Smt Harisha

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IN THE COURT OF ADDITIONAL JUDICIAL FIRST CLASS MAGISTRATE ::

SANGAREDDY

PRESENT: Smt Harisha Addl. Judicial Magistrate of First Class Sangareddy

DATE: 27th day of April, 2017

C. C. No. 770 of 2015

Between:-

The State through P.S. Indrakaran. … Complainant A n d

A-1) Ganesh Yadav S/o late Mallaiah, Aged 55 yrs., Occu: Business, R/o Alwal, Hyderabad.

A-2) Guddi Mallesh @ A. Mallesh S/o Yadaiah, Aged 35 yrs., Occu: Business, R/o Indrakaran village of Sangareddy mandal,

A-3) Kothapally Krishnaiah S/o Mallaiah, Aged 50 yrs., Occu: Business, R/o Indrakaran avillage, Sangareddy Mandal,

A-4) Auto Mallesh @ J. Mallesh S/o Mallaiah, Aged 50 yrs., R/o Kyasaram village, Patancheru mandal. …Accused

This case is coming up before me for final hearing in the presence of learned A.P.P.O. for the Complainant/State and of Sri N. Yadagiri, and Sri G.Nawajulu, Learned Counsel for the Accused, upon perusing the material papers on record and upon hearing both sides, and having stood over for consideration, till this day, the Court delivered the following:-

J U D G M E N T

1.The Sub Inspector of Police, P.S. Indrakaran filed charge sheet against the accused for the offences punishable under Sections 447, 427, 504, 506 of I.P.C., in

Cr. No. 31 of 2015 of P.S. Indrakaran.

2.The brief facts of the charge sheet are that on 23-3-2015 at 19-00 hours

LW-1 Bindeshwar Singh S/o Kameshwer, Occupation Defence Security Cops (Indian Army) has lodged a report before Police, contended in his report that he had purchased 3 plots admeasuring 300 Sq.yards each plot 100 Sq.yards i.e. Plot

No.328 in Sy.No.123 Part-B, an extent of 100 Sq.yards is registered on his name 2 and another two plots i.e. Plot No. 328 in Sy.No.123 part-A an extent of 100

Sq.yards and Plot No.409 in Sy.No. 120 part-A an extent of 100 Sq.yards are registered on the name of his son Avadesh Kumar and as soon as his son in law

Sanjay Kumar also purchased the one plot No.409 in same Sy.No.120 part(B) an extent of 100 Sq. yards at in same Teja housing venture in the limits of Indrakaran village, further both combined construct the boundary wall to their plots for safety, often they used to visit their plots. In this regard on 14-1-2015 the complainant and his son in law Sanjay Kumar came to plots and they noticed that their plots boundary walls are destroyed, found some persons are criminally trespassed and causing damage to boundary wall, on enquiry came to know the names of trespassers, damaged walls i.e. the accused herein, and they abused them in filthy language and threatened them with dire consequences ans they ave filed SC & ST cases on them and tried to encroach upon his plots illegally and grab the same, and finally requested to take necessary action. Basing on the said report LW-5 registered a case in Crime No. 31/2015, for the offences U/s 447, 427, 504, 506 I.P.C. and took up the investigation.

3.During the course of investigation, LW-5 examined and recorded the statements of LW-1 and LW-2 who are victims in the case, on 24-3-2015 visited the scene of offence, found one room and boundary walls are damaged, secured the presence of panch witnesses Lws 3 and 4, conducted scene of offence panchanama, drafted rough sketch in their presence. Lws 1 and 2 submitted sale deeds and registered link documents of their plots in Sy.No.120 and 123 in the limits of Indrakaran village. While investigation was in progress on 10-5-2015 the accused A-1 to A-4 were voluntarily surrendered before Court, and enlarged on bail, in this case A-1 to A-4 not submitted any documents pertaining to the said involved land to prove their ownership particulars. The investigation reveals that the accused A1 to A4 committed an offences punishable U/s 447, 427, 504, 506

I.P.C. and after completion of investigation, he filed charge sheet against the accused A-1 to A-4 for the offence punishable U/s 447, 427, 504, 506 I.P.C.

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4. On appearance of the accused before the Court, the accused were furnished with all copies of documents as provided u/s 207 Cr.P.C. The accused were examined u/s 239 Cr.P.C. for the offences punishable U/s 447, 427, 504, 506 I.P.C.

Accusation for the offences U/s 447, 427, 504, 506 I.P.C., read over and explained to the accused for which, the accused denied, pleaded not guilty and preferred a trial.

5.The prosecution to prove its case, examined PW-1 to PW-4 and got marked

Exs.P-1 to P-12.

6.After closure of prosecution side evidence the accused are examined U/s 313 Cr.P.C. with regard to the incriminating material available against them in the prosecution evidence, they denied the evidence of witnesses and they stated that they did not have any evidence or witnesses on their behalf.

8.Heard arguments of both sides.

9.Perused the records.

10.Now, the point for determination is whether the prosecution had proved the guilt of the accused No.1 to 4 for the offences punishable U/s 447, 427, 504, 506 I.P.C. beyond all reasonable doubt?

