Jakkula Kishore Kumar

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IN THE COURT OF SPECIAL JUDICIAL MAGISTRATE OF FIRST

CLASS, PROHIBITION AND EXCISE COURT: SRIKAKULAM.

PRESENT: SRI J.KISHORE KUMAR Special Judicial Magistrate of First Class, Prohibition & Excise, Srikakulam.

Friday this the 07th day of June, 2019.

CALENDAR CASE No. 94/2014

Between

Baratam Srinivasa Rao, S/o.Varahalu, Aged about 42 years, R/o.Plot No.74, D.No.1-44-3, Shantinagar colony, Srikakulam town and District.

…Complainant

And

Kuppannagari Annaji Rao, S/o.Mohana Rao, Occ. Employee, aged about 43 years, R/o.MIG-184, Old APHB colony, Behind Z.P.Office, Srikakulam town and District. …Accused.

This case, which is transferred to this court from the court 1st Additional Judicial Magistrate of I Class, Srikakulam, is coming on 08-05-2019 for final hearing before me in the presence of Sri Anil Kumar Gora learned counsel for the Complainant and of Sri A.L.Narayana, learned counsel for the accused, and having stood over to this day for consideration, this Court delivered the following:

J U D G M E N T

1. This is a private complaint filed U/s 190 of Cr.P.C against the accused, alleging that he has committed an offence U/s 138 of Negotiable Instruments

Act punishable U/s 142 of the said Act.

2. The provenance of the case fact is that the accused borrowed an amount of Rs.3,00,000/- from the complainant on 01-12-2010 for the purpose of family necessities and to discharge sundry debts. Accordingly the accused executed a promissory note in favour of the complainant with interest at the 2 rate of 24% per annum after that he made several demands to the accused for discharge of the said debt under the promissory note with interest. The accused issued cheque bearing No.008998 for Rs.3,00,000/- on 31-07-2013 payable at IDBI Bank Srikakulam. The said cheque was presented on 01-08-2013 in his bank i.e., Indian Overseas Bank, Srikakulam for collection, but the said Bank returned the cheque with memo dated 01-08-2013 stating that “FUNDS INSUFFICIENT”. The complainant got issued registered lawyer notice through his Advocate on 09-08-2013 to the accused by informing that the facts of the dishonour of the said cheque and demanding him for repayment of his unpaid and dishonoured cheque amount to him within stipulated time of 15 days. The accused received the said notice on 11-08-2013 but the accused has not paid the cheque amount after lapse of stipulated period of 15 days, hence the complainant filed the present complaint and prayed to punish the accused according to law. Hence, the complaint.

3. The case is taken cognizance by the Court for the offence punishable under Sections 138 and 142 of Negotiable Instruments Act.

4. On appearance of the accused before the Court, copies of the documents were furnished to him, as contemplated under Section 207 of Code of Criminal Procedure and he is examined under Section 251 of Code of

Criminal Procedure, read over and explained the substance of the accusation for the offence punishable under Section 138 and 142 of Negotiable

Instruments Act in Telugu to the accused and he pleaded not guilty and claimed to be tried.

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5. On behalf of the Complainant he himself was examined as P.W1 got marked and Exs.P1 to P7.

6. After closure of the complainant evidence, accused was examined under section 313 Cr.P.C., by explaining the incriminating material found against him, for which he denied and reported no defence evidence.

7. Heard both sides. The complainant counsel and accused counsel filed written arguments.

9. Now the point for determination is :-  Whether the Complainant proved the guilt of the accused for the offence punishable under Sections 138 and 142 of Negotiable

Instruments Act beyond all reasonable doubt?

10. P O I N T :- The facts of the case are stated supra. To prove the offence u/s.138 of Negotiable instruments Act, the following aspects are to be established:-

1. That there is existing legally enforceable debt as on the date of issuance of the disputed cheque.

2. That the cheque was presented in the bank within six months from the date of which it was drawn or within the period of its validity. As per section 35(A) of Banking Regulation Act, 1949 the validity of cheque is reduced to three months from six months w.e.f 01-04-2012.

3. Cheque was returned unpaid and the complainant herein gave notice in writing regarding the dishonour of cheque within 30 days from the date of receipt of the information by him.

4. That the accused failed to make payment within 15 days from the date of receipt of notice.

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11. Before proceeding further it is beneficial to refer the provision of

Chapter 17 of Negotiable Instruments Act. The Act makes a civil transaction to be an offence by fiction of law and that certain rebuttable presumptions that shall be drawn. The object and intention of these penal provisions are to prevent issuance of cheques in playful manner or with dishonest intention or that no mind to honour or without sufficient funds in the account maintained by the drawer. The initial presumption lays in favour of the complainant.

The rebuttable presumption u/s.139 is a devise to prevent undue delay in the course of litigation.

12. To prove his case, the Complainant was examined as P.W 1 and got marked Exs.P1 to P7. Ex.P1 is cheque bearing No.008998 dated 31-07-2013. Ex.P2 is cheque return memo dated 01-08-2013. Ex.P3 is Office copy of legal notice dated 09-08-2013. Ex.P4 is Postal acknowledgment dated 11-08-2013. Ex.P5 is Reply notice dated 26-08-2013. Ex.P6 is the certified copy of Promissory note dated 01-12-2010. Ex.P7 is certified copy of

Judgment in O.S.No.5/2014 on the file of Principal Senior Civil Judge’s Court,

Srikakulam dated 30-04-2014.

13. PW.1 in his chief examination deposed that the accused borrowed an amount of Rs.3,00,000/- from him on 01-12-2010 on execution of pronote

Ex.P6 in favour of him. When he demanded the accused to repay the

Rs.3,00,000/-, the accused by admitted his liability issued a cheque Ex.P1 bearing No. 008998 dated 31-07-2013 drawn on IDBI Bank, Srikakulam for a sum of Rs.3,00,000/- towards the payment of said loan amount.

14. The complainant further stated that he presented the Ex.P1 for encashment in his bank i.e., Indian Overseas Bank, Srikakulam, but it was 5 dishonoured for the reason of ‘FUNDS INSUFFICIENT’ vide bank memo

dated 01-08-2013 Ex.P2. On that the complainant issued Ex.P3 legal notice

vide registered post with acknowledgment informing the dishonour of the cheque and demanding to repay the cheque amount within 15 days. The accused received legal notice Ex.P3 on 10-08-2013 and the accused also issued Ex.P5 reply notice dated 26-08-2013 denying the averments in the legal notice.

15. The complainant further stated that he also filed civil suit

O.S.No.05/2014 before Principal Senior Civil Judge’s Court, Srikakulam

basing on the promissory note for recovery of the principal amount under promissory note. He further stated that in the said O.S. the accused made his appearance through his advocate and he choose to file written statement within the time granted by the Hon’ble Court but was set exparte and the suit decreed exparte. Hence he prayed this court as the accused issued Ex.P1 with a dishonest intention knowing fully well that there was no sufficient amount to honour the Ex.P1.

16. PW.1 was cross examined by the counsel for the accused in three times on different dates at length, but nothing was elicited during the course of cross examination. In that on 29-11-2016 he posed some suggestions to the PW.1. One of the suggestion is that the accused borrowed only

Rs.30,000/- but PW.1 obtained cheque for Rs.3,00,000/-. He put another suggestion stating that for wrongful gain by the complainant filled the blanks of cheque in his name. By observing those suggestions the execution of the cheque was not denied by the accused. But the amount stated in Ex.P1 was denied by the accused.

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17. The counsel for the accused pose another suggestion to the PW.1 on 10-08-2018 stating that one Mr.Baratam Ramanamurthy is his brother for which the PW.1 admitted as true. The complainant/PW.1 also admitted that

Mr.Baratam Ramanamurthy is doing finance business. On that the counsel for the accused putting another suggestion stating that the accused issued Ex.P1 cheque to one Mr.Baratam Ramana Murthy and PW.1 filed false case as a

Binami to Mr.One Baratam Ramanamurthy who is the brother of the complainant/PW.1. Which means that the execution of cheque to the PW.1 was denied by the counsel for the accused. But the accused did not produce any evidence to that effect.

18. On 31-01-2019 the counsel for the accused cross examined the

PW.1 took another plea that Ex.P3 legal notice does not contain for which

Ex.P1 cheque was issued to the complainant and the rate of interest was not mentioned in it. But in view of the opinion of this court the Legal notice is need not contain each and every fact of the case. It is not the encyclopaedia of every fact.

19. The accused counsel cross examined the PW.1 in three times in each time of cross examination the counsel for the accused took three different type of pleas. On observing the entire record it was clear that the execution of Ex.P1 cheque and signature appears on it and execution of

Ex.P6 promissory note was not denied by the accused. The complainant/

PW.1 in his evidence also stated that he filed a Civil suit in O.S.No.05/2015 which was decreed exparte against the accused was also not denied by the accused. Which means that Ex.P1 was issued by the accused for a lawful consideration. The presumption stated in section 118 and 139 of Negotiable 7

Instruments Act are in favour of the complainant/PW.1 and the accused fails to rebut those presumptions.

