G.v. Subrahmanyam

IN THE COURT OF THE II ADDITIONAL SESSIONS JUDGE, KURNOOL AT

ADONI.

PRESENT: SRI. G.V. SUBRAHMANYAM, II ADDITIONAL SESSIONS JUDGE.

WEDNESDAY, THE 29TH DAY OF APRIL, 2015.

CRIMINAL APPEAL NO.169/2013.

From what court the JUDICIAL MAGISTRATE OF FIRST CLASS appeal is preferred.

COURT, YEMMIGANUR.

No.of the case in that CALENDAR CASE NO.298/2011. court. Name & description of Lingam Sudarshan Reddy, S/o. Lingam the appellant. Shankar Reddy, Retired Junior Lecturer, Hindu, 59 years, D.No.1/2324, Nehru Nagar, S.M.T. Colony, Yemmiganur. Name and description of D. Seshi Reddy, S/o. D. Bala Nagi Reddy, 65 the respondent. years, Yemmiiganur.

The sentence and Law The accused is found guilty for the offence under which it was U/sec.138 of Negotiable Instruments Act, imposed in the lower convicted U/sec.255 (2) Cr.P.C. and court. sentenced to under go Simple Imprisonment for a period of one year. Whether confirmed, PARTLY ALLOWED. modified or reversed and if modified, the modification. Date of presentation. 13-08-2013.

Date of filing. 13-08-2013.

Date of notice issued to 25-10-2013. appear. Date of bail bond if -- appellant has/have been let out on bail. Date of order to appear. 19-12-2013.

Date of hearing: 11-03-2015.

Date of Judgment. 29-04-2015.

This appeal coming on 11-03-2015 before me for hearing in the presence of Sri. K. Venkata Swamy, Advocate for the appellant and Sri. P.

Rajendra Prasad, Advocate for the respondent; and upon perusing the grounds of appeal and the record of the evidence and the proceedings and upon duly considering the same and after hearing both sides; this Court delivered the following:

: J U D G M E N T :

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This appeal is filed against the Judgment of conviction and sentence rendered by the learned Judicial Magistrate of First Class, Yemmiganur, in

C.C. No.298/2011 dated 30-07-2013 wherein the trial Court found the accused is found guilty for the offence U/sec.138 of Negotiable

Instruments Act, convicted U/sec.255 (2) Cr.P.C. and sentenced to under go Simple Imprisonment for a period of one year. Aggrieved by the said

Judgment, the appellant/accused has preferred this appeal.

2. It is contended by the appellant/accused that the Judgment of the trial Court is against law, weight of evidence and probabilities of the case.

The trial Court failed to appreciate the evidence on proper lines. The trial

Court erred in accepting the evidence of PW1. The trial Court failed to take into consideration that PW1 filed a civil suit vide O.S.No.164/2011 on the file of Senior Civil Judge’s Court, Adoni. In the written statement of the said case, the appellant/accused has taken a plea that the Cheque was issued for collateral security. The complainant calculated the interest from 06-06-2011 and filed the suit. The cheque is dated 29-05-2011. So, if the cheque is issued on 29-05-2011 the interest should have been calculated from 29-05-2011 but not from 06-06-2011.

The statutory notice issued by the complainant is also not correct.

The authorities submitted by the appellant/accused were not properly appreciated by the trial Court.

The trial Court erroneously came to the conclusion that the stop payment request made by the appellant/accused would fall within the scope of Sec.138 of Negotiable Instruments Act. The contention of the appellant/accused that stop payment will not attract to Sec.138 of the

Negotiable Instruments Act is not properly appreciated by the trial Court.

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The quantum of sentence imposed by the trial Court is excessive and disproportionate to the facts and circumstances of the case. Hence, the appeal may be allowed and the conviction and sentence imposed by the trial Court may be set aside.

3. The respondent vehemently opposed the grounds of appeal and contended that the trial Court has rightly appreciated the oral and documentary evidence adduced by both the parties and arrived at proper conclusion. Therefore, the appellant/accused has no grounds to succeed in the appeal, as such, the Judgment of conviction and sentence passed by the trial Court deserves to be confirmed.

4. Now the points for consideration are:

1) Whether the complainant could bring home the offence U/sec.138 of the Negotiable Instruments Act, against the accused?

2) Whether the Judgment rendered by the trial Court is sustainable in law and on facts?

5. The brief averments of the complaint are that the accused borrowed a sum of Rs.2,00,000/- from the complainant on 06-06-2009 at

Yemmiganur and executed a promissory note on the same day and agreed to repay the same with interest at 24% p.a. Since the accused did not repay the amount, the plaintiff has filed a suit in O.S.No.164/2011 on the file of Senior Civil Judge’s Court, Adoni. In view of the demands made by the complainant, finally the accused issued a Cheque bearing No.0767201

dated 29-05-2011 drawn on Andhra Pragathi Grameena Bank,

Yemmiganur, towards the discharge of the due amount. When the complainant presented the cheque for encashment on 08-06-2011 it was returned as “Payment stopped by the Drawer”.

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The accused is liable to pay Rs.2,00,000/- with interest, but due to the instructions given by the accused to stop payment, the cheque is dishonoured. Hence, the accused is liable to be punished for the offence

U/sec.138 of the Negotiable Instruments Act.