POINT:-

11.PW-1 who is the defacto complainant/victim has stated in his chief examination before this Court that LW-2 is his son in law, he can identify all the accused in this case, he purchased two plots in Sy.No.123, admeasuring 100 yards, another plot bearing No.328 and also other two plots in the name of his son admeasuring 100 yards in Sy.No.123 part, plot No.328 and other plot

No.409 in Sy.No.120 plot at Teja housing venture near the outskirts of

Indrakaran village, even LW-2 also purchased 100 yards of plot in Sy.No.120 part B, plot No.409. They used to visit their plots then and there and in the month of January, 2015 when they went to plots, they observed somebody damaged the compound wall of their plots, on enquiry he came to know that all 4 the accused did the same, when he questioned the accused, the accused threatened him, abused him in filthy language, he lodged Ex.P-1 report.

12.This witness during the cross examination by the learned defence counsel stated that he purchased land in Sy.No.123 in the year 2007, he did not obtain written permission from GP for construction of compound wall but orally he took permission, he submitted the lay out plan before the Court, he did not witness damage of compound wall by accused, he know all the accused, he did not obtain permission for conversion of agricultural land in to non agricultural land. He do not know the names of the persons who informed him regarding the offence committed by the accused. He denied the further suggestions put to him by the learned defence counsels for the accused.

13.PW-2 who is cited as witness/victim has stated in his chief examination

before this Court that PW-1 is his father in law, in the year 2004 PW-1 has

purchased plots in Sy.No.123 admeasuring 100 yards each in the name of PW-1 and his son in Teja housing venture situated in the outskirts of Indrakaran village, even he too purchased plot admeasuring 100 yards in Sy.No.120, they got constructed a compound wall to their plots, they used to visit then and there, and in the month of January, 2015 when they went to plots, they observed somebody damaged the compound wall of their plots, on enquiry they came to know that all the accused did the same, when they questioned the accused, the accused threatened them, abused them in filthy language, PW-1 lodged Ex.P-1 report on 23-3-2015 before Police.

14.This witness during the cross examination by the learned defence counsel deposed that he did not witness the damage of compound wall, there was no Grampanchayath permission for construction wall, PW-1 did not file civil case. He denied the further suggestions put to him by the learned defence counsels for the accused.

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15.PW-3 who is cited as panch witness for the proceedings of scene of offence panchanama has deposed in his chief examination before this Court that he knows LW-3, about 2 years back he along with LW-3 have attended the proceedings of panchanama of scene of offence, rough sketch under Ex.P-8 and

Ex.P-9 respectively in the land in Sy.No.123, situated at outskirts of Indrakaran village.

16.This witness during the cross examination by the learned defence counsel stated that he came to know regarding Sy.No. From V.R.O., he was called by Police for attending the proceedings of Ex.P-8 and Ex.P-9. He denied the further suggestions put to him by the learned defence counsels for the accused.

17.PW-4 the Investigating Officer has deposed before this Court that on 23- 3-2015 at 19.00 hours he received Ex.P-1 from PW-1 basing on which he registered a case in Crime No.31 of 2015 and issued FIR, and he took up the investigation and he examined PW-1 and PW-2 at Police Station, and went to the scene of offence and conducted proceedings of scene of offence panchanama along with rough sketch under Ex.P-8 and Ex.P-9, subsequently he issued 91 Cr.P.C. notice to PW-1 and he furnished the true copy of sale deeds bearing No.12287/2011, dated 30-12-2011 and 13288/2011, dated 30-12-2011 under Ex.P-11 and Ex.P-12 respectively and the accused surrendered before

Court, and after completion of investigation filed charge sheet.

18. During the cross examination he admitted that there is a delay of 68 days in lodging report. He further admitted that there is no permission of

Grampanchayath, he did not obtain photographs of scene of offence. He admitted that there is no eye witness to the incident, there are no houses near scene of offence. He denied the suggestion of learned counsel for the accused 6 that accused never committed any offence and they are falsely involved in this case.

19.The learned APP argued that case of prosecution is proved before the

Court by the evidences of Pws 1 to 4 beyond all reasonable doubts, hence the accused are liable for conviction. She prayed the Court to convict the accused.

20.The learned counsel for the accused argued that prosecution did not prove alleged offences against the accused herein, hence the all the accused are entitled for acquittal, he prayed the Court to acquit the accused.

21.In this case the offences alleged against the accused are that they have committed the offences punishable U/Sections 447, 427, 504, 506 I.P.C. which read as under:

Section 447 of IPC reads as follows:

Whoever commits criminal trespass shall be punished with imprisonment or either description for a term which may extend to three months, with fine or which may extent to five hundred rupee, or with both.

Section 427 of IPC reads as follows:

Whoever, commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Section 504 of IPC reads as follows:

Whoever, intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Section 506 of IPC reads as follows:

Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

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22.On perusal of record it is seen that this is a case in Crime No.31 of 2015

dated 23-3-2015 based on the report lodged by defacto complainant stating that

he is working in Defence Security Force Corporation in Indian Army, in the year 2004 he purchased 100 yards of land in plot No.328 in Sy.No. 123 Part, situated at

Indrakaran village outskirts pertaining to Teja Housing venture and he also purchased two plots bearing plot No.328, admeasuring 100 yards, Plot No.409 in

Sy.No.120-A, admeasuring 100 yards, even his brother in law purchased 100 yards in Plot No.409 in Sy.No.120-B, they used to visit their plots now and then. On 14- 1-2015 he along with his brother in law by name Sanjeev went to Teja venture and they observed that the compound wall of their plots were caused damage. On enquiry he came to know that the neighbors plot owners by name Ganesh Yadav and Guddi Mallesh and Auto Mallesh etc. did the same, when they questioned them meanwhile all of them abused them in filthy language, threatened them that they will file SC/ST case against them and threatened to face with dire consequences.