20. The accused in his 313 Cr.P.C. examination, where denied the allegations of the complainant and the evidence deposed against him by PW.1.

In his 313 Cr.P.C. examination he has no defence evidence in his favour to disprove the allegations of the complainant, except filed a decisions reported in

Basalingappa Vs. Mudibasappa Criminal Appeal No.636 of

2019 (arising out of SLP (Crl.) No.8641/2018

Where in the Hon’ble Supreme Court stated that it is not

necessary for the accused to come into the witness box for his defence.

(a) The presumption under section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence.

The standard of proof for rebutting the presumption is that of preponderance of probabilities;

(b) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.

(c) That it is not necessary for the accused to come into the witness box in support of his defence. Section 139 imposed an evidentiary burden and not a persuasive burden.

21. The counsel for the accused not examined the defence witness stand above the Hon’ble Supreme Court decisions. In those 8

Judgments the Hon’ble Supreme Court clearly stated that the accused need not enter into the witness box and he can rely evidence materials brought by him or the complainant. In this case, the accused relied the evidence based on the cross examination and the documents Ex.P1 to Ex.P7 which were submitted by the PW.1 (complainant). They did not support the accused to rebut the presumptions in favour of the complainant.

22. The complainant relied the following judgments reported in

A.Yesubabu vs. D.Appala Swamy and Another 2003(2)

ALD Cri 707, III (2004) BC 48. 2003 Andhra High Court

The explanation section 138 of the N.I.Act says that “debt or other liability” means a legally enforceable debt or other liability. Once the accused admits the issuance of the cheque, the burden shifts to the accused to show that it was not a legally enforceable debt as provided under section 139 of the

Act.

Another decision in

Sharda Finance Corporatin vs. L.Laxman Goud And Anr.

2004(1) ALD Cri 596, IV (2004) BC 244

Where in the Hon’ble High Court clearly stated that once the issuance of cheque is admitted, the burden is on the accused to show that it was not issued by him for discharge of any legally enforceable debt or liability and it shall be presumed, unless the contrary is proved, that the holder of the cheque received the cheque of the nature referred to under section 138 of the N.I.Act for the discharge, in whole or in part, of any debt or other liability under section 139 of the N.I.Act. where in once a fact has 9 been stated by the witness and the same is neither denied nor disputed by the accused, it can be said that such a fact is admitted.

23. Here in this case the complainant/PW.1 in his evidence clearly stated that the accused on execution of Ex.P6 promissory note obtained

Rs.3,00,000/- loan and the PW.1 also filed a Civil suit against the accused.

But the same was not denied or dispensed by the accused. Which means that he admitted the execution of promissory note.

24. The complainant also relied on another decision in

Bir Singh vs. Mukesh Kumar (Crl.Appeal Nos.230-231 of

2019

Where in the Hon’ble Supreme Court stated that, the onus of proving that the cheque was not in discharge of any debt or other liability is on the accused drawer of the cheque.

25. Section 139 of the Negotiable Instruments Act read with section 118 thereof, the court had to presume that the cheque had been issued for discharging a debt or liability. The presumption was rebuttable but mere denial or rebuttable by accused was not enough. The accused had to prove by cogent evidence that there was no debt or liability. Here in this case the accused did not produce any evidence to rebut statutory presumptions in favour of the complainant/PW.1.

26. Hence, in view of the discussion made supra, the complainant filed the present complaint as per the procedure prescribed under the act and the accused not denied the issuing cheque and promissory note Ex.P1 and

Ex.P6. The accused also not deny his signature on Ex. P1 cheque and Ex.P6 10 promissory note and the presumption under section 139 of Negotiable

Instruments Act stands in favour of the complainant, that the accused issued

Ex. P1 cheque due under Ex.P6 promissory note to the complainant towards discharge of a legally enforceable debt. The accused failed to rebut the said presumption which is in favour of the complainant.

27. The accused took three different versions in the cross examination of the PW.1/complainant but failed to prove the same with the sufficient evidence. Mere giving suggestions to PW.1 will not rebut the presumption in favour of the complaint unless the accused produce sufficient evidence before this court on his behalf. Hence, in view of the discussion made supra and the legal position cited, it is held that the complainant established the necessary ingredients for the offence punishable under section 138 of Negotiable Instruments Act, against the accused, preponderance of probability is in favour of the complainant. Hence, accused is liable to be convicted for the offence punishable under section 138 of Negotiable

Instruments Act. Accordingly, the point is answered.

28. In the result, the accused is found guilty for the offence punishable under Section 138 of Negotiable Instruments Act and he is convicted underSection 255(2) of Code of Criminal Procedure for the said offence.

Dictated to the stenographer, transcribed by him, corrected and

pronounced by me in the open court on this the 07th day of June, 2019.

Spl. Judicial Magistrate of First Class,

Prohibition & Excise Court,

Srikakulam.

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This court questioned the quantum of sentence to the accused.

Accused stated as follows:-

He has aged parents and small children and he is working as a sales

man depending upon him.

For which he pleaded to show mercy. Taking in to consideration of the plea of the accused, this court has sentenced to under go a simple imprisonment for a period of 06 months and to pay a fine of Rs.10,000/- (Rupees Ten thousand only) for the offence u/s.138 of the Negotiable Instruments Act, 1881 u/s.255(2) Cr.P.C. In default of payment of fine amount accused shall under go Simple Imprisonment for a period of one month.

Accused is appraised about his right of appeal and legal aid.

A copy of judgment is furnished to accused at free of cost.

Dictated to the stenographer, transcribed by him, corrected and

pronounced by me in the open court on this the 07 th day of June, 2019.

Spl. Judicial Magistrate of First Class,

Prohibition & Excise Court,

Srikakulam.

APPENDIX OF EVIDENCE

WITNESS EXAMINED

FOR COMPLAINANT : FOR DEFENCE:

P.W.1: Baratam Srinivasa Rao -NIL-

DOCUMENTS MARKED

FOR COMPLAINANT:

Ex.P1: cheque bearing No.008998 dated 31-07-2013.

Ex.P2: cheque return memo dated 01-08-2013.

Ex.P3: Office copy of legal notice dated 09-08-2013.

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Ex.P4: Postal acknowledgment dated 11-08-2013.

Ex.P5: Reply notice dated 26-08-2013.

Ex.P6: certified copy of Promissory note dated 01-12-2010.

Ex.P7: certified copy of Judgment in O.S.No.5/2014 on the file of Prl.Senior

Civil Judge’s Court, Srikakulam dated 30-04-2014.

FOR DEFENCE: -Nil-

Spl.Judl.Magistrate of I Class,

Prohibition and Excise Court Srikakulam 13

IN THE COURT OF SPECIAL JUDICIAL MAGISTRATE OF I CLASS,

PROHIBITION AND EXCISE COURT, SRIKAKULAM

CALENDAR AND JUDGMENT

C.C.NO.94/2014

Date of offence:31-07-2013 Date of Complaint or report:23-09-2013/27-09-2013 Date of apprehension of accused:16-04-2015 Date of release on bail: 16-04-2015 Date of commencement of trial: 23-06-2015 Date of close of trial: 06-03-2019 Date of sentence or order: 07-06-2019 Explanation for delay: On 08-06-2015 the accused was examined under Section 251 Cr.P.C. for the offence u/s.138 of N.I.Act. On 29-03-2016 the complainant was examined as PW.1. On 29-11-2016 the PW.1 cross examined. On 10-08-2018 PW.1 cross examined. On 31-01-2019 PW.1 cross examined. On 06-02-2019 the accused was examined u/s.313 Cr.P.C. On 08-05-2019 Arguments heard on both sides. Judgment pronounced on 07-06-2019.

Name of the complainant: Baratam Srinivasa Rao, S/o.Varahalu, Aged about 42 years, R/o.Plot No.74, D.No.1-44-3, Shantinagar colony, Srikakulam town and District

Name of the accused Father’s Name Age

Kuppannagari Annaji RaoMohana Rao43years Village Mandal Religion Occupation Srikakulam TownSrikakulam HinduPrivate employee

Offence: U/s. 138 of Negotiable Instruments Act: Whoever issues a cheque knowing fully well that there are no funds in his account and thereby dishonor of cheque for insufficiency of funds.

Finding: Accused is found guilty for the offence under section 138 of Negotiable Instruments Act, 1881.

Sentence or Order:In the result, the accused is found guilty for the offence punishable under Section 138 of Negotiable Instruments Act and he is convicted underSection 255(2) of Code of Criminal Procedure for the said offence.

Spl.JFCM

P&E SKLM

This court questioned the quantum of sentence to the accused. Accused stated as follows:-

He has aged parents and small children and he is working as a sales man depending upon him.

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For which he pleaded to show mercy. Taking in to consideration of the plea of the accused, this court has sentenced to under go a simple imprisonment for a period of 06 months and to pay a fine of Rs.10,000/- (Rupees Ten thousand only) for the offence u/s.138 of the Negotiable Instruments Act, 1881 u/s.255(2) Cr.P.C. In default of payment of fine amount accused shall under go Simple Imprisonment for a period of one month.