The complainant got issued a legal notice on 17-06-2011 asking the accused to clear the cheque amount within the stipulated time. The accused got issued the reply notice on 22-06-2011 denying the entire contents of the notice. Therefore, the complaint to punish the accused

U/sec.138 of the Negotiable Instruments Act.

6. To prove the case of the complainant, he is examined as PW1.

He submitted the chief-examination affidavit reiterating the averments made in the complaint. In his evidence the certified copy of the promissory note is marked as Ex.P1. He said that the accused had issued the cheque on 29-05-2011 under Ex.P2. He presented the cheque on 08- 06-2011 before the Town Co-operative Bank, Yemmiganur. Under Ex.P3 memo, the complainant is informed that the cheque could not be

honoured as the accused gave instructions to stop payment. Ex.P4 is the

intimation memo sent to the complainant. The legal notice got issued by the complainant is marked as Ex.P5 and the postal acknowledgement is marked as Ex.P6. The reply notice given by the accused is marked as

Ex.P7. The certified copy of the written statement filed by the accused in

O.S.No.164/2011 on the file of Senior Civil Judge’s Court, Adoni, is

marked as Ex.P8 and the certified copy of the plaint in the said suit is marked as Ex.P9.

7. On closure of the complainant’s evidence, the accused got examined himself as DW1. In his evidence the agreement of sale is marked as Ex.D1, S.B. Account pass book is marked as Ex.D2, the Cheque

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book without leaves is marked as Ex.Ex.D3 and the account extract is marked as Ex.D4.

In the cross-examination he has stated that he was convicted for the similar offences by the Judicial Magistrate of First Class, Adoni. He denied the suggestion that to avoid the payment of loan, he has taken false pleas.

8. The learned trial Judge has discussed this evidence adduced on behalf of both the parties and opined that the complainant has proved the case U/sec.138 of the Negotiable Instruments Act, as such, convicted and sentenced to under go Simple Imprisonment for one year.

9. I have thoroughly reanalyzed the evidence adduced on behalf of the complainant and the accused. The gist of the contention of the accused is that he did not borrow the amount of Rs.2,00,000/- on 06-06- 2009 and he did not execute the promissory note. The complainant has submitted the certified copy of the promissory note marked as Ex.P1. It can be seen from the very contents of the promissory note that the pronote is written by no other than the accused himself and at the place of scribe he mentioned as “Swadasthuri”. On thorough perusal and examination of the document, no such doubt would arise that the date and amount has been interpolated. The promissory note was executed in the presence of the witnesses. When the pronote is written in the handwriting of the accused himself, he cannot deny that he did not borrow the amount of Rs.2,00,000/- on 06-06-2009.

10. In the cross-examination of PW1 it is suggested that the accused had the habit of taking petty amounts like Rs.5,000/- and

Rs.10,000/- from the complainant and the dues rose up to Rs.75,000/-.

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At that the complainant lent Rs.25,000/- and thus the total outstanding amount is only Rs.1,00,000/-. The said suggestion given by the accused has been categorically denied by the complainant. In view of the suggestion given by the accused, one fact clearly emerges that the accused had the practice of borrowing petty amounts from the complainant. Therefore, there is close acquaintance in between the accused and the complainant is clearly made out.

11. The complainant contended that the accused gave cheque under

Ex.P2 on 29-05-2011. The accused contended that the cheque is given towards collateral security. A careful perusal of the Cheque under Exs.P2 also makes it clear that the date and the amount is also mentioned by the accused in his own hand with the same ink. Even if the accused has given the cheque as collateral security without there being sufficient amount in his account, it also amounts to an offence U/Sec.138 of the Negotiable

Instruments Act. If the cheque would have been given to the complainant along with the promissory note in the year 2009 nothing prevented the accused to demand the complainant to return the cheque as soon as the repayment is made. At least, he should have issued a notice to the complainant stating that the cheque is given towards collateral security and it cannot be presented for encashment. Instead of informing the bank well in advance in the year 2009 itself, the accused gave instructions to the bank in the month of June, 2011 to stop payment. Unless he would have issued the cheque on 29-05-2011 there was no necessity for him to instruct the bank to stop payment in the month of June, 2011. So, the act of the accused in giving instructions to the bank to stop payment also falls within the scope of Sec.138 of the Negotiable Instruments Act.

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12. It is borne by record that the complainant got issued a legal notice under Ex.P5 o 17-06-2011. On 22-06-2011 the accused replied to the said notice. In the said reply notice also, the accused simply denied to have issued the cheque in favour of the complainant. But he did not say that the said cheque was given as collateral security for Rs.1,00,000/- to be paid to the complainant. Similarly, he did not inform the accused that he had already instructed the bank to stop payment. Simply the accused had contended that because he has not issued the cheque, the question of dishonour of the cheque does not arise and he cannot be prosecuted

U/sec.138 of the Negotiable Instruments Act. In this manner the accused has not set-up his plea in the reply notice contending that the cheque was given towards collateral security.