23.During the trial the complainant examined as PW-1, he almost reiterated the contents of his report i.e. Ex.P-1 before the Court. During the cross examination deposed that he did not obtain written permission from

Grampanchayath for construction of compound wall, even he witnessed the damage of compound wall by the accused, he did not obtain permission for conversion of agricultural land in to non agricultural land, he denied the suggestions put to him by the counsel for the defence.

24.During the course of trial PW-2 who is the brother in law of PW-1 is examined as PW-2, he corroborated the version of PW-1. During his cross examination he deposed that he did not witness the damage of compound wall, there was no grampanchayath permission for construction of compound wall. He denied the suggestions.

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25.PW-3 is one of the panch witnesses for panchanama of scene of offence and rough sketch totally supported the version of prosecution. During cross examination he denied the suggestions.

26.Finally PW-4 is the then Sub Inspector of Police who received Ex.P-1 from

PW-1 issued FIR, conducted investigation i.e., examined PW-1 and PW-2, conducted the proceedings of Ex.P-8 and Ex.P-9, even he collected Ex.P-11 and

Ex.P-12, after completion of investigation he filed charge sheet before the Court.

27.During the cross examination he admitted that there is delay of (68) days in lodging Ex.P-1, there was no permission from the Grampanchayath, he did not took photographs of scene of offence. He denied the suggestions put to him by cousel for the defence.

28.On considering the total evidence on record it is seen that by the documents filed by the complainant herein under Ex.P-2 which is a sale deed standing in the name of son of PW-1 regarding purchase of 100 yards of land in plot No.328-A, Ex.P-3 is the sale deed showing purchase of land by Teja Housing

Estate and showing the purchase of land by PW-1, Ex.P-4 is also standing in the name of son of PW-1 showing purchase of 100 Sq.yards of land, Ex.P-5 is also a sale deed standing in the name of one Sanjeev Kumar i.e. PW-2 showing purchase of 100 Sq.yards of land. Ex.P-6 is the Encumbrance Certificate pertaining to land in Sy.No.120/E, Plot No.409-E, Ex.P-7 is Encumbrance Certificate pertaining to land in Sy.No.120-E plot No.409/A.

29.The above said documents are showing that Pws 1 and 2 have purchased their respective lands as above mentioned, even some of the land was purchased in the name of son of PW-1 also, but in this case prosecution has proved that all the accused persons damaged the compound wall pertaining to Pws 1 and 2, abused them, committed criminal trespass and threatened them etc. Admittedly 9 there is no eye witness to the alleged incident even as per evidence of Pws 1, 2 and 4 there is no Grampanchayath permission for construction of compound wall as alleged, even that there is no satisfactory reason given by prosecution that when Grampanchayath has not granted permission how compound wall was raised to the plots of Pws 1 and 2, even the alleged incident took place on 14-1- 2015, but Ex.P-1 was lodged on 23-3-2015 i.e. after a long gap of more than two months of alleged incident, there is no proper explanation given by either PW-1 or Investigating Officer why the delay occurred in lodging of Ex.P-1. In my view if at all there was damage to the property of Pws 1 and 2 they ought to have approached immediately either the police, the criminal court or civil court for the remedy available to them. But in this case PW-1 lodged report before Police after nearly more than two months after the alleged incident, the Investigating Officer did not collect any photographs pertaining to scene of offence, to show that on the relevant day of incident there was damage to the compound wall of the plots pertaining to Pws 1 and 2 and in my view basing on the evidence placed before the Court I feel that prosecution has utterly failed to prove the guilt of the accused beyond all reasonable doubt. Hence all the accused are entitled for benefit of doubt.

In the result, all the accused A-1 to A-4 are not found guilty for the offence punishable under Sections 447, 427, 504, 506 of I.P.C. accordingly they are acquitted U/s 255(1) Cr.P.C. The bail bonds of the accused shall stand canceled, the sureties are hereby discharged. Un-marked case property if any shall be destroyed after expiry of appeal time.

Dictated to the Stenographer (Gr.II), transcribed by him, corrected and

pronounced by me in the open Court, on this the 27 th day of April, 2017.

ADDL. JUDICIAL MAGISTRATE OF FIRST CLASS

SANGAREDDY

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APPENDIX OF EVIDENCE

Witnesses examined for Prosecution:Defence: None.

PW-1: Bindeshwar Singh

PW-2: Sanjay Kumar

PW-3: Narender

PW-4: M. Praveen Kumar Reddy, SIP I.O.

EXHIBITS MARKED FOR:

Prosecution:Defence: None.