Accused is appraised about his right of appeal and legal aid. A copy of judgment is furnished to accused at free of cost.

Spl. Judl. Magistrate of I Class,

Prohibition and Excise Court,

Srikakulam.

Copy submitted to the Hon’ble I Addl. District Judge, Srikakulam.

N.B:- Fine amount of Rs.10,000/- paid by the accused vide challana CFMS Transaction ID: 30029282442019 dated 07-06-2019.

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Accused called: present Judgment pronounced in open court (vide separate Judgment)

In the result, the accused is found guilty for the offence punishable under Section 138 of Negotiable Instruments Act and he is convicted underSection 255(2) of Code of Criminal Procedure for the said offence.

This court questioned the quantum of sentence to the accused. Accused stated as follows:- He has aged parents and small children and he is working as a sales man

For which he pleaded to show mercy. Taking in to consideration of the plea of the accused, this court has sentenced to under go a simple imprisonment for a period of 06 months and to pay a fine of Rs.10,000/- (Rupees Ten thousand only) for the offence u/s.138 of the Negotiable Instruments Act, 1881 u/s.255(2) Cr.P.C. In default of payment of fine amount accused shall under go Simple Imprisonment for a period of one month. Accused is appraised about his right of appeal and legal aid. A copy of judgment is furnished to accused at free of cost.

Spl.JFCM

P&E SKLM

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On 07-06-2019

Heard.

The accused convicted and sentenced to simple imprisonment for a period of 06 months and to pay fine of 17

Rs.10,000/- in default of payment of fine to under go simple imprisonment for a period of one month. The accused paid fine amount of Rs.10,000/- the accused wanted to prefer an appeal against the sentence. Under these circumstances, it is just and reasonable to suspend the sentence of imprisonment to accommodate the petitioner/accused to prefer an appeal. Hence, the sentence of imprisonment is suspended till 05-07- 2019.

The petitioner/accused shall execute a bond of Rs.5,000/- with two sureties for a like sum each. The petitioner shall be released on execution of bonds.

SPL.JFCM

P&E SkLM 18

Since the accused is absent NBW was issued for her appearance and for her on quantum of sentence and posted to time to time call on 25-10-2018

Dictated to the stenographer, transcribed by him, corrected and

pronounced by me in the open court on this the 11 th day of September,

2018.

Sd/- J.Kishore Kumar

Spl. Judicial Magistrate of First Class,

Prohibition & Excise Court,

Srikakulam.

On 27-9-2018 accused appeared in person and filed a petition u/s.70(2)

Cr.P.C. the same is allowed and NBW was recalled.

This court questioned about the quantum of sentence to the accused.

Accused stated as follows:-

She is a patient. Her husband died and she has only son depending

upon her.

For which she pleaded to show mercy on her.

Taking in to consideration of the plea of the accused, this court has sentenced her to under go a simple imprisonment for a period of 03 months and to pay a fine of Rs.5000/- (Rupees Five thousand only) for the offence u/s.138 of the Negotiable Instruments Act, 1881 u/s.255(2) Cr.P.C.

In default of payment of fine amount accused shall under go S.I. for a period of one month.

Spl.JMFC P&E SKLM

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IN THE COURT OF SPECIAL JUDICIAL MAGISTRATE OF I CLASS,

PROHIBITION AND EXCISE COURT, SRIKAKULAM.

PRESENT: Sri. J.Kishore Kumar, Spl. Judl. Magistrate of I Class,

Proh.& Excise Court, Srikakulam .

Friday this the 07thday of June, 2019 .

CALENDAR CASE No.183/2017

Between: State represented by the Sub- Inspector of Police,

Laveru Police station. …..Complainant

And: Kommu Chandrarao, S/o.Venkanna, Age 23 years, T.Kapu, Pata Routhupeta Village, Tamada Panchayathi, Laveru mandal, Srikakulam District. (Rider of motor cycle bearing No.AP 30 L 6387)

.... Accused.

This case is coming on 09-05-2019 for final hearing before me in the presence of learned Assistant Public prosecutor for the complainant - state and Sri T.Lakshmi Naidu Learned Advocate for the accused and after hearing the learned counsel on both sides, this case having stood over for consideration till this day, this court doth deliver the following:

J U D G M E N T

The Sub-Inspector of Police, Laveru Police Station has filed the charge-sheet against the accused in Cr.no.28/2016 for the offence punishable under sections 304-A, 338 of IPC.

2. The brief contents of the charge sheet is as follows:

The material averments of the prosecution case are that on 01-04-2016 at about 7-30 a.m., the deceased Murapaka Durga, Peesarla

Laxmana Rao, Deerapu Devi, Kommu Laxmi and some other students started from Thamada village to attend 10th class examinations through auto bearing

No.AP 30 X 8767 and at about 8-00 a.m., when the auto reached near Bus shelter at Gorlapeta junction at that time the accused is being rider of motor 2 cycle bearing No.AP 30 X 8767 drove it in rash and negligent manner without blowing horn and dashed against the auto bearing No.AP 30 X 8767 due to which the deceased Murapaka Durga who sat in the auto fallen on the road from the auto, as a result of which the said Durga received severe bleeding injuries on her fore head, abrasion injury on face, swelling injury on her right thigh and also LW.8/Routhu Someswara Rao pillion rider received severe and simple injuries Immediately they were shifted to KIMS hospital Srikakulam, through 108 vehicle for medical treatment.

Basing on the report of LW.1/Murapaka Ramulu, (father of the deceased) LW.24/G.Rambabu, Head constable No.295of Laveru Police Station registered as a case in Cr.No.28/2016 for the offence u/s.338 of IPC and sec.184 of M.V.Act and investigated into the case. During the course of investigation, he visited the scene of offence and examined LWs.1 to 8 (Murapaka Ramulu @ Ramu, Pesarla Laxmanarao, Darapu Ravi, Kommu

Laxmi, Murapaka Appanna, Kommu Simhadri, Korada Appalanaidu, Routhu

Someswararao) recorded their 161 Cr.P.C. statements and observed the scene of offence in the presence of LWs.19 and 20 (Patchabala Suri, Murapaka

Janardhana) and prepared scene observation report. On 07-04-2016 he received another report from LW.1/Murapaka Ramulu about the death intimation of the deceased/Murapaka Durga, then LW.24/G.Rambabu, Head constable No.295 altered the section of law from 338 IPC to 304-A, 338 of

IPC and sec.184 of M.V.Act and conducted further investigation. During the course of further investigation he conducted inquest over the dead body of the deceased in the presence of LWs.9 to 12 (Murapaka Ramanamma, Naru

Chinna, Murapaka Vishnu, Murapaka Janardhana) and forwarded the dead 3 body to the LW.22/Dr.Sadhu Ramamohanarao, Asst. Professor, for postmortem examination. He sent requisition to Motor Vehicle Inspector for inspection of the crime vehicle. Later he issued u/s.41-A Cr.P.C. notices to the accused. In this case LW.25/Ch.Ramarao, took up further investigation in this case, after receipt of post mortem certificate of the deceased, Motor vehicle Inspector report and completion of investigation, he filed charge sheet u/secs.304-A, 338 of IPC and sec.184/188 of M.V.Act. Hence the charge.

3. This court took cognizance for the offence punishable under section 304-A, 338 of IPC against the accused.

4. After appearance of the accused before this court, the copies of documents as per section 207 Cr.p.c were furnished to the accused.

5. The accused was examined u/s 251 Cr.P.C., for the offence u/s.304-A, 338 of IPC. The accusation was read over and explained to him in telugu for which he pleaded not guilty and claimed to be tried.

6. To bring home the guilt of the accused, the prosecution examined

Pws.1 to 16 and marked Exs.P1 to Ex.P17. The evidence of LW.14/Yagati

Ramayya, LW.15/Chinagunta Venkataramana, LW.16/Palisetti Mallibabu,

LW.18/Porapu Asiramma, LW.19/Patchapala Suri, LW.20/Murapaka

Janardhana, LW.21/V.Vasudevarao, MVI, LW.22/Dr.Sadhu Ramamohanarao,

LW.23/Dr. Pydi Hemasundar were given up by the prosecution.

7. After closure of the prosecution evidence, the accused was examined u/s. 313 Cr.P.C for the incriminating material adduced against him was read over and explained to him in telugu. After understood the same the accused denied the same and reported no defence evidence.

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8. Heard the learned Assistant Public Prosecutor and the learned counsel

for the accused.

9. Now the points that arise for determination are:

Whether the prosecution has established the guilt of the accused for the offence punishable under Section 304-A, 338 of IPC beyond all reasonable doubt?

