the Doctor name as

P.L. Naidu, MBBS, NMC along with Ex. P.12, two medical receipts were also contained by mentioned the Doctor’ s name as P.L. Naidu, MBBS,

HNMO. Ex. P.13 are three medical certificates issued on the name of the accused, first certificate was issued by the counsel of alternative systems of medicines, West Bengal, Calcutta to run Indo Allopathi treatment.

PW.6 deputed to ascertain the genuinity of certificate and deposed that no such institution was existed at the given address. Ex. P.14 are envelops printed on the name of Chittinaidu Medical Lab along with blood reports. Ex. P.15 medical certificate issued by the accused to one E.

Venkateswarulu. Ex. P.17 are two used empty prescription books on the name of Chittinaidu Clinic, Ex. P.18 is a book printed by mentioning several tests and on the name of Chittinaidu Medical lab, Ex. P.19 is blank medical certificates book. As per these documents it clearly shows that the accused run a clinic to treat the patients. As per the prosecution version though accused has not valid medical degree to treat the public, 11 he, used false medical certificates showing the same to the public, did the medical practice. Admittedly, no victim was given any report against the accused that they suffered from ill health for the treatment of accused. But though anyone had not reported against the accused as he is not a competent person to treat the patients by possessing false

M.B.B.S. degree. The accused also stated in his 313 Cr. P.C. examination he did diploma course, he had not obtained MBBS Degree by the competent authorities to treat the patients by printing his degree as

MBBS. As per the evidences and discussions mentioned above, the accused run clinic by claiming degree of MBBS and treated the patients.

This court do not found any benefit of doubt in favour of the accused.

24. In Gangadhar Behera Vs State of Orissa, (2002 (2) ALD (Crl) 794 SC), Hon’ble Supreme court held that exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defense. Justice cannot be made sterile on the plea that it is between to let hundred guilty escape than punish an innocent. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon and common sense.

It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws because inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. Prosecution is not required to meet any and every hypothesis put forward by the accused. Vague hunches cannot take place of judicial evaluation. “A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties.

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25.As per the evidences and discussions mentioned above, prosecution proved the guilt of the accused for the offence under section 420, 471 of Indian Penal Code and charge under sections 419, 465,468, 469 fails. Hence, this point is accordingly answered in favour of the prosecution against the accused.

26. In the result, Accused found guilty for the offence under section 420, 471 of Indian penal Code and accordingly he is convicted under section 248 (2) of Criminal Procedure Code. The bail bonds of the accused and sureties shall stands cancelled..

Dictated to Personal Assistant, transcribed by her,

pronounced by me in the open court 29th day of June, 2012.

III METROPOLITAN MAGISTRATE,

VISAKHAPATNAM

Heard the accused on quantum of sentence accused submitted that he is having wife and children, he met with an accident sustained injuries, got operated and pray to take lenient view to impose sentence. I do not inclined to invoke the Provisions of Probation of Offenders Act. Basing on the nature of gravity of offence.

In the result the accused is sentenced to suffer Rigorous Imprisonment for a period of Two years for the offence under section 420 of Indian Penal

Code and also sentenced to pay fine amount of Rs.1,000/- and in default of payment of fine amount he sentenced to suffer Simple imprisonment for a period of three months. The accused further sentenced to suffer Rigorous

Imprisonment for a period of one year for the offence under section 471 of

Indian Penal code. Both the offences shall run concurrently. The remand period shall be set off under section 428 of Cr.P.C. Accused is appraised about right of appeal.

III Metropolitan Magistrate Visakhapatnam.

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APPENDIX OF EVIDENCE

WITNESSES EXAMINED:

FOR PROSECUTION: FOR DEFENCE:

P.W.1: P.Ramana --NONE- P.W.2: M.K. Kona babu P.W.3: P.Gopi P.W.4: Johny Bhaig P.W.5: P.V.R.S.S.S.M.V.R.Varma P.W.6: M.Adinarayana P.W.7:P.Hemalatha P.W.8:Sanjeeva Rao P.W.9: M.V.Anand

EXHIBITS MARKED:

FOR PROSECUTION:

Ex.P-1: Signature on Mediators report Ex.P-2: Signatures mediators report Ex.P-3: Signatures on search list Ex.P-4: Original First Information Report Ex.P-5: Mediators report Ex.P-6: Report of P.W.6 Ex.P-7: Carbon copy of letter of Thangar PS Ex.P-8: Search list Ex.P-9: Income expenditure note book Ex.P-10: Delux note book Pg.No.1 to 6 Ex.P.11: Medical Certificates book Ex.P-12: Seven receipts Pavan Diagnostic Centre Ex.P-13: Three Medical Certificates Ex.P-14: Ten envelops and six lab reports Ex.P-15: Medical certificate of Venkateswarulu Ex.P-16: Employment card of accused Ex.P-17: Two half used prescription books Ex.P-18: Letter heads two books Ex.P-19: Blank Medical certificate book Ex.P-20: Rough sketch of the scene of offence Ex.P-21: Rough sketch of the scene of offence

FOR DEFENCE:

-None-

M.Os. Marked:

-Nil-

III METROPOLITAN MAGISTRATE,

VISAKHAPATNAM

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CALENDER AND JUDGMENT

DISTRICT :: VISAKHAPATNAM

IN THE COURT OF III METROPOLITAN MAGISTRATE, VISAKHAPATNAM

C.C.NO.694 /2007

Date of offence:25.01.2001

Date of release on bail: 14-03-2006

Date of Filing: 28-11-2007 Date of Apprehension: 10-07-2008 Date of commencement of trial: 20-09-2011 Date of Close of trial: 27-06-2012 Date of Sentence or Order: 29-06-2012 Explanation for delay: Delay due to non-production of accused and witnesses. No witness is detained beyond three days. C.C.No.694/2007on the file of III Metropolitan Magistrate, Visakhapatnam

The name of the complainant :State represented by the Inspector of Police, KancharapalemPoliceStation, Visakhapatnam city. The Name of the accused :Poram Lakshmi Naidu S/o Thavitinaidu, aged 36  Parentage & Residence years, Kapu, Doing the medical practice at the D.No.36­92­253/C, Chittinaidu Clinic, Burma Camp, Kancharapalem, Visakhapatnam R/o D.No.40­1­24/149, Madhusudhan Nagar, Srinivasanagar, Visakhapatnam.

Offences:Punishable u/sec.419, 420, 465,468, 469 and 471 of Indian Penal Code. Finding:Accused found guilty

Sentence: In the result, Accused found guilty for the offence under section 420, 471 of Indian penal Code and accordingly he is convicted under section 248 (2) of Criminal Procedure Code. The bail bonds of the accused and sureties shall stands cancelled. In the result the accused is sentenced to suffer Rigorous Imprisonment for a period of Two years for the offence under section 420 of Indian Penal Code and also sentenced to pay fine amount of Rs.1,000/- and in default of payment of fine amount he sentenced to suffer Simple imprisonment for a period of three months. The accused further sentenced to suffer Rigorous Imprisonment for a period of one year for the offence under section 471 of Indian Penal code. Both the offences shall run concurrently. The remand period shall be set off under section 428 of Cr.P.C. Accused is appraised about right of appeal.

III METROPOLITAN MAGISTRATE,

VISAKHAPATNAM

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IN THE COURT OF III METROPOLITAN MAGISTRATE AT VISAKHAPATNAM

PRESENT: SMT. G. SUNITHA, B.COM., LL.B.,

III METROPOLITAN MAGISTRATE.