Ex.P-1: Report/Complaint

Ex.P-2: Copy of document bearing No. 7287/10

Ex.P-3: True copy of document bearing No. 12874/04,

Ex.P-4: True copy of sale deed bearing document No. 13288/11, Dt.30-12-2011

Ex.P-5: True copy of document bearing No. 13287/11

Ex.P-6: Certified copy of Encumbrance Certificate, Dated 9-2-2016 pertaining to Sy.No.120/B, Plot No.409-B

Ex.P-7: Certified copy of Encumbrance Certificate, Dated 9-2-2016 pertaining to Sy.No.120/A, Plot No.409/A

Ex.P-8: Scene of offence panchanama

Ex.P-9: Rough sketch

Ex.P-10: First Information Report

Ex.P-11: True copy of sale deed bearing No.13287/2011, Dt. 30-12-2011

Ex.P-12: True copy of sale deed bearing No.13288/2011, Dt. 30-12-2011

MATERIAL OBJECTS:

NIL J.M.F.C.

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CALENDER AND JUDGMENT

DISTRICT; MEDAK

CALENDER CASES TRIED BY THE ADDL. JUDL. FIRST CLASS MAGISTRATE;

AT SANGAREDDY

Date of offence:prior to 23-3-2015

Report or Complaint:23-3-2015

Apprehension of Accused:10-5-2015 (surrender)

Commencement of trial:26-10-2015

Close of trial:02-3-2017

Sentence or order:27-4-2017

Explanation of delay and remarks:----

JUDGMENT IN CALENDER CASE NO. 770 of 2015 ON THE FILE OF THE ADDL.JUDL.FIRST CLASS MAGISTRATE:: AT SANGAREDDY

COMPLAINANT: P.S. Indrakaran

ACCUSED:

A-1) Ganesh Yadav S/o late Mallaiah, Aged 55 yrs., Occu: Business, R/o Alwal, Hyderabad.

A-2) Guddi Mallesh @ A. Mallesh S/o Yadaiah, Aged 35 yrs., Occu: Business, R/o Indrakaran village of Sangareddy mandal,

A-3) Kothapally Krishnaiah S/o Mallaiah, Aged 50 yrs., Occu: Business, R/o Indrakaran avillage, Sangareddy Mandal,

A-4) Auto Mallesh @ J. Mallesh S/o Mallaiah, Aged 50 yrs., R/o Kyasaram village, Patancheru mandal.

OFFENCE: U/s 447, 427, 504, 506 of I.P.C.

PLEA OF ACCUSED: Pleaded not guilty

FINDING OF THE JUDGE: not found guilty

SENTENCE OR ORDER: Acquitted U/s 255(1) Cr.P.C.

Addl.Judl.First Class Magistrate Sangareddy To The Hon’ble I Addl. District & Sessions Judge, Medak at Sangareddy.

Dis.No.

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IN THE COURT OF ADDITIONAL JUDICIAL FIRST CLASS MAGISTRATE ::

AT SANGAREDDY

PRESENT: Smt. HARISHA, B.A. LL.M., Addl. Judicial Magistrate of First Class Sangareddy

DATE: 26th DAY OF APRIL, 2017

C.C. No. 1041 of 2015

Between:-

Kompally Bikshapathi S/o Laxmaiah, Aged about 55 yrs., Occu: Business, R/o H.No.3-48, Ameenpur village, Patancheru Mandal, Medak District. … Complainant

A n d

A. Amrutha Rao S/o Narayana Rao, Aged 50 yrs., Occu: Business, R/o H.No.10/132/2, Vemukunta, Chandanagar, Serilingampally Mandal, Rangareddy, Medak District. …Accused

This case is coming up before me for final hearing in the presence of Sri Ch. Bhoopathi, Counsel for the Complainant, and Sri M. Venkatesham, Counsel

for the Accused, upon perusing the material papers on record and upon hearing

both sides, and having stood over for consideration, till this day, the Court delivered the following:-

J U D G M E N T

1.The complaint is filed against the accused for the offence punishable under

Section 138 of Negotiable Instrument Act.

2.The case of the complainant is that the accused is well known to him since long time as both of them are in business line, due to that acquaintance the accused approached him on 18-2-2014 and requested him for a hand loan of

Rs.1,50,000/- for his urgent business necessities, he considered and paid the amount to the accused on the same day i.e. on 18-2-2014 and the accused executed a promissory note in his favour on a bond paper worth Rs.100/- agreeing to repay the same as and when demand made by him with accrued interest thereon @ Rs.2=00 per months per hundred. The complainant further contended in his complaint that the accused failed to repay the legally enforceable debt amount of Rs.1,50,000/- as on 2-7-2015 he demanded the accused for repayment of amount, and on demand the accused issued an account payee cheque bearing 2 No. 224808, dated 02-7-2015 drawn on Vijaya Bank Chandanagar branch in his favour and the accused assured that the cheque would be honour without fail on its presentation on 3-7-201 and when he presented the said cheque for collection in his Banker APGVB Ashok Nagar, Ramachandrapuram branch for clearance on 3-7-2015, it returned with cheque return Memo due to insufficient funds in the account of accused. The complainant further contended in his complaint that he got issued legal notice dated 09-7-2014, for repayment of loan amount of

Rs.1,50,000/-, you received the said notice on 14-7-2015, but the accused not paid the cheque amount, but replied the notice on 23-7-2015 admitting some facts and denying some facts of his notice. The accused knowing fully aware that there are no funds in his account to honour the cheque and the said cheque is issued in order to repayment of hand loan which is legally enforceable one and there by the accused has committed an offence punishable U/s 138 of Negotiable

Instrument Act, as such the accused liable to prosecute and take steps to recover the amount, therefore the complainant got filed the present case against the accused under Sec. 138 of Negotiable Instrument Act.