13. The contention of the accused is self-contradictory. The accused himself filed a suit for cancellation of registered sale deed dated 11-01- 2000 vide O.S.No.267/2011 on the file of Senior Civil Judge’s Court,

Adoni. The certified copy of the plaint is marked as Ex.P9. It is an undisputed document and it is the plaint submitted by the accused himself. In para No.3 of the plaint, the accused categorically admitted that on 06-06-2009 he had executed the promissory note in favour of the complainant for a sum of Rs.2,00,000/- as per the advise of the elders. In the same para at page No.3 he has also mentioned that the accused issued a cheque for Rs.2,00,000/- drawn on Andhra Pragathi Grameena

Bank, Yemmiganur, for a sum of Rs.2,00,000/- in favour of the complainant. It is also mentioned in the said complaint that after receipt of the said cheque, the complainant informed him that he would prosecute for the offence U/sec.138 of the Negotiable Instruments Act. In this way, in one judicial proceedings in civil suit, the accused himself admitted to have executed the promissory note and said to have issued a cheque

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under Ex.P2. Now in the criminal proceedings, he took a plea that he did not borrow the amount and he did not issue the cheque. The very admission made by the accused in contemporary judicial proceedings make it very clear that the accused had issued the cheque and gave instructions to the back to stop payment and thereby committed the offence U/sec.138 of the Negotiable Instruments Act.

13. In the case law reported in 2010 (1) A.L.T. (Crl.) 347 between

M. VIDYAVATHI VS. CHANDRAIAH, it is laid down as follows:

“Initial burden is on complainant to establish that the cheque in question was given by accused for legally enforceable debt or liability – After discharging that burden, accused must plead and establish that the cheque in question was not given for legally enforceable debt in view of presumption U/sec.139 of the Act – The word “unless contrary is proved” in Sec.139 of the Act would mean that there must be a pleading and evidence to substantiate the same and mere explanation, not sufficient for discharging the burden placed on the accused.”

In this case the complainant has categorically established through

Ex.P1 that the accused borrowed a sum of Rs.2,00,000/- and subsequently on demand made by him for discharge of legally enforceable debt only the accused has issued the cheque under Ex.P2. The accused has taken different pleas but he could not adduce sufficient evidence to establish his contention. Thus, he failed to discharge his burden.

14. The accused has submitted the bank statement which is marked as Ex.D4. The trial Court has categorically held that on perusal of the statement, it is found that as on the date of issuing the cheque on 29-05- 2011 there was insufficient funds in the account of the accused.

Therefore, issuing the cheque knowing well that there were insufficient

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funds and subsequently giving instructions to the Bank to stop payment would clearly fall within the ambit of Sec.138 of the Negotiable

Instruments Act. In the case law reported in 2010 A.C.R. 678 between

RANGAPPA VS. SRIMOHAN, the law laid down is very clear that the offence U/sec.138 of the Negotiable instruments Act is attracted even when the cheque is dishonoured on account of stop payment. The trial

Court has discussed various aspects on answered all the defence that has been taken by the accused and held that the accused failed to rebut the presumption, and therefore, the complainant has made out the offence

U/sec.138 of the Negotiable Instruments Act. I do not see any improper appreciation of the facts and evidence and the conclusion arrived at by the trial Court is just and reasoning. Therefore, I am of the view that the accused deserve to be convicted U/Sec.138 of the Negotiable Instruments

Act.

15. In the case law reported in 2010 (1) A.L.T. (Crl.) 347 between

M. VIDYAVATHI VS. CHANDRAIAH, it is laid down by the Hon’ble High

Court as follows:

“Issuance of cheque for legally enforceable debt for amounts advanced - Transaction relating for over more than a decade back – Admittedly husband of PW1 and accused are close friends – May be due to loss in contracts, accused would not have paid the amount – Civil suit, basing on promissory note, decreed – Therefore, lenient view can be taken with regard to the sentence – Accused is sentenced to pay compensation of Rs.8,00,000/- within 6 months.”

While applying the said proposition of law to the facts on hand, in the present case also, the accused and the complainant have acquaintance since long time and there were small financial transactions in between them. The accused has worked as Junior Lecturer in a college

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and had developed friendship with the complainant. The transaction dates back to the year 2009. 6 years lapsed. Not only in this case, but also in several cases, the accused has faced turmoil. It is also a fact that the complainant had already filed a suit for recovery of amount basing on the promissory note on the file of Senior Civil Judge’s Court, Adoni, vide

O.S.No.164/2011. Considering all these circumstances, I am of the view

that it is a fit case to set aside the sentence of imprisonment awarded by the trial Court and to award compensation to the complainant and in default to impose sentence. Accordingly the points are answered.

16. In the result, the appeal is partly allowed confirming the conviction of accused but setting aside the sentence of imprisonment for a period of one year, passed by the Judicial Magistrate of First Class,

Yemmiganur, in C.C.No.298/2011 dated 30-07-2013 and he is sentenced to pay compensation of Rs.3,44,000/- to the complainant within 6 months from the date of this Judgement, failing which he shall undergo Simple

Imprisonment for 6 months. The remand period of the accused, if any, shall be set-off U/Sec.428 Cr.P.C.

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

pronounced by me in open Court this the 29th day of April, 2015.

II ADDITIONAL SESSIONS JUDGE,

KURNOOL AT ADONI.

IN THE COURT OF THE II ADDITIONAL SESSIONS JUDGE: KURNOOL AT

ADONI.

PRESENT: SRI. G.V. SUBRAHMANYAM, II ADDITIONAL SESSIONS JUDGE.

THURSDAY, THE 16TH DAY OF APRIL, 2015.

CRIMINAL APPEAL NO. 125/2012 .

From what court the JUDICIAL MAGISTRATE OF FIRST CLASS appeal is preferred.

COURT, ADONI.

No. of the case in that D.V.C. CASE NO.3/2008. Court. Name & description of 1. Anwar Basha, S/o. D. Abdul Jabbar, the appellant. Muslim, 28 years, Commission Agent, D.No.6/272, Teliwada Street, Opposite to Kamela, Adoni.