10. The case of the prosecution is that on 01-04-2016 at about 7-30 a.m., the deceased Murapaka Durga, Peesarla Laxmana Rao, Deerapu Devi,

Kommu Laxmi and some other students started from Thamada village to attend 10th class examinations through auto bearing No.AP 30 X 8767 and at about 8-00 a.m., when the auto reached near Bus shelter at Gorlapeta junction at that time the accused being rider of motor cycle bearing No.AP 30 X 8767 drove it in rash and negligent manner without blowing horn and dashed against the auto bearing No.AP 30 X 8767 due to which the deceased Murapaka Durga who sat in the auto fallen on the road from the auto, as a result of which the said Durga received severe bleeding injuries on her fore head, abrasion injury on face, swelling injury on her right thigh and also LW.8/Routhu Someswara

Rao pillion rider received severe and simple injuries. Immediately they were shifted to KIMS hospital Srikakulam, through 108 vehicle for medical treatment. Basing on the report of PW.1, (father of the deceased) PW.16,

Head constable No.295of Laveru Police Station registered as a case in

Cr.No.28/2016 for the offence u/s.338 of IPC and sec.184 of M.V.Act and investigated into the case. During the course of investigation, he visited the scene of offence and examined PWs.1 to 7 and PW.14 recorded their 161

Cr.P.C. statements and observed the scene of offence in the presence of

LWs.19 and 20 (Patchabala Suri, Murapaka Janardhana) and prepared scene observation report. On 07-04-2016 he received another report from PW.1 5 about the death intimation of the deceased/Murapaka Durga, then PW.16, Head constable No.295 altered the section of law from 338 IPC to 304-A, 338 of

IPC and sec.184 of M.V.Act and conducted further investigation. During the course of further investigation he conducted inquest over the dead body of the deceased in the presence of PWs.8 to 10 and Pw.12 and forwarded the dead body to the LW.22/Dr.Sadhu Ramamohanarao, Asst.Professor, for postmortem examination. He sent requisition to Motor Vehicle Inspector for inspection of the crime vehicle. Later he issued u/s.41-A Cr.P.C. notices to the accused.

In this case PW.15, took up further investigation in this case, after receipt of post mortem certificate of the deceased, Motor vehicle Inspector report and completion of investigation, he filed charge sheet u/secs.304-A, 338 of IPC and sec.184/188 of M.V.Act.

11. To prove the guilt of the accused for the offence u/s.304-A of IPC, the prosecution must prove the rashness or negligent act of the accused which causes the death of the deceased, unless the prosecution proves the rashness or negligence on the part of the accused, the accused cannot be convicted.

12. To prove the guilt of the accused the prosecution here in this case examined PWs.1 to 16. PW.1 is the defacto complainant. PWs.2 to 7 and

PW.14 are the direct witnesses. PWs.8 to 10, PW.12 and PW.13 are the inquest panchayatidars. PW.11 is the photographer. PW.15 and PW.16 are the

Investigating Officers.

13. PW.1 is the defacto complainant, in his chief examination deposed that the deceased Murapaka Durga is her daughter. She died about 2 years back in the accident. He came to know about the accident through some body.

His daughter received injuries while undergoing treatment she was died in the 6 hospital. He gave complaint to the police. Ex.P1 is his report dated 01-04- 2016. Ex.P2 is the second report dated 07-04-2016. Hence his evidence no way helpful to the prosecution case because his evidence hearsay in nature.

15. PW.2 to 7 are the students they cited as direct witnesses in this case. They categorically deposed that they do not know how the accident occurred. They did not support the prosecution case. They resiled their own statements made before the police at the earliest point of time. The learned

A.P.P. declared as hostile witnesses. Their 161 Cr.P.C. statements are marked as Ex.P3 to Ex.P6.

16. PW.8 is the mother of the deceased she stated that she came to know about the accident through phone. Immediately she went to the hospital, her daughter died at KIMS hospital. PWs.9, 10, PW.12, PW.14 also deposed the same facts. Hence, their evidence no way helpful to the prosecution case.

17. PW.11 is the photographer who photographed the crime vehicle at the scene of offence on 01-04-2016 and he also took the photos deceased/Murapaka Durga at the hospital. He handed over the photos along with the CD to the police. On perusing the entire record, the photos were no filed by the prosecution. Only CD is marked as Ex.P10.

18. PW.13 is the inquest panchayati dar in this case. He deposed that he acted as a inquest panchayatidar over the dead body of the deceased/

Murapaka Durga. He identified his signature on the inquest report marked as

Ex.P11.

21. PW.15 and PW.16 are the Investigating Offices in this case.

PW.16 deposed that on 01-04-2016 at about 4-30 p.m., while he was present at the police station, PW.1 gave a complaint, basing on which he registered a 7 case in Cr.No.28/2016 for the offence u/s.338, 337 of IPC and investigated into the case.

21. He further deposed that During the course of investigation, he visited the scene of offence, prepared Ex.14 observation report in the presence of mediators. On the same day he examined PW.2 to 7 and PW.13 and recorded their statements. On 07-04-2016 PW.1 came to the Police station and gave a report about the death intimation of deceased Murapaka Durga, he altered the FIR u/s.304-A, 338 of IPC. Later he visited the KIMS hospital,

Srikakulam and conducted inquest over the dead body of the deceased

Murapaka Durga in the presence of the panchayatidars and sent the dead body for Post Mortem examination. On 01-04-2016 he issued u/s.41-A Cr.P.C.

notice to the accsued. Thereafter he sent requisition to Motor Vehicle

Inspector for inspecting the crime vehicle. Later he handed over the case file to PW.15 for further investigation.

22. PW.15 deposed that after receipt of relevant documents and completion of investigation, he filed charge sheet.

23. On observing the entire record and the evidence of prosecution witnesses, PW.1 is the defacto complainant in this case, he did not support the prosecution case. He came to know the accident through some body. His evidence is hearsay in nature. PW.2 to 7 are direct witnesses in this case.

They turned hostile and stated that they do not know how the accident occurred and they did not state the vehicle number or driver particulars. Hence their evidence is no way helpful to the prosecution case.

24. PW.13 is the inquest panchayatidar in this case. He did not state anything about the incident and accused.

8

25. The only evidence is available on record is the Investigating

Officers. It is needless to say that their evidence cannot be taken into consideration because the evidence of material witnesses is lacking. The prosecution could not examine the Motor Vehicle Inspector who inspected the crime vehicle, or Doctors who conducted autopsy over the dead body of the deceased and issued wound certificate of PW.7. As such it is held that the prosecution has failed to prove the guilt of the accused for the offence punishable U/s 304-A, 338 of IPC beyond reasonable doubt.

27. In the result, the accused is found not guilty for the offence punishable u/sec. 304-A, 338 of IPC. Hence, he is acquitted u/s. 255 (1)

Criminal Procedure code for the said offence. The bonds and bail bonds of the accused shall stand canceled after six months u/s.437-A Cr.P.C.

Dictated to the stenographer, transcribed by him, corrected and

pronounced by me in the open court on this the 07th day of June, 2019.

Sd/- J.Kishore Kumar

Spl. Judl. Magistrate of I Class,

Prohibition and Excise Court,Srikakulam

Appendix of evidence

Witnesses examined.

For prosecution: PW.1/: Murapaka Ramulu PW.2/: Pesarla Laxmanarao PW.3/: Kommu Laxmi PW.4/: Murapaka Appanna PW.5/: Kommu Simhadri PW.6/: Korada Appalanaidu PW.7/: Routhu Someswararao PW.8/: Murapaka Ramanamma PW.9/: Murapaka Vishnu PW.10/:Murapaka Janardhana PW.11/Kalisetti Krishna PW.12/Naru Chinna PW.13/Raghumandala Krishnarao PW.14/Darapu Devi PW.15/Ch.Ramarao, Sub-Inspector of Police PW.16/G.Rambabu, Head Constable.

9

For defence: -None-

Documents marked.

For prosecution: Ex.P.1/dt.01-04-2016: Report given to Laveru P.S.by PW.1 Ex.P.2/dt.07-04-2016: Another report given to Laveru P.S. by PW.1 Ex.P.3/dt.01-04-2016: 161 Cr.P.C. statement of PW.2 Ex.P4/dt.01-04-2016: 161 Cr.P.C. statement of PW.3 Ex.P5/dt.01-04-2016: 161 Cr.P.C. statement of PW.4 Ex.P6/dt.01-04-2016: 161 Cr.P.C. Statement of PW.5 Ex.P7/dt.01-04-2016: 161 Cr.P.C. statement of PW.6 Ex.P8/dt.07-04-2016: 161 Cr.P.C. statement of PW.7 Ex.P9/dt.07-04-2016 :161 Cr.P.C. statement of PW.10 Ex.P10/dt. –nil- : C.D. Ex.P11/dt.07-04-2016: Inquest Report Ex.P12/dt.01-04-2016: 161 Cr.P.C. statement of PW.14 Ex.P13/dt.01-04-2016: First Information Report Ex.P14/dt.01-04-2016: Altered First Information Report Ex.P15/dt.01-04-2016: Scene observation Report Ex.P16/dt.07-04-2016: Postmortem Certificate Ex.P17/dt.18-04-2016: Motor Vehicle Inspector’s Report

For Defence: -NIL-

Sd/- J.Kishore Kumar

Spl. Judl. Magistrate of I Class, Prohibition and Excise Court, Srikakulam.