VISAKHAPATNAM

THURSDAY THE 28th DAY OF JUNE, 2012

C.C. 736/2008

This case coming on 26-06-2012 for final hearing before me in the presence of learned A.P.P. Chiranjeevi Kumari for the state-complainant and of Sri V.S.V.Prasad, Advocate for the accused and having stood over for consideration till this day, this court delivered the following:

JUDGMENT

a.The Serial No. of the case:C.C.No.736/2008 b.The date of offence:20-09-2008 c.The name of the complainant:State represented by the Sub Inspector of Police, Pendurthy Police Station, Visakhapatnam city. d.The name of the accused:A-1:Seseety Annapurna, W/o Sankara Rao, 36years, Padmasali by Caste, R/o D.No.1- 155,Ramalayamveedhi, Vepagunta, Pendurthy. A-2: Seseety Uma @ Uma Maheswari D/o Sankara Rao, 20 years, Padmasali by caste, R/o D.No.1-155, Ramalayam Veedhi, Vepagunta, Pendurthy. A-3: Seseety Kala @ Kanaka D/o Sankara Rao , 19 years, Padmasali by Caste, R/o D.No.1- 155,Ramalayamveedhi, Vepagunta, Pendurthy. e.The offence complained of:Punishable u/sec. 324 r/w 34 of Indian Penal Code. f.The plea of the accused & his :Pleaded not guilty examination, if any

1.The Sub Inspector of Police, Pendurthy Police Station,

Visakhapatnam City filed charge sheet against the accused for an offence punishable under section 324 r/w 34 of Indian Penal Code with the following allegations:

2.That on 20-09-2008 P.W.1 is the father in law of A1 and L.W.2 S.

Atchayamma is the mother in law of A1, A2 and A3 are the children of

A1, there are sharing of house site disputes between the P.W.1 and A1, while P.W.1 left from the house, A1 to A3 picked up arguments with L.W.2

S. Atchayamma and abused her, thereafter P.W.1 came to know the 2 altercation between the Accused and L.W.2, P.W.1 questioned A1 to A3 for which the accused grew wild and A1 beat P.W.1 with a stick on his head and caused injury and A2 and A3 beat L.W.2 S. Atchayamma with hands on her back. P.W.2 shifted the injured i.e. P.W.1 and his wife L.W.2

S. Atchayamma to S.R. Hospital for treatment. On receipt of Medico

Legal case intimation P.W.3 proceeded to S.R. Hospital and recorded the statement of P.W.1 and registered the same as a case in Cr.No.352/08, under section 324 r/w 34 of Indian Penal Code, P.W.3 examined the witnesses, recorded their statements, seized the sticks which were used in the commission of offence, L.W.6 Sub Inspector of Police verified the investigation of P.W.3, arrested the accused on 24.10.2008 and after receipt of wound certificate, L.W.6 filed charge sheet.

3.Case was taken on file under sections 324 r/w 34 of Indian Penal

Code. After appearance of the accused copies of documents were furnished to the accused as required under section 207 of Cr.P.C. The accused were examined under section 239 of Cr.P.C. Charge was framed for the Offence Under Section 324 r/w 34 of Indian Penal Code and the same was read over and explained to them in Telugu for which they denied, pleaded not guilty and claimed to be tried.

4. To prove the case of the prosecution P.Ws.1 to 4 were examined and marked Ex.P.1 to P.3. After closure of evidence of prosecution the accused was examined under section 313 of Cr.P.C, all the incriminating material appearing against the accused was put to them and they denied the same and reported no defense evidence.

5.Heard both sides.

6. Now the point for consideration is:

Whether the conduct of accused comes under the perview of

Sections 324 r/w 34 of Indian Penal Code and whether the prosecution proved the guilt of accused beyond all reasonable doubt?

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7.Learned counsel for the accused contended that there is no sufficient evidence to believe the version of prosecution, .

8.P.W.1 who is the defacto complainant cum injured. P.W.2 son in law of P.W.1, P.W.3 is the Head Constable of Police who registered the case

P.W.4 Doctor who treated the P.W.1 and L.W.2.

9.Ex.P.1 is the Report of P.W.1, Ex.P.2 is the Original First Information

Report, Ex.P.3 is the crime detailed form, Ex.P.4 is the wound certificate.

10.Point : I have perused the total evidence consisting oral and documents. P.W.1 deposed that A1, A2 and A3 are his daughter – in - law and grand daughters, accused also residing in the neighbouring house, the said house given by him to them, he is residing in his own house. He further deposed that on 20.09.2008 at about 6.00 A.M. he went to Kasimkota and came back at about 10.30 to 11.00 A.M, on the same day at that time he found that his wife L.W.2 Atchayamma was weeping and on enquiry she replied that as A1 to A3 abused and altercated with her, then he questioned A1 to A3 why they abused and altercated with his wife as she was old lady, then A1 grew wild and beat he and his wife with sticks all over the body, he and his wife were sustained injuries, then they went to police station and gave report to police, from there police referred them to hospital he gave statement to police under Ex.P.1. In the cross examination he stated that he is not doing any work and depended on the mercy of daughter and son in law, he purchased the house where presently he is residing, there was no registered document but only mentioned on papers, the distance between his house and accused house is about 20 to 30 feet, he cannot say in how many square yards of his house.

11.P.W.2 deposed that P.W.1 is his father in law, L.W.2 Atchayamma is his mother-in-law, in the year 2008 while he was coming from his house to Vepagunta junction and found that his mother in law was coming by weeping, he asked her what was happened, she stated by weeping that

A1 to A3 beat P.W.1, immediately he went to their house and found P.W.1 with bleeding injury to his head, then he sprinkled water on the face of 4

P.W.1 and then he informed that as he asked accused as why he abused

L.W.2 Atchayamma, P.W.1 and L.W.2 went to P.S. And there P.W.1 gave report to police, as P.W.1 sustained bleeding injury , they shifted the

P.W.1 to Sharma Hospital, he has not personally witnessed the incident.

In the cross examination he stated that he has not stated before police that at first they went to Sharma Hospital.

12. P.W.3 deposed that on 20.09.2008 at about 8.30 PM they received

MLC information from Sharma Hospital, immediately he went to there and and recorded the statement of P.W.1 under Ex.P.1, the same was registered as First Information report under Ex.P.2, thereafter he visited the scene of offence, prepared crime details form under Ex.P.3, thereafter he handed over the case file to Sub Inspector of police i.e.L.W.6 Appa

Rao, he arrested accused and after receipt of wound certificate he filed charge sheet. In the cross examination he stated that on the same date of incident at night he visited the scene of offence, he do not remember whether on the date of incident it was rainy or not, scene of offence is situated at residential locality, as independent were not available he was not examined any one, he do not know whether A1 gave report against

P.W.1 stating that he altercated with A1, receipt show to him issued by their station it is Ex.D.1.

13.P.W.4 Doctor deposed that on 20.09.2008 PW.1 came to his hospital and he examined him and he opined the injuries are simple in nature, he issued wound certificate under Ex.P.4 and P.5. In the cross examination he stated that might have possible due to fell on the ground.

14.It is the case of prosecution that all the accused abused L.W.2

Atchayamma wife of P.W.1 and beat P.W.1 and his wife with sticks for which P.W.1 and L.W.2 Atchayamma sustained injuries. To prove the case of prosecution P.Ws.1 to 4 were examined, P.W.1 who is none other than father-in-law of A1 and Grand father of A2, A3 deposed that as A1 to

A3 abused his wife when he asked A1 to A3, they beat P.W.1 and his wife

L.W.2 Atchayamma with sticks for which they sustained injuries, 5 thereafter went to police station from there police referred them to hospital. In the cross examination he stated that he purchased the house presently where he is residing, distance between his house and accused house is about 20 to 30 feet, he has not sufficient vision and denied the suggestion of A1 to A3 abused his wife and beat them. He further stated first he went to Police station from there they went to Sharma Hospital.

P.W.4 Doctor who treated the P.W.1 and L.W.2 Atchayamma stated that he treated for their injuries and found abrasion and contusion on the fore head of P.W.1 and contusion injuries of lumbar region and right shoulder of L.W.2 Atchayamma. He also deposed that he has also issued wound certificates of Ex.P.4 and P.5. In the cross examination he stated that those injuries are might have possible due to fell on the ground and denied the suggestion that he has not treated the injured. P.W.2 who is son-in-law of P.W.1 deposed that after came to know about the incident through L.W.2 Atchayamma, he went to the scene of offence and found the P.W.1 with injury on head, though his evidence is hearsay he deposed that he saw the P.W.1 with injuries.