2. D. Muqthar Ahmed, S/o. D. Abdul Jabbar, Muslim, 26 years, Financier, D.No.6/272, Teliwada Street, Opposite to Kamela, Adoni.

3. D. Shahanaz Banu, D/o. D. Abdul Jabbar, Muslim, 30 years, Sinecure, D.No.6/272, Teliwada Street, Opposite to Kamela, Adoni.

4. Haseena Banu, S/o. Ghouse Basha, Muslim, 24 years, D.No.6/272, Teliwada Street, Opposite to Kamela, Adoni Name and Description of Smt. D. Noorjahan Banu, W/o. D. Anwar the Respondent. Basha, Muslim 19 years, D.No.26/90/1, Kowdiyalpet, Adoni. The sentence and Law The Respondents 1 to 4 are directed not to under which it was cause any violence against the petitioner imposed in the lower Court. and the dependents of the petitioner as enumerated U/Sec.18 (a) to (g) of Domestic

Violence Act. Further the respondent No.1 is directed to pay an amount of Rs.5,000/- per month towards maintenance to the petitioner and her minor child, who is dependant on the petitioner from the date of passing on this order on or before 10th day of every month.

Whether confirmed, PARTLY ALLOWED. modified or reversed and if modified, the modification. Date of presentation. 17-07-2012.

Date of filing. 17-07-2012.

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Date of notice issued to 20-07-2012. appear. Date of bail bond if --- appellant has/have been let out on bail. Date of Order to appear. ---

Date of hearing: 06-04-2015.

Date of Judgment. 16-04-2015.

This appeal coming on 06-04-2015 for final hearing before me for hearing in the presence of A. Sardar Ahamed, Advocate for the appellants and Sri. G. C. Ranganna, Advocate for the respondent and upon perusing the grounds of appeal and the record of the evidence and upon duly considering the same and after hearing both sides; this Court delivered the following:- : J U D G M E N T :

This is an appeal filed against the orders passed by the Judicial

Magistrate of First Class, Adoni, in D.V.C. No.3/2008 dated 25-06-2012.

The appellant No.1 is the husband and the respondent is his wife. The respondent filed D.V.C.No.3/2008 U/Sec.12 of Protection of Women from

Domestic Violence Act to cause protection order and to direct the respondent No.1 to pay some of Rs.10,000/- towards maintenance to her and her minor child. The trial Judge passed order directing the respondents not to cause any violence against the petitioner and U/Sec.

18 of the Domestic Violence Act, he directed the respondent No.1 to pay maintenance of Rs.5,000/- per month to the petitioner and her minor child payable on or before 10th of every month. Aggrieved by the said

Judgment, the Appellant/accused preferred the present appeal.

2. It is contended by the Appellants/accused that the orders of the trial Court is based on assumptions and presumptions without valid reasons. The appellant No.1 has proved the factum of divorce, but, the 3 trial Court did not discuss this aspect on proper lines. The trial Court failed to observe that even the respondent/petitioner did not stay in the house of the appellants/accused continuously for 6 months. Hardly the appellant No.1 and the respondent/petitioner lived for a fortnight.

Therefore, the question of harassment does not arise.

The trial Court ought to have dismissed the Domestic Violence Case on the ground that there is no cause of action. The respondent/petitioner failed to state the date on which she left the house on the pretext of toothache. The trial Court wrongly came to the conclusion that the respondent/petitioner stayed with the appellants/accused for a period of 7 months intermittently. The trial Court has believed the evidence of RWs.2 and 3 about the divorce deed executed by the appellant No.1, in such circumstances, the trial Court ought not to have granted maintenance to the respondent/petitioner. The protection order granted by the trial Court is also against settled principles. Hence, the orders may be set aside.

3. The learned counsel for the respondent/accused vehemently opposed the grounds of appeal and contended that the trial Court has rightly passed the orders under Sec.12 of the Domestic Violence Act, hence, the appeal is liable to be dismissed.

4. Now the points for consideration are:

1) Whether the protection Order passed U/Sec.12 of the Domestic

Violence Act by the Judicial Magistrate of First Class, Adoni, is justified?

2) Whether the petitioner and her child is entitled for maintenance of Rs.5,000/- per month?

3) Whether the orders passed by the trial Court is sustainable in law and on facts?

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5. For the sake of convenience, the parties to the appeal are referred with the same status as they are arrayed in the D.V.C. Hence, the appellants are referred as accused and the respondent herein is referred as the petitioner.

6. The gist of the case of the petitioner is that she is the legally wedded wife of the respondent No.1. Their marriage was performed on 05-04-2007 as per Mohammedan Law. Sufficient gold and silver ornaments, Jahaz articles were given to the respondents on the occasion of marriage. She joined the society of the respondents and lived for a period of 5 months. On one occasion, the petitioner went to the house of her parents for receiving treatment for her toothache. When the petitioner returned back to the respondents’ house after receiving the treatment, they started ill-treating her. The respondents used to beat the petitioner for silly reasons. Finally she was necked-out of the matrimonial house. Having come under the influence of the respondents Nos.2 and 3, the respondent No.1 harassed the petitioner demanding additional dowry of Rs.1,00,000/-. When she was driven out of the house she as carrying 5th month pregnancy. Even after delivery of a female baby and respondent No.1 did not come to see the child and did not take her into his society. Three months after delivery of the baby, the parents of the petitioner took her to the matrimonial house. On that occasion also, hardly for 22 days she stayed in the matrimonial house. During this time also, she was ill-treated by the respondents. She made-up her mind to commit suicide, but looking at the small child, she withdrew the attempt.