//True copy//

Spl. Judl. Magistrate of I Class, Prohibition and Excise Court, Srikakulam 10

IN THE COURT OF SPECIAL JUDICIAL MAGISTRATE OF I CLASS,

PROHIBITION AND EXCISE COURT, SRIKAKULAM

CALENDAR AND JUDGMENT

C.C.NO. 183/2017

Date of offence: 01-04-2016 Date of Complaint or report:01-04-2016 Date of apprehension of accused:14-04-2016 (u/s.41-A Cr.P.c. notice) Date of release on bail: 14-04-2016 Date of commencement of trial: 07-08-2018 Date of close of trial: 16-04-2019 Date of sentence or order: 07-06-2019 Explanation for delay: On 04-07-2018 accused was examined u/s.251 Cr.P.C. On 10-09-2018 Pws.1 and 2 were examined. On 01-10-2018 PWs.3 to PW.7 were examined. On 22-10-2018 PW.8 to 11 were examined. On 02-11-2018 PW.12 was examined. On 29-11-2018 PW.13 was examined. On 03-01- 2019 PW.14 was examined. On 31-01-2019 PW.15 was examined. On 16-04-2019 PW.16 was examined. On 25-04-2019 accused was examined under section 313 Cr.P.C. On 09-05-2019 heard the arguments on both sides. On 07-06-2019 Judgment

pronounced.

Name of the complainant: The Sub-Inspector of Police, Laveru P.S. (Cr.No.28/2016)

Name of the accused Father’s Name Age

Kommu ChandraraoVenkanna23years Village Mandal Religion Occupation Pata RouthupetaLaveruHindu cooli

Offence: U/sec. 304-A, 338 of IPC: Causing death by rash or negligent act. Causing grievious hurt by an act which endangers human life etc.,

Finding: Accused isfound not guilty for the offence under sections 304-A, 338 of IPC. Sentence or Order:In the result, the accused is found not guilty for the offence punishable u/secs. 304-A, 338 of IPC. Hence, he is acquitted u/s. 255 (1) Criminal Procedure code for the said offence. The bonds and bail bonds of the accused shall stand canceled after six months u/s.437-A Cr.P.C.

Sd/- J.Kishore Kumar

Spl. Judl. Magistrate of I Class,

Prohibition and Excise Court, Srikakulam.

Copy submitted to the Hon’ble 1st Addl. District Judge, Srikakulam Copy to the Superintendent of Police Srikakulam. //True copy//

Spl.Judl.Magistrate of I Class, Prohibition and Excise Court, Srikakulam.

11 12

Accused called: present

Judgment pronounced in open court (Vide separate Judgment)

In the result, the accused is found not guilty for the offence punishable u/sec. 304-A, 338 of

IPC. Hence he is acquitted u/s.

255 (1) Criminal Procedure code for the said offence.The bonds and bail bonds of the accused shall stand canceled after six months u/s.437-A

Cr.P.C.

SPL.JFCM

P&E SKLM

13

1

IN THE COURT OF SPECIAL JUDICIAL MAGISTRATE OF I CLASS,

PROHIBITION AND EXCISE COURT, SRIKAKULAM.

PRESENT: Sri. J.Kishore Kumar,

Spl. Judl. Magistrate of I Class,

Proh.& Excise Court, Srikakulam . TUESDAY THIS THE 04thDAY OF JUNE, 2019.

CALENDAR CASE No.69/2018

Between:

The State represented by Sub-Inspector of Police, Etcherla Police Station.

...Complainant.

And:

Sattaru Polamma, W/o.late Ananda Rao, Age 60 years, Kalinga by caste, Fareedpeta village, Etcherla Mandal. ….Accused.

This case is coming on 14-05-2019 for final hearing before me in the presence of Learned Assistant Public Prosecutor for State-complainant and of Sri K. Srinivasa Rao learned Counsel for accused and upon hearing both sides and having stood over till this day for consideration, this Court delivered the following:

:: J U D G M E N T ::

1. The Sub Inspector of Police, Etcherla Police Station laid a charge sheet against the accused for the offence charged under section 34 (a) of the

Andhra Pradesh Excise Act, 1968.

2. The Brief case of the prosecution as per the charge sheet is as follows:

On 19-03-2018 at about 7-00 P.M., PW.2 Sub inspector of police,

Etcherla Police station, along with his staff PW.1 Head Constable, 260,

LW.1/K.Ramana Rao, PC.1238, LW.2/P.Srinivasarao PC.238 of Etcherla P.S.

conducting patrolling duty at Fareedpeta village limits of Etcherla Mandal and found the Accused in possession of 05 nip bottles of Imperial Blue whisky each one 180 ml., 03 King Fisher Beer bottles each one 650 ml., 01 nip bottle of MC Dowel 180 ml., 01 nip bottle of Directors special fine whisky 180 ml., Total 10 bottles. On interrogation he revealed his name and address 2 and also confessed that he purchased the liquor bottles from Wines shops to sell the same for higher prices to make some profit without having any licence or permit. Then PW.2 took one bottle as sample in seized contraband for chemical analysis, After explaining the offence to the accused, seized the property and arrested the accused under the cover of occurrence report drafted at the scene of offence by PW.1. Basing on that report PW.2 registered a case in Cr. No. 42/2018 for the offence Under section 34 (a) of the Andhra

Pradesh Excise Act, 1968. Later he released the accused on self bond by following u/s.41-A Cr.P.C. notice. Later PW.2 sent the samples to the chemical examiner, Visakhapatnam for analysis and received the chemical analysis report shows that samples are Indian made liquor and after completion of entire investigation, he filed charge sheet. Hence, the Charge sheet.

3. This case was taken on file under section 34(a) of A.P.Excise Act against the accused. After appearance of accused before this court, case copies were furnished to her u/s 207 of Cr.P.C.

4. Accused was examined U/s 239 of Cr.P.C. A charge framed Under section 34 (a) of the Andhra Pradesh Excise Act, 1968 was read over and explained to her in Telugu, for which she pleaded not guilty and claimed to be tried. To prove the case, the prosecution examined PW.1 and PW.2 and marked Exs.P1 to Ex.P3 and M.Os.1 to 4. Learned APP given up the witnesses LW.1/K.Ramanarao, PC.1238, LW.2/P.Srinivasarao, PC.238,

LW.4/Smt.V.V.Padmaja, Asst.Chemical Examiner, Visakhapatnam as LWs.1 and 2 evidence is corroborate evidence of PW.1. The evidence of LW.4 is given up as Chemical analysis report is marked through PW.2 investigating officer.

3

5. After closure of the prosecution evidence, the accused was examined u/s.313 Cr.P.C. so as to enable him to explain the incriminating circumstances appearing against her in the evidence of prosecution witnesses. She denied the same and did not choose to let in either oral or documentary evidence on her behalf.

6. The arguments of A.P.P. and defence counsel heard.

7. Now the point for determination is:

“Whether the prosecution has proved the guilt of the accused

for the offence charged under section 34 (a) of the Andhra Pradesh Excise

Act, 1968 beyond all reasonable doubt?”

8. After considering the arguments on both sides and Scrutinizing entire evidence of prosecution, P.W.2 who is the Sub inspector, Etcherla P.S.

deposed about conducting raids and seizure of 05 nip bottles of Imperial Blue whisky each one 180 ml., 03 King Fisher Beer bottles each one 650 ml., 01 nip bottle of MC Dowel 180 ml., 01 nip bottle of Directors special fine whisky 180 ml., Total 10 bottles. from the accused drafting the occurrence report by

PW.1, arresting the accused. And about registering First Information Report as

Cr. No. 42/2018 for the offence under section 34 (a) of the Andhra Pradesh

Excise Act, 1968. During the course of investigation, samples were sent for chemical analysis. The Chemical Examiner in turn, after due analysis of the sample, sent opinion that the said samples are Indian made liquor. After completion of investigation, he filed charge sheet. The occurrence report,

First Information Report, Chemical Analysis report are Marked as Ex.P1 to P3.

The Sample bottles are marked as M.O.1 to 4. The evidence of PW.1 is only he accompanied with PW.2 about the participation of the raids and drafting

Ex.P1 occurrence report. Hence, his evidence is no way helpful to the prosecution case.

4

9. The evidence of P.W1 and PW.2 who are police personnel cannot be discarded on the sole ground that their evidence is found to be incredible or it is unsafe to rely upon their evidence. Our lordship decided on this aspect which was reported in Kalpnath Rai vs State (Through Cbi) 1997 (2) ALD Cri 805 where in it was observed by the Hon'ble Apex Court that:

“Indeed, the evidence of the official (police) witnesses cannot be discarded

merely on the ground that they belong to the police force and are, either

interested in the investigation or the prosecuting agency but prudence dictates

that their evidence needs to be subjected to strict scrutiny and as far as possible

corroboration of their evidence in material particulars should be sought. Their

desire to see the success of the case based on their investigation; requires greater care to appreciate their testimony.”