15.Coming to the next aspect P.W.1 is aged about 80 years none other than father in law of A1 and grand father of A2 and A3. He deposed that he gave house to the accused. Admittedly there are no other eye witness at the place of offence, and it was between the house of P.W.1 and accused. L.W.2 Atchayamma who is the other injured died during the pendency of case. Because of the non examination of independent witnesses total case shall not be thrown out. Solitary injured witness evidence can also taken into consideration, if it inspires the confidence of the court. P.W.1 is aged person sustained injuries and his injuries were proved through P.W.4 and Ex.P.4. As per section 134 of Indian

Evidence Act “ Quality is needed rather than quantity”. This court also observed that even the during the course of trial while P.W.1 is deposing evidence by way of too much talking because of his old age A3 was laughing while he was giving evidence and there is no repentance in her face.

6

16.Coming to the next aspect preference should be given to medical treatment and discrepancies in the evidence of P.W.1 were thrown out as he is old age about 80 years and he deposed evidence though in court in a normal verbatic manner. Learned counsel for the accused contended that A1 also gave report against P.W.1 and his son-in-law and got marked receipt as Ex.D.1 through P.W.3. P.W.1 admitted the report given by the

A1 and he volunteers that the said case was compromised prior to this incident. Ex.D.1 will not helpful to the accused to prove their innocence.

17.Learned counsel for the accused contended that P.W.1 has not identified the stick shown to him which was seized by the police as per the prosecution version. In all the cases it is not necessary to seize the crime property and non identification by the P.W.1 shows that he speaks truth and if really case was planted by him, he might be identified the stick. So also P.W.1 is non other than grand father of A2, A3 and father in law of A1, they have to minimum respect to the old aged P.W.1. In spite of that altercated with L.W.2 Atchayamma and beat P.W.1. Hence this court not found any benefit of doubt in favour of the accused.

18.In Gangadhar Behera Vs State of Orissa, (2002 (2) ALD (Crl) 794 SC), Hon’ble Supreme court held that exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defense. Justice cannot be made sterile on the plea that it is between to let hundred guilty escape than punish an innocent. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon and common sense.

It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws because inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. Prosecution is not required to meet any and every hypothesis put forward by the accused. Vague hunches cannot take place of judicial 7 evaluation. “A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties.

19.As per the evidences and discussions mentioned above prosecution proves the guilt of A1 to A3 under section 324 r/w 34 of Indian Penal

Code, and hence, charge under section 324 r/w 34 of Indian Penal Code proves against the accused. This point is accordingly answered in favour of the prosecution against the accused.

20. In the result , A1 to A3 found guilty for the offence under section 324 r/w 34 of Indian Penal Code. Accordingly they are convicted under section 248 (2) of Criminal Procedure Code. Unmarked property i.e. stick shall be destroyed after appeal time is over.

Dictated to Personal Assistant, Transcribed by her, corrected and pronounced 

by me in open court, this the 28th day of June, 2012.

 III METROPOLITAN MAGISTRATE,

VISAKHAPATNAM

Heard the accused on quantum of sentence A1 submitted that she is aged about 40 years she is only look after the welfare of female children i.e. A2 and A3 they are not involved in any other offences, and prays to take a lenient view. A2 and A3 also submitted that they are not involved in any similar types of offences and prays take lenient view to impose the sentence. I do not inclined to invoke the Provisions of

Probation of Offenders Act. But basing on the nature and gravity of offence in favour of the relationship between the both parties duly admonished the accused not repeat such things.

In the result, the A1 to A3 are sentenced to pay fine amount of

Rs.200/- each for the offence under section 324 r/w 34 of Indian Penal

Code and in default of payment of fine amount they are sentenced to suffer Simple Imprisonment for a period ofOne month and in default of payment of fine amount. The bail bonds of the accused and sureties shall stands cancelled.

III Metropolitan Magistrate Visakhapatnam 8

APPENDIX OF EVIDENCE

WITNESSES EXAMINED:

FOR PROSECUTION: FOR DEFENCE:

P.W.1: S.Suryanarayana -NONE- P.W.2: E.Arjuna Rao P.W.3: E.Rama Krishna P.W.4: Dr.V.S.S. Sarma EXHIBITS MARKED:

FOR PROSECUTION: FOR DEFENCE:

Ex.P.1: Statement of P.W.1 -None- Ex.P.2: Original First Information Report Ex.P.3: Crime details form Ex.P.4: Wound certificate Ex.P.5: Wound certificate

M.Os. Marked:

Nil

III METROPOLITAN MAGISTRATE,

VISAKHAPATNAM

9

CALENDER AND JUDGMENT

DISTRICT :: VISAKHAPATNAM

IN THE COURT OF III METROPOLITAN MAGISTRATE, VISAKHAPATNAM

C.C.NO.736/2008

Date of offence:20-09-2008

Date of release on bail: 24-10-2008

Date of Filing: 31-10-2008

Date of Apprehension: 24-10-2008

Date of commencement of trial: 16-04-2012

Date of Close of trial: 26-06-2012

Date of Sentence or Order: 28-06-2012

Explanation for delay: Delay due to non-appearance of accused and witnesses. No witness is detained beyond three days. C.C.No.736/2008on the file of III Metropolitan Magistrate, Visakhapatnam The name of the complainant :State represented by the Sub Inspector of Police, Pendurthy Police Station, Visakhapatnam city. The Name of the accused :A-1:Seseety Annapurna, W/o Sankara Parentage & ResidenceRao, 36 years, Padmasali by Caste, R/o D.No.1-155,Ramalayamveedhi, Vepagunta, Pendurthy. A-2: Seseety Uma @ Uma Maheswari D/o Sankara Rao, 20 years, Padmasali by caste, R/o D.No.1-155, Ramalayam Veedhi, Vepagunta, Pendurthy. A-3: Seseety Kala @ Kanaka D/o Sankara Rao , 19 years, Padmasali by Caste, R/o D.No.1-155, Ramalayam veedhi, Vepagunta, Pendurthy. Offences:Punishable u/sec. 324 r/w 34 of Indian Penal Code. Finding:Accused found guilty

Sentence: In the result , A1 to A3 found guilty for the offence under section 324 r/w 34 of Indian Penal Code. Accordingly they are convicted under section 248 (2) of Criminal Procedure Code. Unmarked property i.e. stick shall be destroyed after appeal time is over. In the result, the A1 to A3 are sentenced to pay fine amount of Rs.200/- each for the offence under section 324 r/w 34 of Indian Penal Code and in default of payment of fine amount they are sentenced to suffer Simple Imprisonment for a period ofOne month and in default of payment of fine amount. The bail bonds of the accused and sureties shall stands cancelled.

III Metropolitan Magistrate, Visakhapatnam.

10

1

IN THE COURT OF III METROPOLITAN MAGISTRATE AT VISAKHAPATNAM

PRESENT: SMT. G. SUNITHA, B.COM., LL.B.,

III METROPOLITAN MAGISTRATE,

VISAKHAPATNAM.

FRIDAY, THE 29th DAY OF JUNE, 2012

C.C.76/2008

This case coming on 28-06-2012 for final hearing before me in the presence of Sri K.Vijaya Kumar, Advocate for the complainant and Sri K.Hari prasad, Advocate for the accused and having stood over for consideration till this day, this court delivered the following:

JUDGMENT

a.The Serial No. of the case:C.C.No.76/2008 b.The date of offence:10/09/07 c.The name of the complainant: Uppalapati Narendranadh, S/o Gangadhar Rao, Hindu, aged 38 years, Contractor, R/o Door No.8-4-23/1, Marutinagar, Gajuwaka, Visakhapatnam – 530 026. d.The name of the accused: Yellapragada Venkateswara Rao, S/o Gavarraju, Hindu, aged about 40 years, employee in Visakhapatnam Steel plant resident of Qr.No.106 F, Sector IV, Ukkunagaram, Visakhapatnam-530 032. e.The offence complained of:Punishable Under Section 138 of Negotiable Instruments Act. f.The plea of the accused & his :Pleaded not guilty examination, if any

1.This is a private complaint filed by the complainant against the accused for the offence punishable Under section 138 of Negotiable Instruments Act.