Having unable to tolerate the harassment made by the respondents, the petitioner left the matrimonial house and filed a complaint on 04-11-2008.

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The respondent No.1 is working as Commission Agent and earns

Rs.20,000/- per month. He has got two houses and other moveable properties. The petitioner is unable to maintain herself and her child, therefore, she craves for maintenance of Rs.10,000/- per month to her and her minor child.

7. The respondents submitted the counter denying the averments made in the petition. After the marriage, the petitioner did not stay even for a fortnight in the house of the respondents. She had more attachment towards her parents. She used to quarrel with the respondent No.1 for petty reasons. She used to leave the matrimonial house very often without informing the inmates of the houses. Even the birth of the baby was not informed to the respondent No.1. Till the date of filing of the petition, the naming ceremony was also not performed.

The contention that she left the matrimonial house unable to tolerate the harassment is incorrect. Several panchayats were held in the presence of elders but she refused to join the society of the respondent

No.1. On the other hand, she requested the elders that she wants divorce from the respondent No.1. At the instigation made by her uncle Kareem and her brothers the petitioner filed criminal complaint against all the family members with an intention to extort money.

The respondent No.1 is a clerk-cum-sales man in Cut Piece cloth shop. He gets meager salary which is not sufficient to maintain himself and his parents. The petitioner knew Embroidery, Painting and Jerry

Work. She earns not less than Rs.4,000/- per month. The respondent

No.1 is not having source of income to maintain a separate family. The claim of Rs.10,000/- per month made by the petitioner is exorbitant.

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Since the petitioner herself deserted the respondents No.1, she is not entitled for maintenance. Hence, the petition may be dismissed.

8. On behalf of the petitioner she is examined as PW1 and her father is examined as PW2 and an elder to the marriage is examined as PW3.

On behalf of the respondents, the respondent No.1 is examined as RW1 and on his behalf RWs.2 and 3 are also examined.

9. When the evidence adduced on behalf of both the parties is carefully examined, there is no dispute with regard to the marriage.

When a woman apprehends threat of physical assault and harassment at the hands of the husband and his relatives, she can seek protection under the provisions of Domestic Violence Act. The trial Court has evaluated the evidence adduced on behalf of both parties and felt that she was compelled to leave the society of the respondents because of the harassment made by them. It is also felt by the trial Court that there is threat of physical assault by the respondents to the petitioner. Though the independent evidence who is examined as RW3 it is elicited that the respondents were not providing proper food to the petitioner and she was being subjected to physical and mental harassment. In the cross- examination of RW1 it is elicited that the petitioner became pregnant 10 months after the marriage. This fact would clearly suggest that the petitioner continued to stay in the house of the respondents for a considerable period. Therefore, the contention of the respondents that the petitioner stayed with him hardly for a period of fortnight is not an acceptable contention. It is elicited that the respondents were not giving money for the treatment of the petitioner during her pregnancy. On the other hand it is categorically stated by the respondent No.1 that he

pronounced Talak in the presence of Hafeez Sab and thereby he took

7 divorce. Thus, the respondent No.1 has subjected the petitioner to physical and mental cruelty. Therefore, the orders passed by the learned

Magistrate giving protection to the petitioner U/Sec.12 of the Act and

directing the respondents not to harass the petitioner is justified. I do not see any irregularity in the finding of the trial Judge saying that the petitioner should not be subjected to harassment on any pretext either by demanding additional dowry or on any other pretext.

10. The trial Court has awarded maintenance of Rs.5,000/- per month to the petitioner and her child. In the cause title of the petitioner, the name of the child is not mentioned. For this the respondent No.1 himself gave explanation that as on the date of filing of the case, the naming ceremony did not take place. The fact remains that the petitioner gave birth to a female baby and she is staying with her. It is the duty of the petitioner being mother to bring-up the child by giving proper nourishment etc.,

11. The gist of the contention of the respondent No.1 is that because he gave divorce to the petitioner she cannot claim maintenance.

Whether the divorce is proved or not is also a question. The respondent

No.1 has filed Talaknama marked as Ex.R2. Along with Talaknama, the respondent No.1 sent a D.D. for Rs.1,500/- which is marked as Ex.R3.

The covering letter is marked as Ex.R4. Ex.R5 is the true translation of

Talaknama, Ex.R6 is the translation of the letter written by the respondent

No.1 under Ex.R4. RW1 in the cross-examination has stated that he

pronounced Talak in the presence of Hafeez Sab and after pronouncement

of Talak, he sent a copy of the Talaknama and D.D. to the address of the petitioner. The petitioner did not receive the said cover and returned the same. Thus, the petitioner has not accepted the Talak. Whether the Talak 8 is pronounced strictly as per the provisions of Law or not cannot be decided in this petition. The ambit of this petition is also very limited.

However, the fact remains that the respondent No.1 divorced the petitioner and living separately. In view of the Judgments of the Hon’ble

Supreme Court, now it is settled that even a Muslim Woman who has been divorced by her husband can claim maintenance under the provisions of separate enactment. Therefore, it is to be examined whether the award of maintenance of Rs.5,000/- per month to the petitioner is justified or not.