But, the rule of Prudence is that the Testimony of a Official (Police)

Witness shall be corroborated, In order to prove the case of the Prosecution beyond all reasonable doubt. Even though there was possibility for PW.2 the

Sub inspector, Etcherla P.S. and PW.1 Police constable, Etcherla P.S. to secure independent mediators, it was not done. And the evidence of PW.1 and

PW.2 failed to establish any cogent Proof of the same. Except for stating that efforts were made to secure mediators, no proof is filed for the same. The evidence of P.W.2 that the accused was found in possession of Liquor bottles cannot be relied on, without any corroboration. When the evidence of P.W1 and 2 is excluded from consideration, there remains no evidence on record to connect the accused with the commission of said offence. The prosecution failed to prove the seizure in the presence of mediators as contemplated U/s 100(4) of Cr.P.C, and the case of prosecution is clouded with shadow of doubt.

Even it was held by our High Court in Botcha Raju Vs State represented by Inspector of Police ( 1994(2) ALT 69(AP) ) where in it was held conviction cannot be based on the sole evidence of Police officers without corroboration by disinterested witness. And in Gyan Singh and Ors. v. State 5 of U.P , 1995 Supp (4) SCC 658, wherein the Hon'ble Supreme court of India, observed that conviction cannot be based on uncorroborated testimony of official witnesses. Hence, as per Section 100(4) of Cr.P.C and relying upon the above case law, accused is entitled for benefit of doubt. The search, seizure and arrest of the accused is in contravention of sec 100(4) of Cr.P.C as the above section itself envisages to secure any of the inhabitants of the locality as mediator.

10. PW.1 and PW.2 could have secured the presence of any of the villagers who are available to act as mediators from the village. And it is not a rule of prudence to convict the accused without any corroborating evidence.

Therefore, in such circumstances, the accused in this case is entitled to benefit of doubt. Hence, In view of the above circumstances, prosecution has failed to prove the guilt of the accused for the offence charged under section 34 (a) of the Andhra Pradesh Excise Act, 1968 beyond all reasonable doubt.

11. In the result, Accused is found not guilty for the offence charged under section 34 (a) of the Andhra Pradesh Excise Act, 1968. She is acquitted u/s. 248(1) of Cr.P.C for the said offence. The bonds and bail bonds of accused shall stand cancelled after six months u/s.437-A Cr.P.C. M.O.1 to 4 shall be destroyed after expiry of appeal time.

Dictated to Stenographer, typed by him, corrected and pronounced by me in the

open court on this the 04th day of June, 2019.

Sd/- J.Kishore Kumar

Special Judl. Magistrate of I Class,

Prohibition & Excise Court, Srikakulam.

Appendix of Evidence

Witness Examined

For Prosecution: For Defence:

PW.1/P.Krishna Rao, HC.260 -NIL- PW.2/Y.Krishna , Sub-Inspector of Police 6

Exhibits Marked

For Prosecution: For Defence:

Ex.P1: Occurrence Report dated 19-03-2018 -NIL- Ex.P2: First Information Report dated 19-03-2018 Ex.P3: Chemical Analysis Report dated 28-04-2018

Material Objects :

M.O.1: sample bottle of Imperial Blue whisky 180 ml., M.O.2: sample bottle of King Fisher Beer bottle 650 ml., M.O.3: sample bottle of MC Dowel 180 ml., M.O.4: sample bottle of Directors special fine whisky 180 ml.,

Sd/- J.Kishore Kumar

Special Judl. Magistrate of I Class,

Prohibition & Excise Court, Srikakulam.

//True copy//

Special Judl. Magistrate of I Class, Prohibition & Excise Court, Srikakulam.

7

IN THE COURT OF THE SPL JUDICIAL MAGISTRATE OF 1 ST

CLASS, PROH.& EXCISE COURT, SRIKAKULAM

CALENDAR AND JUDGMENT

C.C.NO.69/2018

Date of offence:19-03-2018 Date of Complaint or report:19-03-2018 Date of apprehension of accused:19-03-2018 Date of release on bail: 19-03-2018 41-A Cr.P.C. notice Date of commencement of trial: 10-08-2018 Date of close of trial: 08-02-2019 Date of sentence or order: 04-06-2019 Explanation for delay: On 11-07-2018 accused was examined u/s.239 Cr.P.C. for the offence u/s.34(a) of A.P.Excise Act. On 28-09-2018 PW.1 was examined. On 08-02-2019 PW.2 was examined. On 14-03-2019 accused was examined u/s.313 Cr.P.C. On 14-05-2019 heard the arguments on both sides. On 04-06-2019 Judgment pronounced. Name of the complainant: The Sub-Inspector of Police, Etcherla P.S. (Cr.No.42/2018) Name of the accused Husband’s Name Age

Sattaru Polamma Late Ananda Rao60Years Village Mandal Religion Occupation FaredpetaEtcherlaHindu panshop

Offence: U/s. 34(a) of A.P. Excise Act: Imports, exports, transports, manufactures, collects or possesses any intoxicant.

Finding: Accused is found not guilty for the offence under section 34(a) of A.P. Excise Act.

Sentence or Order:In the result, Accused is found not guilty for the offence charged under section 34 (a) of the Andhra Pradesh Excise Act, 1968. She is acquitted u/s 248(1) of Cr.P.C. The bonds and bail bonds of accused shall stand cancelled after six months u/s.437-A Cr.P.C. M.O.1 to 4 shall be destroyed after expiry of appeal time.

Sd/- J.Kishore kumar

Spl.Judl. Magistrate of 1 st Class

Proh.& Excise Court, Srikakulam.

Copy submitted to the Hon’ble 1st Addl. District Judge, Srikakulam. Copy to theDeputy Commissioner of Prohibition & Excise, Srikakulam.

//True copy//

Spl.Judl. Magistrate of 1 st Class Proh.& Excise Court, Srikakulam 8

Accused called: Present

Judgment pronounced in open court (Vide separate Judgment)

In the result, Accused is found not guilty for the offence charged under section 34 (a) of the Andhra Pradesh Excise Act, 1968. She is acquitted u/s. 248(1) of Cr.P.C. The bonds and bail bonds of accused shall stand cancelled after six months u/s.437- A Cr.P.C. M.O.1 to 4 shall be 9 destroyed after expiry of appeal time.

SPL.JFCM

P&E SKLM

1

IN THE COURT OF SPECIAL JUDICIAL MAGISTRATE OF I CLASS,

PROHIBITION AND EXCISE COURT, SRIKAKULAM.

PRESENT: Sri. J.Kishore Kumar,

Spl. Judl. Magistrate of I Class,

Proh.& Excise Court, Srikakulam . TUESDAY THIS THE 04thDAY OF JUNE, 2019.

CALENDAR CASE No.167/2018

Between:

The State represented by Sub-Inspector of Police, J.R.Puram Police Station.

...Complainant.

And:

Simma Laxmi, W/o.Late Somaraju, Age 25 years, Yatha by caste, Garikapalem village, Ranasthalam Mandal. ….Accused.

This case is coming on 15-05-2019 for final hearing before me in the presence of Learned Assistant Public Prosecutor for State-complainant and of Sri J.Raja Rao learned Counsel for accused and upon hearing both sides and having stood over till this day for consideration, this Court delivered the following:

:: J U D G M E N T ::

1. The Sub Inspector of Police, J.R.Puram Police Station laid a charge sheet against the accused for the offence charged under section 34 (a) of the

Andhra Pradesh Excise Act, 1968.

2. The Brief case of the prosecution as per the charge sheet is as follows:

On 18-05-2018 at about 2-45 P.M., PW.2 Sub Inspector of police,

J.R.Puram Police station, along with his staff PW.1 Police Constable, 746

LW.1/K.Laxmana Rao, PC.1065, LW.3/K.Santhikumar WPC.1370,

LW.5/P.Eswara Rao PC.767 of J.R.Puram P.S. conducted raids at

Garikapalem village, Cinema hall center near Laxmi Kirana shop at

Ranastalam Mandal and found the Accused in possession of 08 nip bottles of

Gold Riband Elite whisky each one 180 ml., 05 nip bottles of Every day whisky each 180 ml., and 03 Royal Stag fine whisky each 180 ml., total 16 2 bottles. On interrogation he revealed his name and address and also confessed that he purchased the liquor bottles from Wines shops to sell the same for higher prices to make some profit without having any licence or permit. Then

PW.2 took one bottle as sample in seized contraband for chemical analysis,

After explaining the offence to the accused, seized the property and arrested the accused under the cover of occurrence report drafted at the scene of offence by

PW.1. Basing on that report PW.2 registered a case in Cr. No. 59/2018 for the offence Under section 34 (a) of the Andhra Pradesh Excise Act, 1968.

Later he released the accused on self bond by following u/s.41-A Cr.P.C.

notice. Later PW.2 sent the samples to the chemical examiner, Visakhapatnam for analysis and received the chemical analysis report shows that samples are

Indian made liquor and after completion of entire investigation, he filed charge sheet. Hence, the Charge sheet.

3. This case was taken on file under section 34(a) of A.P.Excise Act against the accused. After appearance of accused before this court, case copies were furnished to her u/s 207 of Cr.P.C.