3.On appearance of the accused copies of documents were furnished to the accused as required U/Sec. 207 Cr.P.C.

4.The accused was examined U/Sec. 251 Cr.P.C. for the accusation leveled against him U/Sec. 138 of Negotiable Instrument Act. The contents were read over and explained to him in Telugu for which he denied the offence and preferred a trial.

5.In order to establish its case, the complainant examined himself as PW1 and got marked Ex.P-1 to P-7. On behalf of the accused no witness is examined and no documents are marked on his behalf.

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6.On closure of the prosecution side evidence the accused was examined

U/Sec. 313 Cr.P.C. with regard to the incriminating evidence available against him in the prosecution evidence and he denied the offence.

7.Heard both sides.

8.Now, the point for consideration is Whether the complainant has established his case against the accused beyond all reasonable doubts?

POINT

09.PW-1 who is complainant, in his chief examination affidavit reiterated the complaint averments deposing that the accused is well known to him since long time as both of them are in business line, due to that acquaintance the accused approached him on 18-2-2014 and requested him for a hand loan of Rs.1,50,000/- for his urgent business necessities, he considered and paid the amount to the accused on the same day i.e. on 18-2-2014 and the accused executed a promissory note in his favour on a bond paper worth Rs.100/- agreeing to repay the same as and when demand made by him with accrued interest thereon @ Rs.2=00 per months per hundred. PW-1 further contended in his chief examination affidavit that the accused failed to repay the legally enforceable debt amount of

Rs.1,50,000/- as on 2-7-2015 he demanded the accused for repayment of amount, and on demand the accused issued an account payee cheque bearing No. 224808,

dated 02-7-2015 drawn on Vijaya Bank Chandanagar branch in his favour and the

accused assured that the cheque would be honour without fail on its presentation on 3-7-201 and when he presented the said cheque for collection in his Banker

APGVB Ashok Nagar, Ramachandrapuram branch for clearance on 3-7-2015, it returned with cheque return Memo due to insufficient funds in the account of accused. The complainant further contended in his complaint that he got issued legal notice dated 09-7-2014, for repayment of loan amount of Rs.1,50,000/-, you received the said notice on 14-7-2015, but the accused not paid the cheque amount, but replied the notice on 23-7-2015 admitting some facts and denying some facts of his notice. The accused knowing fully aware that there are no funds 4 in his account to honour the cheque and the said cheque is issued in order to repayment of hand loan which is legally enforceable one and there by the accused has committed an offence punishable U/s 138 of Negotiable Instrument Act, as such the accused liable to prosecute and take steps to recover the amount, therefore the complainant got filed the present case against the accused under

Sec. 138 of Negotiable Instrument Act, praying the Court punish the accused and grant compensation double of the cheque amount.

10.He got marked Ex.P-1 to Ex.P-7 viz. Ex.P-1 is the Original Cheque bearing

No.224808, for Rs.1,50,000/-, dated 02-7-2015 pertaining to Vijaya Bank, Branch

Chandanagar, Ex.P-2 is the Cheque return memo, dated 04-7-2015, Ex.P-3 is the office copy of the legal notice, dated 9-7-2015, Ex.P-4 is the Postal receipt,

Ex.P-5 is the Postal acknowledgement card, Ex.P-6 is the Reply notice, Dated 23-7-2015, and Ex.P-7 is the document executed on Rs.100/- non judicial stamp paper.

11.In the cross examination he stated that he studied up to 7th class, he is a vegetable vendor, he got acquaintance with the accused as he is selling gup chups and fruits in the season, he lent amount for the first time to the accused in this case. On 10-2-2014 accused asked him money, he did not mention the said date in either Ex.P-1 or in his chief affidavit, at the time of lending amount only they both were present. He lent amount to the accused near his gup chup cart, no body was present near them at the relevant time, he do not know the scribe of Ex.P-7, it was not prepared in his presence, after verifying Ex.P-7 he took the same, he do not know whether attesting witness is a necessary for pronote, accused promised him to return the amount with in five to six months, he did not mention the same in his affidavit, he do not remember when Ex.P-1 was issued, he did not send rejoinder to the reply notice sent by accused. He denied the further suggestions of the learned defence counsel for the accused.

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12.The learned counsel for the complainant argued that in this case the complainant has lent an amount of Rs.1,50,000/- to the accused and in discharge of said loan the accused issued Ex.P-1 cheque bearing No.224808 in favour of the complainant, but when it was presented before Bank, it was dis honoured due to insufficiency of funds, hence he issued legal notice to the accused, but in spite of receiving the same the accused did not made payments, he sent a reply notice with false pleadings, hence the present complaint. He prayed the Court to allow the petition.

13.The learned defence counsel for accused filed written arguments and argued that a false case has been foisted against the accused, in fact the complainant did not lent any amount to the accused. The complainant is only vegetable vendor and he is not having sufficient source of income to lent an amount of Rs.1,50,000/- to the accused, even as per evidence of PW-1 no third person was present at the time of transaction, complainant did not file any documents regarding income proof to lent said huge amount to the accused and

Ex.P-1 is not supported by consideration. Further he argued that accused obtained hand loan of Rs.30,000/- on 18-2-2014 from the complainant at that time complainant obtained a blank signed stamp paper and also a blank signed cheque from the accused as security purpose, but he paid the amount on 20-4- 2014, when he asked the complainant to return the said documents i.e., Ex.P-1 and Ex.P-7, the complainant has stated to accused that the said documents are misplaced.