2.The brief averments of the complaint are as follows:

That the accused borrowed an amount of Rs.50,000/- from the complainant on 15-08-2005 for his family expenses, the accused executed a demand promissory note in favour of the complainant on the even date agreeing to repay the same together with interest @ 24% per annum and after several demands made by the complainant, the accused issued a cheque for Rs.40,000/- bearing cheque

No.691845, dated 10-09-2007 drawn on State Bank of India, Dwarakanagar Branch,

Visakhapatnam in favour of the complainant towards part payment. The complainant presented the said cheque for collection through his account

Axis Bank Limited, Gajuwaka Branch, Visakhapatnam and the same was returned on 13-10-2007 with an endorsement that “Funds Insufficient”. He further mentioned that on 08-10-2007, he issued a legal notice to the accused 2 and the same was received by the accused, the accused did not pay any amount nor reply. Hence, he filed this complaint.

3.Basing on the available material cognizance was taken for the offence under section 138 of Negotiable Instruments Act against the accused and summons were issued. On appearance of the accused, copies of documents were furnished to him under section 207 Criminal Procedure Code. After accused examined Under Section 251 Cr.P.C. posted the matter for trial.

4.During the trial complainant himself examined as P.W.1. Ex.P.1 to P.5 were marked. Ex.P.1 is decree copy in O.S.277/08 of Junior Civil Judge,

Gajuwaka. Ex.P.2 is the cheque dated 10-09-2007, Ex.P.3 is Cheque return memo, dated 03.10.2007, Ex.P.4 is legal notice dated 08-10-2007, Ex.P.5 is the acknowledgement.

5. After closure of the evidence of complainant, accused was examined under section 313 of Cr.P.C. and he denied the evidence deposed by the complainant and reported no evidence.

6.Heard the counsel for the accused and counsel for the complainant.

7. Now the point for consideration is:

Whether conduct of the accused comes under the per view of

Section 138 of Negotiable Instruments Act and whether the

complainant has proved the case as required under section 138 of NI

Act?

To prove the case of the complainant, he has to prove the following points that:

a) that the Ex.P.2 cheque has drawn by the accused from the account maintained by him and issued to the complainant.

b) that the accused issued Ex.P.2 cheque to discharge the legally enforceable debt covered under Ex.P.2.

3

c) that the Ex.P.2 cheque was dishonoured due to lack of sufficient funds.

d)that the complainant has issued statutory legal notice to accused as required under section 138 of NI.Act

8.Learned counsel for the complainant submitted that there is a legally enforceable debt by the accused to the complainant pronote was already decreed in favour of the complainant and Ex.P.1 is the Decree copy in

O.S.277/08. He further submitted that accused issued Ex.P.2 cheque towards

discharge of legally enforceable debt covered under Ex.P.1, issuing of demand legal notice also creates jurisdiction, relative of accused who is residing in the same house of accused received the statutory legal notice and hence the complainant has proved the guilt of accused.

9.Learned counsel for the accused filed written arguments mentioning that statutory legal notice has not served on the accused. Complainant fabricated the signatures on Ex.P.5 to show that notice was served on the accused as required under section 138 of Negotiable Instrument Act. He further mentioned that this court has no jurisdiction as neither complainant nor accused were residing within the jurisdiction of this court and both the banks of complainant and accused were not situated within the jurisdiction of this court and prays the court to dismiss the complaint.

10. POINTS ANSWERED:

To prove the case of complainant himself examined as PW.1. PW.1 though his Chief Evidence Affidavit deposed that the accused borrowed an amount of Rs.50,000/- from the complainant and issued Ex. P.2 cheque for

Rs.40,000/- on 10-09-2007 towards part payment, after he presented the said cheque in his account it was returned on 03-10-2007 with an endorsement “Funds Insufficient” he issued legal notice to the accused on 08-10-2007 under Ex. P.4, accused not paid any amount and hence he filed this complaint. Ex. P.1 to 5 were marked though P.W.1. In the cross-examination 4 he stated that he is doing sub contract works for mechanical works, he has licence to do business, prior to filing this case he used to earn money of Rs.10 lakhs per year, he has not obtained license at that time, he is income tax assesse, he gave loan amount to the accused and he is working as en employee in Steel Plant and he is residing in the Steel plant quarters, previously accused used to do Real Estate business, at that time he had acquaintance with him, on 15.08.2005 accused borrowed loan amount from him after execution of pronote, at the time of transaction, he accused , one attestor and scribe were present i.e. Ch.Srikanth Babu scribed the pronote, he demanded the accused to repay the pronote debt, he has not issued any legal notice to repay the pronote amount, on 10-09-2007 accused issued cheque to him for Rs.40,000/- towards part payment, transaction took place at 9.00 A.M.

after cheque was dishonoured he got issued legal notice to the accused in the month of October, 2007 and the notice was received by the accused on 17.10.2007, Ex.P.5 does not contain the signature of the accused, but his family members might have received the legal notice, accused also residing steel plant quarters, Gajuwaka, he is having account in Axis bank which is situated at Gajuwaka and accused is having an account in State bank of India situated at Dwarakanagar, He further stated that there is difference of writing from that of signature and contents in Ex.P.2.

11.On overall scrutinizing the cross examination of P.W.1 it is the defence of the accused statutory legal notice was not served on the accused, Ex.P.5 does not contain the signatures of the accused and the complainant created the jurisdiction of this court by issuing legal notice through his advocate who is residing at Kancharapalem, Visakhapatnam. It is further defence of the accused that in the year 2005 he borrowed an amount of Rs.10,000/- from one T.Ram mohana Rao issued blank signed pronote and cheque for security purpose, after colluded with the said T.Rammohana Rao complainant filed this false complaint.

5

12. Learned counsel for the complainant has filed Judgments of

Hon'ble High Court of Andhra Pradesh in “G.K. Jaya Raman Vs. M/s Nambur

Laboratories and another in 2012 ACD 59 (AP), in this case Hon'ble High court of Andhra Pradesh held that “if the complainant has issued statutory

legal notice to correct address of the accused it is deemed to be

served as per section 27 of General clauses Act” in contra”. Learned counsel for the accused filed Judgment of Hon'ble Supreme Court in M.D.

Thomas Vs. P.S.Jaleel and another in 2010 (2) ALT (Crl.) 95 (SC), in this case

Hon'ble Supreme Court held that

“notice of demand served upon the wife of appellant and not on appellant and therefore, no escape from the conclusion that complainant/ respondent had not complied with the requirement of giving notice in terms of Clause (b) of Proviso to Section 138 of Negotiable Instrument Act”.

13.Learned counsel for the accused filed another judgment of Hon'ble High court in K.Narayana Nayak Vs. M.shivarama Shetty in 2008 Crl. L.J. 3411 in this Hon'ble High Court of Karnataka held that, “notice sent by registered

post as per section 138 (b) should reach in hands of addressee

himself but not to any other persons and acquitted the accused”.

Learned counsel for the accused contended that as statutory legal notice has not served on the accused the complaint is liable to be dismiss. Learned counsel for the accused also filed the judgment of Hon'ble Gauhati High

Court in M/s Fatima Begum Vs. Md. Sajid Alam Chowdhury in 2008 Crl.

L.J.1227 in this case Hon'ble Gauhati High Court held that “presumption

under section 27 of General clauses Act raise presumption and if the

accused, either by entering into witnesses box or by any other

means, denies receipt of such a notice, the presumption would stand

rebutted”. As per the complainant he issued statutory legal notice. But as per the Judgment of Hon'ble Supreme Court the statutory legal notice should be served on the accused himself.

6

14. Coming to the next aspect admittedly either the complainant or the accused are not residing within the jurisdiction of this court, so also either of the banks are not situated within the jurisdiction of this court but residence of the counsel of complainant who issued legal notice he is within the jurisdiction of this court. Learned counsel for the complainant filed judgment of Hon'ble Supreme court in Smt Shamshad Begum Vs. B.Mohammed in 2011

ACD 445 SC, in which Hon'ble Supreme court held that “The offence under

S.138 can be completed only with the concatenation of a number of acts. The acts which are components are as follows:

“1.Drawing of the cheque. 2.Presentation of the cheque to the bank.