12. In support of the documentary evidence filed by the respondents the respondent No.1 has chosen to examine the attestor of the divorce deed as RW2. He categorically stated that he is one of the attestors to the divorce deed. He stated that the contents of the divorce are in Urdu

Language and they were read over to him and explained before he attested the document. It was suggested to RW2 that the said divorce is invalid, since it was not accepted by the petitioner. RW3 is the person who has translated the divorce deed.

13. It is elicited in the cross-examination of RW1 that he is working in a cloth shop. He denied the suggestion that he has got two houses. He is an able bodied person and he has got capacity to earn not less than

Rs.15,000/- per month by doing various jobs. The petitioner’s father who is examined as PW2 has stated that he has no separate source of income and eking-out his livelihood with great difficulty. Hence, such a person cannot maintain the petitioner and her child.

14. The respondent No.1 contended that the petitioner knew

Embroidery and painting and she earns Rs.4,000/- per month. No positive evidence is produced by the respondent No.1 to substantiate his 9 contention that the petitioner has knowledge of embroidery work and she earns Rs.4,000/- per month. Therefore, the contention of the respondent

No.1 cannot be accepted. The petitioner also failed to produce sufficient evidence to substantiate that the respondent No.1 has got two houses and income from those houses. It is also not proved by the petitioner that the respondent No.1 earns Rs.15,000/- to Rs.20,000/- per month. For a person who is working in the cloth shop expecting such an amount per month as salary is not correct. The contention of the petitioner that he is working as Commission Agent is also not established. The trial Judge did not consider the earning capacity of the respondent No.1. Though there was no positive evidence to substantiate that the respondent No.1 is earning Rs.15,000/- to Rs.20,000/- per month without proper appreciation of evidence and without assigning proper reasons, the learned Magistrate has awarded maintenance of Rs.5,000/- per month. When the earnings of the respondent o.1 is less than Rs.5,000/- per month, it is not possible for him to pay maintenance of Rs.5,000/- per moth to the petitioner. Since the orders passed by the Magistrate is not supported by valid and sound reasons for awarding Rs.5,000/- per month as maintenance, I am of the view that the orders deserve to be modified by awarding reasonable maintenance to the petitioner. Having appreciated the over all circumstances of the case and particularly the earnings of the respondent

No.1, I am of the view that it would meet the ends of justice, if the petitioner is awarded maintenance of Rs.2,000/- per month to the petitioner and Rs.1,000/- towards the maintenance of the child. Thus, the petitioner and her child are entitled for maintenance of Rs.3,000/- per month from the date of the petition. Accordingly the points are answered.

15. In the result, the Appeal is partly allowed and the respondent

No.1 is directed to pay maintenance of Rs.3,000/- per month to the 10 petitioner and her child from the date of the petition. Rest of the orders passed by the learned Judicial Magistrate of First Class, Adoni, in D.V.C.

No.3/2008 dated 25-06-2012 are confirmed.

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

pronounced by me in open Court this the 16th day of April, 2015.

II ADDITIONAL SESSIONS JUDGE,

KURNOOL AT ADONI.

IN THE COURT OF THE II ADDITIONAL SESSIONS JUDGE: KURNOOL AT

ADONI.

PRESENT: SRI. G.V. SUBRAHMANYAM, II ADDITIONAL SESSIONS JUDGE.

THURSDAY, THE 30TH DAY OF APRIL, 2015.

CRIMINAL APPEAL NO.53/2014 .

From what court the JUDICIAL MAGISTRATE OF FIRST CLASS appeal is preferred.

COURT, ADONI.

No. of the case in that CALENDAR CASE NO.381/2010. Court. Name & description of Boya Hussein @ Boya Lakshmanna, S/o. the appellant. Boya Somanna, 30 years, Peddakadubur

Village and Mandal.

The sentence and Law In the result, the accused is found guilty for under which it was the offence U/Sec.324 I.P.C. convicted imposed in the lower U/sec.248 (2) Cr.P.C. and sentenced to Court. under go Rigorous Imprisonment for a period of 3 months and to pay fine of Rs.500/- in default to undergo Simple Imprisonment for one month. The remand period if any undergone by the accused shall be set off U/sec.428 Cr.P.C. Whether confirmed, modified or reversed and

MODIFIED.

if modified, the modification. Date of presentation. 10-04-2014.

Date of filing. 17-04-2014.

Date of notice issued to 19-04-2014. appear. Date of bail bond if --- appellant has/have been let out on bail. Date of Order to appear. 04-07-2014.

Date of hearing: 21-04-2015.

Date of Judgment. 30-04-2015.

This appeal coming on 29-09-2014 for final hearing before me for hearing in the presence of B.C. Narasimhulu, Advocate for the appellant and Additional Public Prosecutor for the State and upon perusing the grounds of appeal and the record of the evidence and the proceedings and after hearing both sides; this Court delivered the following:- 2 : J U D G M E N T :

This is an appeal filed against the Judgment of conviction passed by the learned Judicial Magistrate of First Class, Adoni, in C.C.No.381/2010

dated 24-02-2014, wherein the accused is found guilty for the offence

U/Sec.324 I.P.C. convicted U/sec.248 (2) Cr.P.C. and sentenced to under go Rigorous Imprisonment for a period of three months and to pay fine of

Rs.500/- in default to undergo Simple Imprisonment for one month. The remand period if any undergone by the accused shall be set off U/sec.428

Cr.P.C. Aggrieved by the said Judgment, the present appeal is filed contending that the Judgment of the trial Court is against the law, weight of evidence and probabilities of the case. The trial Court did not appreciate that PWs.1 and 3 are no other than the wife and husband and they are interested witnesses. At the same time, the trial Court failed to appreciate the fact that PWs.2 and 4 turned hostile and did not support the case of the prosecution. So, basing on the evidence of interested witnesses only, the conviction is based. Therefore, the said Judgment is not sustainable in law.