The learned counsel for accused relied on citations as mentioned below :-

1) Krishna Janardhan vs. Datatreya G.hedge (2008) (2) ALT. Crl. Page 170 S.C.,

and

2) Rangappa vs. Sri Mohan reported in 2014 S.C., Page 935.

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14.In this case to prove the version of complainant herein he himself got examined as PW-1. During his evidence he almost reiterated the contents of complaint and Ex.P-1 to Ex.P-7 are the documents which are marked on behalf of the complainant herein viz. Ex.P-1 is the Original Cheque bearing No.224808, for

Rs.1,50,000/-, dated 02-7-2015 pertaining to Vijaya Bank, Branch Chandanagar,

Ex.P-2 is the Cheque return memo, dated 04-7-2015, Ex.P-3 is the office copy of the legal notice, dated 9-7-2015, Ex.P-4 is the Postal receipt, Ex.P-5 is the Postal acknowledgement card, Ex.P-6 is the Reply notice, Dated 23-7-2015, and Ex.P-7 is the document executed on Rs.100/- non judicial stamp paper.

15.During the cross examination the complainant deposed that on 10-2-2014 accused asked him for money and he lent amount to the accused near his

Gupchup cart and no body was present during the relevant time and he do not know the scribe Ex.P-7, he did not remember when Ex.P-1 was issued, he did not sent any rejoinder to the reply notice sent by the accused. He denied the suggestions put to him by the counsel for the defence.

16.In this case Ex.P-1 shows the signature of the accused on Ex.P-1 issued in favour of complainant herein, Ex.P-2 shows the Memo issued by Bank authorities showing dishonor of Ex.P-1, Ex.P-3 shows that it was executed in favour of complainant by accused herein, Ex.P-4 is Legal Notice dated 9-7-2015 issued to the accused herein. Ex.P-5 shows the acknowledgement received by the accused herein.

17.Finally it is seen that Ex.P-6 is reply legal notice issued by accused herein to the counsel for the complainant wherein he mentioned that on 18-2-2014 the accused taken hand loan of Rs.30,000/- from the complainant and he issued Ex.

P-1 in favour of complainant herein, but it was blank signed cheque, even blank signed 100 rupees stamp paper but within stipulated period he has paid entire hand loan to the accused, but the complainant did not return bank Ex.P-1 and 7 Ex.P- 7 to the accused and later sent false legal notice to the accused. Ex.P-7 is the document executed on Rs.100/- non judicial stamp paper.

18.In this case as per evidence of PW-1 he is only a vegetable vendor, he is selling vegetables and fruits and as per his version he lent Rs.1,50,000/- to the accused in the year 2014. But in this case except PW-1 none were examined on behalf of complainant herein to support his version. Ex.P-1 to Ex.P-5 are the documents found to be in favour of complainant supporting his version, but it is surprised to see that in spite of receiving reply notice the complainant did not sent any rejoinder to the accused to prove his version, even in this case the complainant did not prove his source of income before the Court or at least he did not examine any witnesses in support of his claim.

The present petition is filed U/s 138 Negotiable instrument act. The important elements under section 138 N.I act are under:

(a) the cheque has been presented to the bank within a period of six

months from the date on which it is drawn or within the the date on which it

is drawn or within the period of its validity, whichever is earlier.

(b) the payee or the holder in due course of the cheque, as the case may be,

makes a demand for the payment of the said amount of money by giving a

notice, in writing to the drawer of the cheque, within thirty daysofthe

receipt of information by him from the bank regarding the return of the

cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said

amount of money to the payee or as the case may be to the holder in due

course of the cheque, within fifteen days of the receipt of the said notice.

8

Explanation:- for the purposes of this section, debt or other liability means

a legally enforceable debt or other liability.

At this juncture this court would like to discuss Section 139 of N.I act

which deals as '' It shall be presumed unless the contrary is proved the holder

of a cheque received the cheque of the nature referred to in Sec. 138 N.I. Act

for the discharge, in whole or in part, or any debt any liability.

19. At this juncture i would like to discuss the Judgment reported in 2008(2)

ALT. (Crl.) Page 170 Supreme Court, between Krishna Janardhan vs. Datatreya

G.Hedge. It was held by Hon'ble apex court that the statutory presumption has an penitentiary value, the question as to whether the presumption stood rebutted or not even that Stepping in to the witness box by the accused is not imperative. Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held to have rebutted. Other important principles of legal jurisprudence namely presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be delicately balanced. Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held to have rebutted.

20.In this case as per the above discussed facts this Court feels that the complainant did not successfully prove before the Court regarding his capacity to lent such a huge amount to the accused, even in this case the version of accused mentioned in Ex.P-6 is not denied by the complainant herein.

21.At this juncture I would like to rely on citation reported in 2010 Law Suit (SC), 277 between Rangappa V/s Mohan. The initial presumption as contemplated under Sec.139 of the Negotiable Instrument Act has to be raised by the Court in favour of the complainant. The presumption referred to in Section 139 of the N.I.Act is a mandatory presumption and not a general presumption, but the accused is 9 entitled to rebut the said presumption. What is required to be established by the accused in order to rebut the presumption is different from each case under given circumstances.