3.Returning the cheque unpaid by the drawee bank. 4. Giving notice

in writing to the drawer of the cheque demanding payment of the

cheque amount. 5.Failure of the drawer to make payment within 15

days of the receipt of the notice.” But facts of the case and facts of the case on hand are not one and the same. In the said case the complainant shifted her residence to the place from where she issued legal notice. But in this case complainant not at all residing within the jurisdiction of this court. In

M/s Harman Electronics (P) Ltd. & Another Vs. M/s National

Panasonic India Ltd., AIR 2009 SC 1168, Hon'ble supreme court held that “ it is not the place of the issuance of the notice that determines the jurisdiction of the court to file the case under section Negotiable Instrument

Act and the place where the offence has taken place determines the jurisdiction of the court for filing of the complaint under section 138 of

Negotiable Instrument Act and jurisdiction of this court to try a criminal case is governed by provisions of criminal procedure code and not on common law principle. It also held that “A banking institution holding several cheques signed by the same borrower cannot only present the cheque for its encasement at four different places but also may serve notice from four different places so as to enable it to file four complaint cases at four different 7 places and only causes grave harassment to the accused , it is, therefore, necessary in a case of this nature to strike a balance between the right of the complainant and the right of an accused vis-a-vis the provisions of the

Criminal Procedure Code”.

15. Though promissory note was decreed in favour of the complainant requirements under section 138 of Negotiable Instrument Act has to be strictly prove to bring home the guilt of the accused that statutory legal notice was served on the accused.

16.As per the evidences mentioned above as per Ex.P.5 statutory legal notice not personally received by the accused himself. It is also admitted fact that the complainant, accused are not residing within the jurisdiction of this court and neither of the bank was situated within the jurisdiction of this court.

As per the evidences and prosecution mentioned above statutory legal notice has not jurisdiction of this court. Complainant fails to prove the guilt of the accused for the offence under section 138 of Negotiable Instrument Act.

17. In the result Accused is found not guilty for the offence Under Section 138 of Negotiable Instrument Act and he is acquitted Under Section 255 (1) Criminal Procedure Code. The bail bonds of the accused and sureties shall stands cancelled.

Dictated to Personal Assistant, corrected and pronounced by me in open

court, this the 29th day of June, 2012.

III METROPOLITAN MAGISTRATE,

VISAKHAPATNAM

APPENDIX OF EVIDENCE

NO. OF WITNESSES EXAMINED FOR

COMPLAINANT :ACCUSED:

P.W.1: U.Narendranath-None-

DOCUMENTS MARKED FOR

COMPLAINANT:

Ex.P.1: Decree copy in O.S.277/08 of Junior Civil Judge, Gajuwaka Ex.P.2: Cheque dated 10-09-2007 Ex.P.3: Cheque returned memo dated 03-10-2007 Ex.P.4: legal notice dated 08-10-2007 Ex.P.5: Acknowledgement

ACCUSED: -None-

III METROPOLITAN MAGISTRATE

VISAKHAPATNAM

8

CALENDER AND JUDGMENT

DISTRICT:: VISAKHAPATNAM

THE COURT OF III METROPOLITAN MAGISTRATE AT VISAKHAPATNAM.

C.C. 76/2008

Date of offence:10-09-2007 Date of release on bail: -- Date of filing:28-01-2008 Date of Apprehension :21-04-2008 Date of commencement of trail :22-02-2012 Date of closing of trial :28-06-2012 Date of sentence : 29-06-2012 Explanation for delay:Delay due to non-appearance of accused and complainant. C.C.No.76/2008 on the file of III Metropolitan Magistrate, Visakhapatnam. The name of the complainant: Uppalapati Narendranadh, S/o Gangadhar Rao, Hindu, aged 38 years, Contractor, R/o Door No.8-4-23/1, Marutinagar, Gajuwaka, Visakhapatnam

– 530 026.

The name of the accused: Yellapragada Venkateswara Rao, S/o Gavarraju, Hindu, aged about 40 years, employee in Visakhapatnam Steel plant resident of Qr.No.106 F, Sector IV, Ukkunagaram, Visakhapatnam-530 032.

The offence complained of:Punishable u/sec. 138 of Negotiable Instruments Act.

Finding:Accused Found not guilty

Sentence: In the result Accused is found not guilty for the offence Under Section 138 of Negotiable Instrument Act and he is acquitted Under Section 255 (1) Criminal Procedure Code.

III METROPOLITAN MAGISTRATE

VISAKHAPATNAM.

1

IN THE COURT OF III METROPOLITAN MAGISTRATE AT VISAKHAPATNAM

PRESENT: SMT. SUNITHA GANDHAM, B.COM., LL.B.,P.G.D.P.M.,

III METROPOLITAN MAGISTRATE.

VISAKHAPATNAM

WEDNESDAY THE 5th DAY OF FEBRUARY, 2014

C.C.693/2011

This case coming on 29-1-2014 for final hearing before me in the presence of learned A.P.P. T.V.Ramana for the state-complainant and Sri V.Govinda Raju, Advocate for the accused and having stood over for consideration till this day, this court delivered the following:

JUDGMENT

a.The Serial No. of the case:C.C.No.693/2011 b.The date of offence:17-10-2011 c.The name of the complainant:State represented by the Inspector of Police, Pendurthy Police Station, Visakhapatnam city. d.The name of the accused:A1- Saripalli Kanaka Lakshmi @ Kanaka, W/o Kanakaraju, aged 32 years, Kapu by caste, Mutyamamba colony, Vepagunta, Pendurthi. A2-Killari Mani, W/o Sudhakar , aged 30years,Kapuby caste,Mutyamambacolony, Vepagunta, Pendurthi. A3 Killari Sudhakar, S/o Byragi, aged 38years,Kapuby caste,Mutyamambacolony, Vepagunta,Pendurthi.Painting works. A4- Saripalli Kanaka Raju @ Aggiraju, S/o Sannibabu, aged 35 years, Kapu by caste,Mutyamamba colony, Vepagunta, Pendurthi. e.The offence complained of:Punishable u/sec. 448, 427, 324 r/w 34 of Indian Penal Code. f.The plea of the accused & their :Pleaded not guilty examination, if any The Inspector of Police, Pendurthy Police Station, Visakha- patnam city filed charge sheet against accused in Cr.No.253/2009 for the of- fence punishable under section 448, 427, 324 r/w 34 of Indian Penal Code, with the following allegations:

2.That Lw.1 Vaboyina Udayakumari has been working as Woman Home guard in Visakhapatnam city and residing at Mutyamamba colony, Vepagunta along with her mother and brother Lws.2 and 3 V.Lakshmi, V.Chandra Rao. A1 to A4 are the neighbours of Lws.1 to 3 . There are dif- 2 ferences between Lws.1 to 3(V.Udayakumari, V.Lakshmi and V.Chandra Rao) and accused are frequently quarreling. Lws.1 and 2 used to put in peti- tions against the accused to Commissioner of Police, Visakhapatnam vide CC 972/11 dt.10-1-2011. The said petition was endorsed to HC 243 of Pendruthi Police station for enquiry. On 17-10-2011 night at about 9.30p.m. HC 243 went to the house of Lws.1 to 3 and accused to enquire into the petition. Lws.1 and 2 obstructed the HC 253 assault him for which a separate case in Cr.No.251/11 u/Sec. 186, 353 r/w 34 IPC was registered against Lws.1 and 2 on the complaint of HC 243 . After HC 243 left the place, all the accused A1 to A4 criminally trespassed into the house of LW.1, damaged the doors of the house of LW.1 beat Lws.1 and 2 with stones and broom sticks causing simple injuries . Lw.3 rescued Lws.1 and 2 from the hands of accused and LWS.1 and 2 escaped from the scene of site. Then, A1 to A4 beat Lw.3 causing simple injury to the left knee of Lw.3. Lws.1 to 3 got treatment in King George Hospital. Basing on the report of Lw.1- Vadaboyina Udayaku- mari , Lw.9 Inspector of Police registered the same as a case in Cr.No.253/11 u/s 448, 427, 324 r/w 34 of Indian Penal code. During the course of investigation , Inspector of Police visited the scene of offence, in- spected it, prepared observation of scene of offence in the presence of me- diators and seized the stick under the cover of mediators report, prepared rough sketch of the scene of offence, examined witnesses and recorded their statements. After completion of investigation Inspector of Police filed charge sheet against the accused under sections 448, 427, 324 r/w 34 Indian Penal Code.