The trial Court failed to appreciate that PW1 without going to the

Police Station straightaway went to his house, and after consultation with the relatives and others, he came to the police station and filed the complaint. The contradiction, which is marked as Ex.D1 is not properly appreciated by the trial Court. For all these reasons, the Judgment of the trial Court is liable to be set aside and the appellant/accused deserves to be acquitted.

2. The learned Additional Public Prosecutor vehemently opposed the ground of appeal and contended that the trial Court has correctly 3 evaluated the evidence adduced on behalf of the prosecution and arrived at the just conclusion and the conviction and sentence passed by the trial

Judge, is justified. Hence, the appeal may be dismissed.

3. Now the points for consideration are:

1) Whether the prosecution could bring home the guilt of the accused for the offence U/sec.324 I.P.C. beyond all reasonable doubt?

2) Whether the Judgment of the trial Court is sustainable in law and on facts?

4. To answer the points for consideration, I have noted down the brief facts of the case as per the chargesheet and the evidence adduced on behalf of the prosecution.

5. I have re-analyzed the evidence adduced on behalf of the prosecution for answering the appeal. The brief facts of the case as per the chargesheet are that on 06-07-2010 at about 6-0 p.m. at

Peddakadubur bus-stop PW1 asked the accused who is an auto driver to take him to Kallukunta Village quickly, but the accused refused. Then a quarrel took place in between them. Suddenly, the accused took an iron road and beat PW1 on his head. Basing on the complaint given by PW1, the S.I. of Police registered a case in Cr.No.46/2010 U/sec.324 I.P.C. and investigated into. He referred PW1 to the hospital and examined the necessary witnesses and filed the chargesheet U/sec.324 I.P.C.

6. To bring home the offence U/sec.324 I.P.C. against the accused, the prosecution has chosen to examine 6 witnesses. PW1 is the defacto complainant and injured. He stated that he started from Adoni to

Kallukunta village on a motorcycle. After crossing Baichigeri cross-roads an auto was found. Since it was raining, he requested the auto driver who is the accused herein to take his wife and other passengers to 4

Peddakadubur. Initially he said that he would not go. After some passengers came there, he said that he would take them. But he did not move the auto for half an hour. Then an argument took place in between

PW1 and the accused. Suddenly he took an iron rod from the auto and beat PW1 on his head. The complaint given by him is marked as Ex.P1.

In the cross-examination the contradiction from his statement is marked as Ex.D1. He denied that he did not state to the police that from the scene of offence he went to his hut, dropped his wife in the house and later he came to the police station and gave the complaint. Except this contradiction, no other material is elicited to disbelieve the version of

PW1.

7. PW2 is one of the co-passengers in the auto. She has stated that there was an altercation in between PW1 and the accused, but she did not observe as to how PW1 has received the injuries.

8. PW3 being the wife of PW1 corroborated with the evidence of

PW1 and stated that the accused having altercated with PW1 suddenly took an iron rod and assaulted PW1. At that PW1 received an injury.

9. PW4 is also a co-passenger but she said that she does not know any thing about the facts of this case.

10. PW5 is the Doctor who examined PW1 and found a lacerated injury on the parietal region.

11. PW6 is the investigating officer who reiterated the contents of the chargesheet. In the cross-examination also his testimony is not shaken.

5

12. The trial Judge has elaborately discussed the evidence adduced on behalf of the prosecution and believed the evidence of PWs.1 and 3.

Just because PWs.1 and 3 are interested witnesses their testimony cannot be thrown away. It is settled law that interested witnesses will not spare the real culprits and falsely implicate the unconcerned persons. When the incident took place it was raining. The other passengers were to go to their villages. But PW1 had requested the accused to take PW3 to

Peddakadubur, because it was raining. Because the accused was delaying in taking the passengers, there was heated altercation. As far as heated altercation in between PW1 and the accused is concerned, the evidence of

PW2 also corroborated. Thus the evidence of PWs.1 to 3 is corroborated to the extent that an incident that has taken place at that particular place.

13. The contradiction elicited in the evidence of PW1 will not go to the root of the case. No doubt, when the police station is nearby to the scene of offence, normally one will go to the police station to lodge a complaint. But here is the case, where it was raining. PW3 is a woman.

PW1 would have felt that taking the wife also to the police station is not required. Therefore, he would have gone to the village, dropped her at his village and came back to the police station and lodged the complaint.

The delay is not fatal in this case. The delay of 1 or 2 hours in lodging the complaint cannot weaken the case of the prosecution, particularly in a case of this nature.

14. The medical evidence is also corroborated with the ocular evidence of PWs.1 and 3. The Doctor found a lacerated injury on the parietal region of PW1. Even though it is suggested that the injury is possible by falling from the motorcycle, he denied the same. That there is corroboration in between ocular and medical evidence.

6

15. The trial Court evaluated the evidence adduced on behalf of the prosecution on proper lines and arrived at a just conclusion. Therefore, as far as conviction is concerned, it requires no interference.