22.On considering the total facts this court feels that the accused in this case has raised a probable defence in regard to facts mentioned in cross examination of PW1 which are mentioned in Ex.P6 i.e., the reply notice , and i feel that the complainant did not put forth any evidence to disprove the defence raised by the accused in this case.

23.In my view even otherwise the complainant has failed to show his source of income to lent such a huge amount because as per evidence the complainant is only a petty vegetable vendor. He ought to have examine other witness to show his version before the court. In my view the accused has raised probable defence in regard to non existence of legally enforceable debt under Ex.P1, in my view the complainant has failed to prove the guilt of accused beyond all reasonable doubts, hence accused is entitled for benefit of doubt.

In the result, the accused is found not guilty for the offence punishable

U/s 138 N.I. Act and he is acquitted U/s 255(1) of Cr.P.C for the said offence.

His bail bonds if any shall stands canceled.

Dictated to the Stenographer Gr.II, transcribed by him, corrected and

pronounced by me in the open Court, this the 26 th day of April, 2017.

Addl. Judl. Magistrate of First Class, Sangareddy.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

Complainant:

PW-1 K. Bikshapathi (Complainant)

Defence: None.

10

EXHIBITS MARKED FOR

Complainant

1. Ex.P-1 is the Original Cheque bearing No.224808, for Rs.1,50,000/-,

dated 02-7-2015 pertaining to Vijaya Bank, Branch Chandanagar,

2. Ex.P-2 is the Cheque return memo, dated 04-7-2015,

3. Ex.P-3 is the office copy of the legal notice, dated 9-7-2015,

4. Ex.P-4 is the Postal receipt,

5. Ex.P-5 is the Postal acknowledgement card,

6. Ex.P-6 is the Reply notice, Dated 23-7-2015,

7. Ex.P-7 is the document executed on Rs.100/- non judicial stamp paper.

Defence: NIL

Addl. Judl. Magistrate of First Class, Sangareddy.

IN THE COURT OF ADDITIONAL JUDICIAL FIRST CLASS MAGISTRATE;

AT SANGAREDDY

PRESENT: Smt. HARISHA, B.A., LL.M.,

JUDICIAL MAGISTRATE OF FIRST CLASS,

SANGAREDDY

DATE : 26th DAY OF APRIL, 2016

C. C. No. 258 of 2016

Between:-

The State through S.H.O., P.S. Ramachandrapuram. … Complainant

A n d

Nerella Kishore @ Balraj

S/o Lingaiah, Aged 32 yrs., SC Madiga caste, Occupation Supervisor in Jyothi Cinema theatre, R/o H.No.23-9/24, Vinayaknagar colony, Ramachandrapuram, Native of Kammagudem, Marrigudem Mandal, Nalgonda District. …Accused

This case is coming up before me for final hearing in the presence of A.P.P.O. for the Complainant/State and of Sri L. Devidas Naik, learned Counsel for the Accused, upon perusing the material papers on record and upon hearing both sides, and having stood over for consideration, till this day, the court delivered the following:-

J U D G M E N T

1.The Sub Inspector of Police filed charge sheet agaisnt the accused for the offences punishable under Sections 356, 380 of I.P.C. of P.S.

Ramachandrapuram.

2. The brief facts of the charge sheet are that on 10-3-2016 at 1630 hours LW-1 Smt. Bellamkonda Pushpawathi W/o Srinivasulu came to

Police Station and lodged a report, in which she mentioned that on 10-3- 2016 at 2:30 hours when she was along in the house, one male person wearing mask to his face came to her and forcibly snatched away her pustela thadu Wg. About 45 grams from her neck and fled away on motorbike and on her hues and cries, neighbors chased him and caught him, identified him as her tenant of her upper portion namely Kishore, and finally she requested to take necessary legal action .

3.On receipt of the report the Police registered a case in Cr.No.119 of 2016, for the offence under Sections 380, 356 of I.P.C. During the course of investigation LW-6 examined and recorded the statements of LW-1 to

LW-3, visited the scene of offence, conducted the proceedings of scene of offence panchanama and rough sketch in the presence of panch witnesses LWs 4 and 5,on enquiry the accused confessed the commission of offence, recorded the confessional statement of accused and seized the case property in the presence of panch witnesses, arrested him and produced him before the Court for judicial remand, and after completion of investigation, filed charge sheet against the accused for the offence punishable under Sections 380 & 356 of I.P.C.

3. On appearance of accused before the Court, the accused was furnished with all copies of documents as provided u/s 207 Cr.P.C. The accused was examined u/s 239 Cr.P.C. for the offence punishable under

Sections 380 or 411 & 356 of I.P.C. A charge for the offence punishable under Sections 380 or 411 & 356 of I.P.C. read over and explained to the accused, for which, the accused pleaded not guilty and preferred a trial.

4.The prosecution to prove its case, examined PW-1 and PW-2 and got marked Ex.P-1 to Ex.P-3 and M0-1 pustela tadu.

5.After closure of prosecution side evidence the accused was not examined U/s 313 Cr.P.C. as there is no incriminating evidence appearing against the accused and the examination of the accused U/s 313 Cr.P.C.

dispensed with.