3.Case was taken on file under sections 448, 427, 324 r/w 34 of Indian Penal Code. After appearance of the accused copies of documents were furnished to the accused as required under section 207 of Cr.P.C. The accused were examined under section 251 of Cr.P.C. and incriminating material was read over and explained to them in Telugu, for which they denied, pleaded not guilty and claimed to be tried.

4. To prove the case of the prosecution P.W.1 to P.W.7 were examined and Ex.P1 to Ex.P7 were marked After closure of evidence of prosecution the accused were examined under section 313 of Cr.P.C, all the incriminating evidence appearing against the accused were put to them and they denied the same and reported no defense evidence.

5.Heard arguments of learned Asst. Public Prosecutor and learned counsel for the accused .

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6. Now the points for consideration are:

1. Whether A1 to A4 trespassed into the house of PW.1 to PW.3 and liable for punishment under Section 448 of Indian Penal Code?

2. Whether A1 to A3 bet PW.1 to PW.3 and liable for punishment under Section 324 of Indian Penal Code??

3. Whether A1 to A4 caused mischief in the house of PW.1 to PW.3 and liable for punishment under Section 427 of Indian Penal Code?

4. Whether the prosecution proved the guilt of the accused beyond all reasonable doubts?

7.POINT Nos.1 to 3:

To prove the case of prosecution about the conduct of A1 to A4 and Pw.1 to 3 were examined. Pw.2 is the mother of PW.1 and PW.3 . PW.1 and PW.2 deposed that there are previous disputes between the accused and them, Pw.1 is working as Home guard, accused gave report to Commissioner of police by obtaining 30 persons signatures alleging that they are mental persons. PW.1 to PW.3 further deposed that on 17-10-2011 at about 9.15p.m, all the accused trespassed into their house, bet PW.1, PW.2 with sticks, broom and stones. They further deposed that when PW.3 tried to rescue PW.1 and PW.2. All the accused also bet PW.3 indiscriminately. They further deposed that PW.1 and PW.2 sustained injuries, went to hospital gave report to police. They further deposed that on the same day accused also gave report against them. Pw.2 further deposed that HC Adinarayana came to their house to enquire on the report given by them to CC cell, after he went away in incident in this case was occurred, when they went to police station HC Adinarayana refused to receive the report. Admittedly there are contradictions between the evidence of PW.1 to

3. Pw.1 deposed that she , her mother and brother gave report to police and she has not deposed that his brother was subsequently admitted in hospital but Pw.2 deposed that at first she and Pw.1 escaped from the scene of offence when the accused were beating PW.3, thereafter received information from PW.3 that his leg was fractured and they send Ambulance to their house and on the next day they went to police station and gave report to police. Pw.3 also deposed on the same lines. But these contradictions will not effect the total case. Because of the three witnesses clearly deposed that the overtacts of A1 to A4.

8.In the cross examination of PW.1 she admitted that she gave 10 or 15 reports against their neighbours . Those reports were not registered, 4 but police warned those persons. Learned counsel for the accused posed several suggestions stating that Pw.1 to 3 always altercating with the neighbouring persons, for which on number of occasions they gave report against PW.1 to PW.3, on the date of incident also . Basing on the report of PW.1 to PW.3, HC Adinaraya came to the scene of offence and when enquiring PW.1 and Pw.2 abused him, for which he left the place, because of previous disputes PW.1 to PW.3 gave false report against the accused. All the suggestions were denied by the PW.1 to PW.3.

9.Admittedly both parties having disputes since long time. As per the evidence of Pw.1 to PW.3 and out of the total record, both parties are neighbours and altercating for simple reasons. So also CC 695/11 is pending

before this court and came up for judgment along with this case . In that

case, A1 in this case gave report against PW.1 to Pw.3 . In that case also evidence let against the accused i.e., PW.1 to PW.3 in this case. CC 678/11 on the file of this court also pending against PW.1 and 2 and came up for judgment.

10.PW.4 who is the mediator for preparation of scene observation report not supported the case of prosecution. Pw.1 to Pw.3 deposed that A1 to A4 trespassed into their house and bet them. To prove the injuries Pw.6 was examined. PW.6 doctor that deposed she examined Pw.1, Pw.2 and Pw.3 and found injuries which were clearly mentioned in Ex.P4 to Ex.P6 and in her opinion all the injuries are simple in nature . Oral evidence of Pw.1 to Pw.3 was corroborated with the evidence of medical evidence.

11.PW.5 and PW.7 who is the investigating officers deposed as per record. To came to conclusion about exact scene of offence to attract Section 448, this court perused the Ex.P3 rough sketch and as per it scene of offence was situated in the house of PW.1 to PW.3. Investigating officer also gave evidence to that effect. Admittedly except PW.1 and Pw.2 there are no other independent witness to depose about the incident. But court can rely on the evidence of Pw.1 to Pw.3 if it inspires the confidence of court. Out of the evidence of PW.1 to Pw.3 they have not deposed about the mischief caused by the accused. Pw.2 only deposed that A1 to A4 damaged their household articles, but either of PW.1 or PW.3 have not deposed about the same.

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12.As per the evidence and discussions mentioned above, this court believed that A1 to A4 trespassed into the house of PW.1 to PW.3 bet them caused injuries to them. As only Pw.2 deposed that A1 to A4 damaged their household articles , this court not believed the same. Hence these points are answered accordingly in favour of the prosecution.

13. POINT No.4:

As per the finding of point Nos.1 to 3, prosecution establishes the guilt of the accused for the offence under section 448, 324 r/w 34 Indian Penal Code.

In the result, A1 to A4 are found guilty for the offence under section 448, 324 r/w 34 Indian Penal Code and thereby convicted under section 248(2) Cr. P.C.

III Metropolitan Magistrate, Visakhapatnam. Heard A1 to A4 on quantum of sentence, A1 to A4 submitted that they are doing daily works, having children prayed to take lenient view to impose sentence. I do not inclined to invoke the provisions of probation of Offenders Act, but a lenient view is taken.

In the result, A1 to A4 are sentenced to pay fine amount of Rs.500/- by each for the offence under Section 324 Indian Penal Code and in default of payment of fine , sentenced to suffer simple imprisonment for a period of Three months by each. Further A1 to A4 sentenced to pay fine amount of Rs.200/- for the offence under Section 448 Indian Penal Code by each and in default of payment of fine , sentenced to suffer simple imprisonment for a period of Two months . Bail bonds of the accused and sureties shall stands cancelled. The remand period of the accused if fine is not paid shall be given as set off under Section 428 Cr. P.C. Accused are appraised about their right of appeal to the Hon'ble District Court. Total fine amount of Rs.2,800/-. Partly typed to my dictation and partly dictated to Personal Assistant, transcribed by her, corrected and pronounced by me in open court, this the 5th day of February, 2014.

III Metropolitan Magistrate, Visakhapatnam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED:

FOR PROSECUTION: FOR DEFENCE: P.W.1:V.Udya KumariNIL P.W.2: V.Lakshmi 6

P.W.3:V.Chandra Rao P.W.4:V.Shiva Sankar P.W.5:P.Ramarao P.W.6:Dr.V.Kusuma Kumari P.W.7 :Sk.Hussan

EXHIBITS MARKED:

FOR PROSECUTION: Ex.P1 :Report of Pw.1 Ex.P2 :Scene observation report. Ex.P3 : Rough Sketch Ex.P4 :Wound Certificate of Pw.1 Ex.P5 :Wound Certificate of PW.2 Ex.P6 :Wound Certificate of PW.3. Ex.P7 :First Information Report

FOR DEFENCE: NIL

III Metropolitan Magistrate Visakhapatnam 7

CALENDER AND JUDGMENT

DISTRICT :: VISAKHAPATNAM

IN THE COURT OF III METROPOLITAN MAGISTRATE, VISAKHAPATNAM

C.C.NO.693/2011

Date of offence:17-10-2011

Date of release on bail: 18-10-2011

Date of Filing: 2-11-2011

Date of Apprehension: 4-6-2012

Date of commencement of trial: 26-6-2013

Date of Close of trial: 29-1-2014

Date of Sentence or Order: 5-2-2014

Explanation for delay: Delay due to non-appearance of accused and witnesses. No witness is detained beyond three days.