4. Accused was examined U/s 239 of Cr.P.C. A charge framed Under section 34 (a) of the Andhra Pradesh Excise Act, 1968 was read over and explained to her in Telugu, for which she pleaded not guilty and claimed to be tried. To prove the case, the prosecution examined PW.1 and PW.2 and marked Exs.P1 to Ex.P4 and M.Os.1 to 3. Learned APP given up the witnesses LW.1/K.Laxmanarao, PC.1065, LW.3/K.Santhikumar, WPC.1370,

LW.4/U.Srinivasarao, Government Chemical Examiner, Visakhapatnam,

LW.5/P.Eswararao PC.767 of J.R.Puram P.S.

3

5. After closure of the prosecution evidence, the accused was examined u/s.313 Cr.P.C. so as to enable him to explain the incriminating circumstances appearing against her in the evidence of prosecution witnesses. She denied the same and did not choose to let in either oral or documentary evidence on her behalf.

6. The arguments of A.P.P. and defence counsel heard.

7. Now the point for determination is:

“Whether the prosecution has proved the guilt of the accused

for the offence charged under section 34 (a) of the Andhra Pradesh Excise

Act, 1968 beyond all reasonable doubt?”

8. After considering the arguments on both sides and Scrutinizing entire evidence of prosecution, P.W.2 who is the Sub inspector, J.R.Puram P.S.

deposed about conducting raids and seizure of 08 nip bottles of Gold Riband

Elite whisky each one 180 ml., 05 nip bottles of Every day whisky each 180 ml., and 03 Royal Stag fine whisky each 180 ml., total 16 bottles from the accused drafting the occurrence report by PW.1, arresting the accused. And about registering First Information Report as Cr. No. 59/2018 for the offence under section 34 (a) of the Andhra Pradesh Excise Act, 1968. During the course of investigation, samples were sent for chemical analysis. The

Chemical Examiner in turn, after due analysis of the sample, sent opinion that the said samples are Indian made liquor. After completion of investigation, he filed charge sheet. The occurrence report, First Information Report, Letter of

Advise, Chemical Analysis report are Marked as Ex.P1 to P4. The Sample bottles are marked as M.O.1 to 3. The evidence of PW.1 is only he accompanied with PW.2 about the participation of the raids and drafting Ex.P1 occurrence report. Hence, his evidence is no way helpful to the prosecution case.

4

9. The evidence of P.W1 and PW.2 who are police personnel cannot be discarded on the sole ground that their evidence is found to be incredible or it is unsafe to rely upon their evidence. Our lordship decided on this aspect which was reported in Kalpnath Rai vs State (Through Cbi) 1997 (2) ALD Cri 805 where in it was observed by the Hon'ble Apex Court that:

“Indeed, the evidence of the official (police) witnesses cannot be discarded

merely on the ground that they belong to the police force and are, either

interested in the investigation or the prosecuting agency but prudence dictates

that their evidence needs to be subjected to strict scrutiny and as far as possible

corroboration of their evidence in material particulars should be sought. Their

desire to see the success of the case based on their investigation; requires greater care to appreciate their testimony.”

But, the rule of Prudence is that the Testimony of a Official (Police)

Witness shall be corroborated, In order to prove the case of the Prosecution beyond all reasonable doubt. Even though there was possibility for PW.2 the

Sub inspector, J.R.Puram P.S. and PW.1 Police constable, J.R.Puram P.S. to secure independent mediators, it was not done. And the evidence of PW.1 and

PW.2 failed to establish any cogent Proof of the same. Except for stating that efforts were made to secure mediators, no proof is filed for the same. The evidence of P.W.2 that the accused was found in possession of Liquor bottles cannot be relied on, without any corroboration. When the evidence of P.W1 and 2 is excluded from consideration, there remains no evidence on record to connect the accused with the commission of said offence. The prosecution failed to prove the seizure in the presence of mediators as contemplated U/s 100(4) of Cr.P.C, and the case of prosecution is clouded with shadow of doubt.

Even it was held by our High Court in Botcha Raju Vs State represented by Inspector of Police ( 1994(2) ALT 69(AP) ) where in it was held conviction cannot be based on the sole evidence of Police officers without corroboration by disinterested witness. And in Gyan Singh and Ors. v. State 5 of U.P , 1995 Supp (4) SCC 658, wherein the Hon'ble Supreme court of India, observed that conviction cannot be based on uncorroborated testimony of official witnesses. Hence, as per Section 100(4) of Cr.P.C and relying upon the above case law, accused is entitled for benefit of doubt. The search, seizure and arrest of the accused is in contravention of sec 100(4) of Cr.P.C as the above section itself envisages to secure any of the inhabitants of the locality as mediator.

10. PW.1 and PW.2 could have secured the presence of any of the villagers who are available to act as mediators from the village. And it is not a rule of prudence to convict the accused without any corroborating evidence.

Therefore, in such circumstances, the accused in this case is entitled to benefit of doubt. Hence, In view of the above circumstances, prosecution has failed to prove the guilt of the accused for the offence charged under section 34 (a) of the Andhra Pradesh Excise Act, 1968 beyond all reasonable doubt.

11. In the result, Accused is found not guilty for the offence charged under section 34 (a) of the Andhra Pradesh Excise Act, 1968. She is acquitted u/s. 248(1) of Cr.P.C for the said offence. The bonds and bail bonds of accused shall stand cancelled after six months u/s.437-A Cr.P.C. M.O.1 to 3 shall be destroyed after expiry of appeal time.

Dictated to Stenographer, typed by him, corrected and pronounced by me in the

open court on this the 04th day of June, 2019.

Sd/- J.Kishore Kumar

Special Judl. Magistrate of I Class,

Prohibition & Excise Court, Srikakulam.

Appendix of Evidence

Witness Examined

For Prosecution: For Defence:

PW.1/B.Kameswararao, PC.1065 -NIL- PW.2/V.Satyanarayana, Sub-Inspector of Police 6

Exhibits Marked

For Prosecution: For Defence:

Ex.P1: Occurrence Report dated 18-05-2018 -NIL- Ex.P2: First Information Report dated 18-05-2018 Ex.P3: Letter of Advise dated 18-05-2018 Ex.P4: Chemical Analysis Report dated 18-07-2018

Material Objects :

M.O.1: sample bottle of Gold Riband Elite whisky 180 ml., M.O.2: sample bottle of Every day whisky 180 ml., M.O.3: sample bottle of Royal Stag fine whisky 180 ml.,

Sd/- J.Kishore Kumar

Special Judl. Magistrate of I Class,

Prohibition & Excise Court, Srikakulam.

//True copy//

Special Judl. Magistrate of I Class, Prohibition & Excise Court, Srikakulam.

7

IN THE COURT OF THE SPL JUDICIAL MAGISTRATE OF 1 ST

CLASS, PROH.& EXCISE COURT, SRIKAKULAM

CALENDAR AND JUDGMENT

C.C.NO.167/2018

Date of offence:18-05-2018 Date of Complaint or report:18-05-2018 Date of apprehension of accused:18-05-2018 Date of release on bail: 18-05-2018 41-A Cr.P.C. notice Date of commencement of trial: 08-10-2018 Date of close of trial: 07-03-2019 Date of sentence or order: 04-06-2019 Explanation for delay: On 01-10-2018 accused was examined u/s.239 Cr.P.C. for the offence u/s.34(a) of A.P.Excise Act. On 24-10-2018 PW.1 was examined. On 06-03-2019 PW.2 was examined. On 14-03-2019 accused was examined u/s.313 Cr.P.C. On 15-05-2019 heard the arguments on both sides. On 04-06-2019 Judgment pronounced. Name of the complainant: The Sub-Inspector of Police, J.R.Puram P.S. (Cr.No.59/2018) Name of the accused Husband’s Name Age

Simma Laxmi Late Somaraju25Years Village Mandal Religion Occupation GarikapalemRanastalamHindu panshop

Offence: U/s. 34(a) of A.P. Excise Act: Imports, exports, transports, manufactures, collects or possesses any intoxicant.

Finding: Accused is found not guilty for the offence under section 34(a) of A.P. Excise Act.

Sentence or Order:In the result, Accused is found not guilty for the offence charged under section 34 (a) of the Andhra Pradesh Excise Act, 1968. She is acquitted u/s 248(1) of Cr.P.C. The bonds and bail bonds of accused shall stand cancelled after six months u/s.437-A Cr.P.C. M.O.1 to 3 shall be destroyed after expiry of appeal time.

Sd/- J.Kishore Kumar

Spl.Judl. Magistrate of 1 st Class

Proh.& Excise Court, Srikakulam.

Copy submitted to the Hon’ble 1st Addl. District Judge, Srikakulam. Copy to theDeputy Commissioner of Prohibition & Excise, Srikakulam. //True copy//

Spl.Judl. Magistrate of 1 st Class Proh.& Excise Court, Srikakulam.

8

Accused called: Present

Judgment pronounced in open court (Vide separate Judgment)

In the result, Accused is found not guilty for the offence charged under section 34 (a) of the Andhra Pradesh Excise Act, 1968. She is acquitted u/s. 248(1) of Cr.P.C. The bonds and bail bonds of accused shall stand cancelled after six months u/s.437-A Cr.P.C. M.O.1 to 3 shall be destroyed after expiry of appeal time.

SPL.JFCM

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1

IN THE COURT OF SPECIAL JUDICIAL MAGISTRATE OF I CLASS,

PROHIBITION AND EXCISE COURT, SRIKAKULAM.