16. I have considered the quantum of sentence. The accused was in judicial custody for a period of 20 days before he was enlarged on bail. It can be seen that out of sudden provocation the incident had happened.

The incident is of the year 2010. For the last 5 years the accused is going round the Court. Therefore, the judicial period of remand suffered by the accused for 20 to 25 days would be sufficient punishment. Having appreciated all these circumstances, instead of confirming the sentence of 3 months imprisonment, I feel it proper to modify the same into fine.

Accordingly the points are answered.

17. In the result, the appeal is partly allowed confirming the conviction but modifying the sentence passed by the learned Judicial

Magistrate of First Class, Adoni, in C.C.No.381/2010 dated 24-02-2014,

directing the accused to pay fine of Rs.1,000/- in default to under go

Simple Imprisonment for one month for the offence U/sec.324 I.P.C.

Since, the accused paid Rs.500/- before the trial Court, on payment of

Rs.500/- he shall be let off. The unmarked properties, if any, are ordered to be destroyed after expiry of appeal time.

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

pronounced by me in open Court this the 30th day of April, 2015.

II ADDITIONAL SESSIONS JUDGE,

KURNOOL AT ADONI.

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE: KURNOOL AT

ADONI.

PRESENT: SRI. G.V. SUBRAHMANYAM, II ADDITIONAL DISTRICT JUDGE.

WEDNESDAY, THE 15TH DAY OF APRIL, 2015.

ORIGINAL SUIT NO.36/2014.

N.P.Veeranna. … Plaintiff.

Versus.

K. Srinivasulu. … Defendant.

This is a suit for recovery of Rs.11,40,533/- being the principal and interest due by the defendant to the plaintiff under a promissory note

dated 06-01-2012 for Rs.7,00,000/- agreeing to repay the same with

interest at 24% p.a. on demand. Inspite of repeated demands made by the plaintiff the defendant did not repay the amount due. Hence the suit and for costs.

This suit coming on this day for final hearing before me in the presence of Sri. K. Hanumesh, Advocate for the Plaintiff and the defendant having remained exparte, and after hearing the plaintiff this Court delivered the following:

: J U D G M E N T :

Plaintiff is present and examined as PW1. Ex.A1 is marked. Suit claim is proved. Hence, the suit is decreed for a sum of Rs.11,40,533/- along with costs and interest at 12% p.a. from the date of suit till the date of decree and thereafter at 6% p.a. over the principal amount of

Rs.7,00,000/- till complete realization.

Pronounced by me in open Court this the 15th day of April, 2015.

II ADDITIONAL DISTRICT JUDGE,

KURNOOL AT ADONI.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED.

FOR PLAINTIFF: FOR DEFENDANT:

PW1: N.P. Veeranna. -- NONE –

EXHIBITS MARKED.

FOR PLAINTIFF:

Ex.A1: Promissory note dated 06-01-2012 executed by the defendant in favour of the plaintiff for Rs.7,00,000/-.

FOR DEFENDANT: -- NIL –

II A.D.J.

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE: KURNOOL AT

ADONI.

PRESENT: SRI. G.V. SUBRAHMANYAM, II ADDITIONAL DISTRICT JUDGE.

WEDNESDAY, THE 15TH DAY OF APRIL, 2015.

ORIGINAL SUIT NO.36/2014.

N.P. Veeranna, S/o. N.P. Anjinaiah, Hindu, 60 years, D.No.2/68, College Road, Upstairs, Adoni. … Plaintiff.

Versus.

K. Srinivasulu, S/o. K. Narayanappa, Hindu, 35 years, D.No.2/122, Rathana Village, Pathikonda Mandal. … Defendant.

This is a suit for recovery of Rs.11,40,533/- being the principal and interest due by the defendant to the plaintiff under a promissory note

dated 06-01-2012 for Rs.7,00,000/- agreeing to repay the same with

interest at 24% p.a. on demand. Inspite of repeated demands made by the plaintiff the defendant did not repay the amount due. Hence the suit and for costs.

Plaint presented on 21-08-2014 and filed on 21-08-2014. J.V. of

Rs.11,40,533/- and a Court fee of Rs.13,926/- is paid U/Sec.20 of A.P.C.F.

Act.

This suit coming on this day for final hearing before me in the presence of Sri. K. Hanumesh, Advocate for the Plaintiff and the defendant having remained exparte, and after hearing the plaintiff this Court order and decree:

1) That the defendant do pay to the plaintiff the sum of

Rs.11,40,533/- with interest at 12% p.a. from the date of the plaint i.e., 21-08-2014 till 15-04-2015 on the principal amount of

Rs.7,00,000/- and thereafter at 6% p.a. till the date of realization;

2) That the defendant do also pay the sum of Rs.31,961/- to the plaintiff being the costs of this suit.

Given under my hand and the seal of the Court this the 15th day of April, 2015.

II ADDITIONAL DISTRICT JUDGE,

KURNOOL AT ADONI.

MEMO OF COSTS.

For Plaintiff: For Defendant:

Stamp on Plaint Rs.13,926-00

Stamp on Vakalat Rs. 2-00

Stamp on Process Rs. 120-00

P.W. Charges Rs. 5-00 -- NIL --

Advocate Fees Rs. 17,858-00 (Not Certified)

Typing Charges Rs. 50-00 ----------------- Total Rs.31,961-00 ==========

II A.D.J.