C.C.No.693/2011on the file of III Metropolitan Magistrate, Visakhapatnam The name of the complainant :State represented by the Inspector of Police, Pendurthy Police Station, Visakhapatnam city. The Name of the accused :A1- Saripalli Kanaka Lakshmi @ Kanaka, Parentage & ResidenceW/o Kanakaraju, aged 32 years, Kapu by caste, Mutyamamba colony, Vepagunta, Pendurthi. A2-Killari Mani, W/o Sudhakar , aged 30 years, Kapu by caste,Mutyamamba colony, Vepagunta, Pendurthi. A3 Killari Sudhakar, S/o Byragi, aged 38 years, Kapu by caste,Mutyamamba colony, Vepagunta, Pendurthi. Painting works. A4- Saripalli Kanaka Raju @ Aggiraju, S/o Sannibabu, aged 35 years, Kapu by caste,Mutyamamba colony, Vepagunta, Pendurthi. Offences:Punishable u/sec. 448, 324 r/w 34 of Indian Penal Code. Finding:Accused found guilty

Sentence: In the result, A1 to A4 are found guilty for the offence under section 448, 324 r/w 34 Indian Penal Code and thereby convicted under section 248(2) Cr. P.C. A1 to A4 are sentenced to pay fine amount of Rs.500/- by each for the offence under Section 324 Indian Penal Code and in default of payment of fine , sentenced to suffer simple imprisonment for a period of Three months by each. Further A1 to A4 sentenced to pay fine amount of Rs.200/- 8 for the offence under Section 448 Indian Penal Code by each and in default of payment of fine , sentenced to suffer simple imprisonment for a period of Two months . Bail bonds of the accused and sureties shall stands cancelled. The remand period of the accused if fine is not paid shall be given as set off under Section 428 Cr. P.C. Accused are appraised about their right of appeal to the Hon'ble District Court. Total fine amount of Rs.2,800/-.

III METROPOLITAN MAGISTRATE,

VISAKHAPATNAM

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IN THE COURT OF III METROPOLITAN MAGISTRATE AT VISAKHAPATNAM

PRESENT: SMT. SUNITHA GANDHAM, B.COM., LL.B.,P.G.D.P.M.,

III METROPOLITAN MAGISTRATE.

VISAKHAPATNAM

WEDNESDAY THE 5th DAY OF FEBRUARY, 2014

C.C.695/2011

This case coming on 29-1-2014 for final hearing before me in the presence of learned A.P.P. T.V.Ramana for the state-complainant and Sri Kamsu Prabhakar, Advocate for the accused and having stood over for consideration till this day, this court delivered the following:

JUDGMENT

a.The Serial No. of the case:C.C.No.695/2011 b.The date of offence:17-10-2011 c.The name of the complainant:State represented by the Inspector of Police, Pendurthy Police Station, Visakhapatnam city. d.The name of the accused: A1 – Vadaboyina Lakshmi, W/o Rama Krishna, aged 48 years, Settibalija by caste, R/o D.No.3- 167/D,MutyamambaColony, Vepagunta, Pendurthi Mandal. A2-Vadaboyina Udayakumari, D/o Rama Krishna , aged 29 yeas, Settibalija by caste, Home Guard No.417,R/oD.No.3-167/D, Mutyamamba Colony, Vepagunta, Pendurthi Mandal. A3- Vadaboyina Chandra Rao, S/o Rama Krishna, aged 30 years, Settibalija by caste. Home Guard No.417,R/oD.No.3-167/D, Mutyamamba colony, Vepagunta, Pendurthi Mandal. e.The offence complained of:Punishable u/sec. 341, 323, 506 r/w 34 of Indian Penal Code. f.The plea of the accused & their :Pleaded not guilty examination, if any The Sub-Inspector of Police, Pendurthy Police Station, Visakhapat- nam city filed charge sheet against accused in Cr.No101/2009 for the offence punishable under section 341, 323, 506 r/w 34 of Indian Penal Code, with the following allegations:

2. That the Lws.1 to 4 ( Saripalli Kanaka Lakshmi, Kilari Nagamani, Kailari Sudhakar and Saripalli Kanakaraju) and A1 to A4 are the residents of Mutyamamba colony , Pendurthy. A1 to A3 are neighbours of LW.1. There are differences between Lws.1 to 4 and A1 to A3 are frequently quarreling. Accused put in petitions against the Lws.1 to 4 to Commissioner of Police, 2

Visakhapatnam vide CC 972/11 dt.10-1-2011 agaisnt Lws.1 and 2 and others . On 17-10-2011 night at about 9.30p.m. HC 243 went to the house of accused to enquire into the petition. A1 and A2 obstructed the HC 253 assault him for which a separate case in Cr.No.251/11 u/Sec. 186, 353 r/w 34 IPC was regis- tered against A1 and A2 on the complaint of HC 243 . After HC 243 leaving from scene of site, quarrel ensued between accused and Lws.1 to 4. A1 to A3 wrongfully restrained Lws.1 and 2 from moving further beat with hands, abused in filthy language, A1 went into her house, brought gas stove and at- tempted to beat Lw.1 S.Kanakalakshmiwith the gas stove. Lw.2 rescued Lw.1 as a result, Lw.2 received bleeding injury to her hand. Both Lws.1 and Lw.2 ( S.Kanakalakshmi and K.Nagamani) got treatment in a private hospital. , Basing on the report of Lw.1- S.Kanakalakshmi, Lw.9 Inspector of Police registered the same as a case in Cr.No.252/11 u/s 323, 324 r/w 34 of Indian Penal code. During the course of investigation , Inspector of Police visited the scene of offence, inspected it, prepared observation of scene of offence in the presence of mediators and seized gas stove under the cover of media- tors report, prepared rough sketch of the scene of offence, examined witness- es and recorded their statements. After completion of investigation Inspector of Police filed charge sheet against the accused under sections 341, 323, 506 r/w 34 Indian Penal Code.

3.Case was taken on file under sections 341, 323, 506 r/w 34 of Indian Penal Code. After appearance of the accused copies of documents were furnished to the accused as required under section 207 of Cr.P.C. The accused were examined under section 251 of Cr.P.C. and incriminating material was read over and explained to them in Telugu, for which they denied, pleaded not guilty and claimed to be tried.

4. To prove the case of the prosecution P.W.1 to P.W.8 were examined and Ex.P1 to Ex.P4 were marked and Ex.D1 toD3 were marked After closure of evidence of prosecution the accused was examined under section 313 of Cr.P.C, all the incriminating evidence appearing against the accused were put to them and they denied the same and reported no defense evidence.

5.Heard arguments of learned Asst. Public Prosecutor and learned counsel for the accused .

6. Now the points for consideration are:

1. Whether the A1 to A3 bet PW.1 and PW.2 by confining them and liable for punishment under section 323, 341, 506 r/w 34 of Indian Penal Code?

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2. Whether the prosecution proved the guilt of the accused beyond all reasonable doubts?