6.Heard arguments of both sides.

7.Perused the records.

8.Now, the point for determination is whether the prosecution had proved the guilt of the accused for the offences punishable under

Sections 380 or 411 & 356 of I.P.C. beyond all reasonable doubt?

POINT:-

During the course of trial prosecution examined LW-1 the defacto complainant as PW-1, she did not totally supported the case of the prosecution stating in her chief examination that about nearly one year back some person snatched away her gold pustela thadu from her neck, she cannot identify him, she lodged report before Police, but she did not lodge report against the accused, Ex.P-1 is her report, Ex.P-2 is relevant portion in Ex.P-1. During the course of investigation Police recovered her pustela thadu, she filed petition before the Court and it was given to her,

M0-1 is her pustela tadu.

10.This witness not cross examined by learned APP or learned defence counsel for the accused.

11.PW-2 who is cited as witness has also not support the case of the prosecution stating in his chief examination he deposed before this Court that PW-1 is her neighbor, he do not know anything about the case, he was not examined by Police, Ex.P-3 is his 161 Cr.P.C. statement.

12.Pw-2 during the cross examination by the learned APPO nothing could be elicited in support of prosecution case, he denied the suggestions that he stated before Police as in Ex.P-3 and now deposing false before the Court.

13.The other evidences of listed witnesses LWs 3 to 6 is given up by the learned Sr.A.P.P. stating that this case is compromised by the complainant and accused.

14.On perusal of the record it is seen that this is a case in Crime

No.119 of 2016, dated 10-3-2016 based on the complaint lodged by the defacto complainant/PW-1 against accused in this case.

15.In this case Police filed charge sheet against the accused. During the course of trial the defacto complainant herself is examined as PW-1, the witness examined as PW-2, but they did not support the version of prosecution. Further evidence that is the evidences of LWs 3 to 6 were given up by the learned APP, as no incriminating evidence is found against the accused, as such the accused is entitled for benefit of doubt.

16.In the result, accused is not found guilty for the offences punishable under Sections 380 or 411, 356 I.P.C., and he is acquitted U/s 248(1) Cr.P.C., His bail bond if any shall be canceled and the sureties are hereby discharged. The custody of Mo-1 pustela thadu which was given to PW-1 defacto complainant for interim custody shall be made absolute after expiry of appeal period.

Dictated to the Stenographer (Gr.II), transcribed by him, corrected

and pronounced by me in the open Court, on this the 26 th day of April, 2017.

ADDL. JUDICIAL MAGISTRATE OF FIRST CLASS

SANGAREDDY

APPENDIX OF EVIDENCE

Witnesses examined for Prosecution:Defence: None. PW-1: Smt. Bellamkonda Pushpawathi (de facto-complainant) PW-2: Raji Reddy

EXHIBITS MARKED: Prosecution:Defence: Nil. Ex.P-1 is the Report Ex.P-2 is the 161 Cr.P.C. statement of PW-1 Ex.P-3 is the 161 Cr.P.C. statement of PW-2

MATERIAL OBJECTS: M0-1: Pustela tadu.

ADDL. JUDICIAL MAGISTRATE OF FIRST CLASS

SANGAREDDY

TSSN030017262014

Presented on : 29-11-2014 Registered on : 05-12-2014 Decided on : 01-05-2017 Duration : 2 years, 5 months, 2 days

IN THE COURT OF

I Additional Junior Civil Judge-cum-I Additional Judicial Magistrate of First Class Sangareddy

CC/201385/2014 (PROSECUTION): Edla Manik reddy Through Police Station Officer , Aged. 36 years, Occu. Business ,ro. H.No. 2-72

SANGAREDDYSANGAREDDY

Edla Manik reddy VERSUS : B. Tirupathi reddy Age: 0 Occupation : aged. 35 years, Occu. Business, Ro. H.No. 5-1-3252 ----------------------------------------------------------------------------- APP for State }: G. Chandrakanth, Advocate for appearing for B. Tirupathi reddy Advocate appearing for , respectively. -----------------------------------------------------------------------------

ORDER

Defacto complainant absent. Process not filed waited till 5.20pm CC is dismissed for default

Date : 01-05-2017 I Additional Junior Civil Judge-cum-I

Additional Judicial Magistrate of First Class Sangareddy

TSSN030002762017

Presented on : 28-02-2017 Registered on : 01-03-2017 Decided on : 26-04-2017 Duration : 0 years, 1 months, 26 days

IN THE COURT OF

I Additional Junior Civil Judge-cum-I Additional Judicial Magistrate of First Class Sangareddy

CC/200171/2017 (PROSECUTION): Seetha Naresh Through Police Station Officer , H.No. 15-52, RTC Colony, Pothireddypally, Sangareddy

SANGAREDDYSANGAREDDY

Seetha Naresh VERSUS : P Pranav kumar Age: 36 Occupation : Sangareddy ----------------------------------------------------------------------------- APP for State }: G. Subhash Chander, Advocate for appearing for P Pranav kumar Advocate appearing for , respectively. -----------------------------------------------------------------------------

ORDER

Defacto complainant present. CC is not pressed by complainant duly identified by his counsel, hence CC is dismissed as prayed for

Date : 26-04-2017 I Additional Junior Civil Judge-cum-I

Additional Judicial Magistrate of First Class Sangareddy