7. Point No.1

To prove the conduct of A1 to A3, Pw.1 to 5 were examined. Pw.1/defacto complainant deposed that prior to 7 years accused gave false report against them thereafter that case was ended with acquittal since then they are not talking with the accused. She further deposed that as accuse gave report againt them, HC Adinarayana came to their house for enquiry on 17-10-2011 at about 9.30p.m., when conducting enquiry, all the accused abused him by alleging that he colluded with PW.1 to Pw.4. She further deposed thereafter all the accused abused her stating that they colluded with police, caught hold her tuft of hair , dragged her from their land and bet her with hands and stove . She further deposed that on seeing this PW.2 came there, tried to rescue , then A3 throw gas stove on her, A3 bet her and she sustained injuries. Therafter they went to police station and gave report under Ex.P1. Pw.2 also deposed on the same lines. She deposed that she sustained injury to her left hand thumb and head. PW.3, PW.4 who are the husbands of Pws.1 and 2 deposed that they came to know about the incident through their children and went to police station. Pw.5 who is eyewitnes deposed that on 17-10-2011 at about 9.30a.m he found A1 to A3 were beating Pw.1 and Pw.2 with stones and gas stove. Evidence of Pw.5 ie., who is independent witness also corroborated with the evidence of PW.1 and 2 . Admittedly there are minor contradictions in the evidence of Pw.1 and 2, but they will not vitiate the total case.

8. In the cross examination of PW.1 she admitted that she gave report to commissioner of police by obtaining the signatures of 36 persons, accused gave report against them. Ex.D1 to Ex.D3 portions were marked through the PW.1 as she denied the said statements . Ex.D1 is A1 tried to bet with gas stove, Ex.D2 is police came to their house to conduct enquiry basing on the report given by them. Ex.D3 is first they went to hospital thereafter to police station. These contradictions were confronted through Pw.7 investigating officer.

9. In the cross examination of Pw.2 she admitted that she also gave report to commissioner of police along with 30 others. Ex.D4 portion to that effect A1 tried to bet her sister with gas stove . They deposed that A3 tried to bet Pw.1 with gas stove, but in their statements to police they stated as per Ex.D1 and Ex.D4. Admittedly this is material contradiction. But in view 4 of the disputes between both the parties and three incidents on the same day , this court not considered Ex.D1 and Ex.D4 to vitiate the total case.

10. PW.1 and PW.2 deposed that PW.2 sustained injury but wound certificates of either PW.1 or PW.2 were not filed along with the charge sheet , there is no evidence to that effect, so also Doctor was also not cited as witness. But though they have not treated by doctor, their evidence can be considered to attract Section 323 of Indian Penal Code. So also police filed charge sheet under section 323, 506 r/w 34 Indian Penal Code.

11. Admittedly both the parties having disputes since long time. As per the evidence of Pw.1 to Pw.4 and out of the total record, both parties are neighbours and altercating for simple reasons . So also CC 693/11 is pending before this court, in that case A1 and A2 gave report against PW.1 to Pw.4. In that case evidence let against the accused i.e., Pw.1 to PW.4.

12. Pw.6 who is the mediator for preparation of scene observation report not supported the case of the prosecution. Pw.7 and Pw.8 who are the investigating officers deposed evidence in their chief examinations as per record. Pw.7 also admitted that both parties used to give report against each of them for every week and he know about the report given to the Commissioner of Police.

13. As seen from the record, there is no sufficient evidence in this case or in the counter case CC 693/11 to show that who are the aggressors . Hence this court is of the considered view that both the parties altercated with each other and A1 to A3 bet the PW.1 and 2 with hands.

14. As per the evidence of PW.1 to PW.4, PW.1 and PW.2 A1 and A2 dragged the Pw.1 to their land, bet her and PW.2. Independent witness evidence i.e., PW.5 also supported the evidence of PW.1 and Pw.2. There is no evidence to believe the offence under section 506 Indian Penal Code.

15. In view of the previous disputes between both parties , pendency of counter C.C.693/11 and as per the evidence and discussions mentioned above, this court believed that A1 to A3 bet PW.1 and PW.2 with hands. This point is accordingly answered in favour of the prosecution.

16. POINT NO.2 As per the finding of Point No.1, prosecution bring home the guilt of the accused to prove the case against the accused for the offence under 5

Section 323 r/w 34 Indian Penal Code. Hence this point is accordingly answered in favour of the prosecution.

17. In the result, A1 to A3 are found guilty for the offence under section 341, 323 r/w 34 Indian Penal Code and thereby convicted under section 248(2) Cr. P.C.

III Metropolitan Magistrate, Visakhapatnam. Heard A1 to A3 on quantum of sentence, A2 submitted that she has been suffering from ill-health, A1 and A2 submitted that they are leaving by doing daily works and prayed to take lenient view to impose sentence. I do not inclined to invoke the provisions of probation of Offenders Act, but a lenient view is taken.

In the result, A1 to A3 are sentenced to pay fine amount of Rs.500/- by each for the offence under Section 323 Indian Penal Code and in default of payment of fine , sentenced to suffer simple imprisonment for a period of Three months by each. Bail bonds of the accused and sureties shall stands cancelled. The remand period of the accused, if fine is not paid shall be given as set off under Section 428 Cr. P.C. Accused are appraised about their right of appeal to the Hon'ble District Court. Total fine Rs.1,500/-.

Partly typed to my dictation and partly dictated to Personal Assistant, transcribed by her, corrected and pronounced by me in open court, this the 5th day of February, 2014.

III Metropolitan Magistrate, Visakhapatnam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED:

FOR PROSECUTION: FOR DEFENCE: P.W.1:S.Kanaka LakshkmiNIL P.W.2: K.Nagamani P.W.3:K.Sudhakar P.W.4:S.Kanaka Raju P.W.5:S.Kodandam P.W.6:V.Shiva Sankar P.W.7:P.Simhachalam P.W.8: Sk.Hussan 6

EXHIBITS MARKED:

FOR PROSECUTION: Ex.P1 :Report of Pw.1 Ex.P2 :Rough sketch Ex.P3 :Scene observation report. Ex.P4 :First Information Report

FOR DEFENCE: Ex.D1 : Portion of 161 statement of PW.1 Ex.D2 :Portion of 161 statement of PW.1 Ex.D3 :Portion of 161 statement of PW.1 Ex.D4 :Portion of 161 statement of PW.2

III Metropolitan Magistrate Visakhapatnam 7

CALENDER AND JUDGMENT

DISTRICT :: VISAKHAPATNAM

IN THE COURT OF III METROPOLITAN MAGISTRATE, VISAKHAPATNAM

C.C.NO.695/2011

Date of offence:17-10-2011

Date of release on bail: 24-10-2011

Date of Filing: 3-11-2011

Date of Apprehension: 27-4-2012

Date of commencement of trial: 26-6-2013

Date of Close of trial: 29-1-2014

Date of Sentence or Order: 5-2-2014

Explanation for delay: Delay due to non-appearance of accused and witnesses. No witness is detained beyond three days.

C.C.No.695/2011on the file of III Metropolitan Magistrate, Visakhapatnam The name of the complainant :State represented by the Inspector of Police, Pendurthy Police Station, Visakhapatnam city. The Name of the accused : A1 – Vadaboyina Lakshmi, W/o Rama Parentage & ResidenceKrishna, aged 48 years, Settibalija by caste, R/o D.No.3-167/D, Mutyamamba Colony, Vepagunta, Pendurthi Mandal. A2-Vadaboyina Udayakumari, D/o Rama Krishna , aged 29 yeas, Settibalija by caste, Home Guard No.417, R/o D.No.3- 167/D, Mutyamamba Colony, Vepagunta, Pendurthi Mandal. A3- Vadaboyina Chandra Rao, S/o Rama Krishna, aged 30 years, Settibalija by caste. Home Guard No.417, R/o D.No.3- 167/D, Mutyamamba colony, Vepagunta, Pendurthi Mandal. Offences:Punishable u/sec. 341, 323 r/w 34 of Indian Penal Code. Finding:Accused found guilty

Sentence: In the result, A1 to A3 are found guilty for the offence under section 341, 323 r/w 34 Indian Penal Code and thereby convicted under section 248(2) Cr. P.C. A1 to A3 are sentenced to pay fine amount of Rs.500/- by each for the offence under Section 323 Indian Penal Code and in default of payment of fine , sentenced to suffer simple imprisonment for a period of Three months by each. Bail bonds of the accused and sureties shall stands cancelled. The remand period of the 8 accused, if fine is not paid shall be given as set off under Section 428 Cr. P.C. Accused are appraised about their right of appeal to the Hon'ble District Court. Total fine Rs.1,500/-.

III METROPOLITAN MAGISTRATE,

VISAKHAPATNAM