PRESENT: Sri. J.Kishore Kumar,

Spl. Judl. Magistrate of I Class,

Proh.& Excise Court, Srikakulam . TUESDAY THIS THE 04thDAY OF JUNE, 2019

CALENDAR CASE No.321/2018

Between:

The State represented by Prohibition and Excise Sub Inspector, Prohibition and Excise Station,

Srikakulam. .....Complainant.

And:

Gudla Satyanarayana, S/o.Ramanayya, Age 38 years, Vysya by caste, R/o.Tulugu village of Gara mandal. …Accused.

This case is coming on 15-05-2019 for final hearing before me in the presence of Assistant Public Prosecutor for State and of Sri N.Chinna rao learned advocate for the accused and upon hearing both sides and having stood over till this day for consideration and this court delivered the following:

JUDGEMENT

1. The Sub-Inspector of Police, Prohibition and Excise Station, Srikakulam laid a charge sheet against the accused for the offence charged U/s 34(a) of

A.P.Excise Act.

2. The Succinct summary of the case of the prosecution as per the charge sheet is as follows:

On 16-11-2017 at about 12-10 p.m., Proh. & Excise Sub-Inspector (P.W-1) conducted patrolling duty along with his staff LW.1/D.Muralikrishna,

Prohibition and Excise Constable, LW.2/ P.Nagabhushana Rao, Prohibition and

Excise Head Constable Srikakulam when they reached at Tulugu village limits of Gara Mandal, found the accused in possession of 12 nip bottles of

Directors special fine whisky each 180 ml., Then tried for mediators but in vain.

2

Then Seized the contraband and drawn one sample in seized contraband, arrested the accused under the cover of occurrence report.

Basing on the occurrence report, the sub Inspector of police, registered

F.I.R as Cr. No. 281/2017 for the offence Under section 34 (a) of the Andhra

Pradesh Excise Act, 1968 and released the accused on self bail by following u/s.41-A Cr.P.C. notice. After completion of entire investigation,

LW.4/B.Nagaveni, Prohibition and Excise Inspector filed charge sheet.

Hence, the Charge sheet.

3. After appearance of accused, case copies were furnished to him u/s. 207 of Cr.P.C. He was examined U/s 239 of Cr.P.C. A charge U/s. 34 (a) of A.P

Excise Act was framed. Read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.

4. In the trial afforded by both parties, prosecution cited 04 witnesses. LW.3

E.Krishna, Prohibition and Excise Sub-inspector Examined as PW-1, the remaining witnesses LW.1/D.Muralikrishna, Prohibition and Excise Constable,

LW.2/P.Nagabhushana Rao Prohibition and Excise Head constable

Srikakulam. LW.4/B.Nagaveni, Prohibition and Excise Inspector, Srikakulam were given up by the prosecution as LWs.1 and 2 are similar evidence to PW.1.

LW.4 is given up as main Investigating Officer is examined and all are marked.

Ex.P.1 to P.4 and M.O.1 are marked.

5. After completion of prosecution evidence, accused was examined U/s 313 of Cr.P.C. Incriminating material was read over and explained to him in

Telugu for which he denied and reported no defence. No exhibits were marked in “D” series.

6. Heard both sides.

7. Now the point for determination is:

3

“Whether the prosecution has proved the guilt of the accused for the

offence charged U/s 34 (a) of A.P Excise Act beyond all reasonable

doubt?”

8.Much was argued by both sides. Scrutinizing entire evidence of prosecution, P.W-1 is the Excise Sub-Inspector, Srikakulam. P.W-1 deposed about conducting raids, seizing of I.D liquor and arresting accused under the cover of occurrence report and registering F.I.R as Cr No. 281/2017 for the offence U/s. 34(a) of A.P Excise Act and sent the samples for chemical analysis.

9. The evidence of P.W-1 who is excise police personnel cannot be discarded on the sole ground that his evidence is found to be incredible or it is unsafe to rely upon his evidence. Our lordship decided on this aspect which was reported in Karanjit Singh Vs State (Delhi Administration) ( 2004

Crij.2010(SC) where in it was observed by the Hon'ble Apex Court that:- “The testimony of a police officer should be treated in the same manner as the testimony of any other witness. There is no principle of law that without corroboration by independent witness, the testimony of police officer cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons. It is not a proper judicial approach to distrust and suspect the police officer without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down”. But, when the offence is carrying stringent punishment it is a duty of the prosecution to prove the case beyond all reasonable doubt.

There is possibility for securing independent mediators, but that was not done so. There is no specific reason or explanation offered by the excise official's for their non securing of local mediator. Even there is no evidence to 4 whom they requested to act as mediator. In such circumstances the evidence of

P.W-1 needs corroboration by independent evidence. The evidence of P.W-1 that the accused was found in possession of liquor cannot be relied on. When the evidence of P.W-1 was excluded from consideration, there remains no evidence on record to connect the accused with the commission of said offence.

When the prosecution failed to prove the seizure in the presence of mediator's as contemplated U/s 100(4) of Cr.P.C, the case of prosecution is clouded with shadow of doubt.

Even it was held by our High Court in Botcha Raju Vs State represented by Inspector of Police ( 1994(2) ALT 69(AP) ) where in it was held conviction cannot be based on the sole evidence of Police officers without corroboration by disinterested witness.

Hence, as per Section 100(4) of Cr.P.C and relying upon the above case law, accused is entitled for benefit of doubt.

The search, seizure and arrest of the accused is in contravention of sec 100(4) of Cr.P.C as the above section itself envisages to secure any of the inhabitants of the locality as mediators. So non availability of V.R.O and

Surpanch is not just and reasonable explanation for their non securing independent mediators since many of the villagers are available to act as mediators and the evidence of P.W-1 is found to be artificial, stereotype, conviction is not proper basing on this type of evidence without independent corroboration.

Therefore, in such circumstances, the accused in this case is entitled for benefit of doubt. Hence, from the discussion made supra, prosecution has failed to prove the guilt of the accused for the offence charged U/s 34(a) of A.P

Excise Act beyond all reasonable doubt.

5

11. In the result, Accused is found not guilty for the offence charged under section 34 (a) of the Andhra Pradesh Excise Act, 1968. He is acquitted u/s. 248(1) of Cr.P.C. The bonds and bail bonds of accused shall stand cancelled after six months u/s.437-A Cr.P.C. M.O.1 shall be destroyed after expiry of appeal time.

Dictated to stenographer transcribed by him, corrected and pronounced

by me in the open court on this the 4th day of June, 2019.

Sd/- J.Kishore Kumar

Special Judl. Magistrate of I Class,

Prohibition & Excise Court, Srikakulam.

Appendix of Evidence

Witness Examined

For Prosecution: For Defence:

P.W1/E.Krishna -NIL- Proh.&Excise Sub-Inspector.

Exhibits Marked

For Prosecution: For Defence:

Ex.P1: Occurrence Report dated 16-11-2017 -NIL- Ex.P2: First Information Report dated 16-11-2017 Ex.P3: Letter of Advise dated 16-11-2017 Ex.P4: Chemical Analysis Report dated 22-12-2017

Material Objects :

M.O.1: sample bottle of Directors special fine whisky 180 ml.,

Sd/- J.Kishore Kumar

Special Judl. Magistrate of I Class,

Prohibition & Excise Court, Srikakulam

//True copy//

Special Judl. Magistrate of I Class, Prohibition & Excise Court, Srikakulam 6

IN THE COURT OF THE SPL JUDICIAL MAGISTRATE OF 1 ST

CLASS, PROH.& EXCISE COURT, SRIKAKULAM

CALENDAR AND JUDGMENT

C.C.NO.321/2018

Date of offence:16-11-2017 Date of Complaint or report:16-11-2017 Date of apprehension of accused:16-11-2017 Date of release on bail: 16-11-2017 41-A Cr.P.C. notice Date of commencement of trial: 18-12-2018 Date of close of trial: 23-01-2019 Date of sentence or order: 04-06-2019 Explanation for delay: On 03-12-2018 accused was examined u/s.239 Cr.P.C. for the offence u/s.34 (a) of A.P.Excise Act. On 21-12-2018 PW.1 was examined. On 06-02-2019 accused was examined u/s.313 Cr.P.C. On 15-05-2019 heard the arguments on both sides. On 04-06-2019 Judgment pronounced. Name of the complainant: The Sub-Inspector of Police, Proh.& Excise Srikakulam (Cr.No. 281/2017) Name of the accused Father’s Name Age

Gudla Satyanarayana Ramanayya 38 years Village Mandal Religion Occupation Tulugu Gara Hindu Panshop

Offence: U/s.34(a) of A.P. Excise Act: Imports, exports, transports, manufactures, collects or possesses any intoxicant.

Finding: Accused is found not guilty for the offence under section 34(a) of A.P. Excise Act.

Sentence or Order:In the result, Accused is found not guilty for the offence charged under section 34 (a) of the Andhra Pradesh Excise Act, 1968. He is acquitted U/s 248(1) of Cr.P.C. The bonds and bail bonds of accused shall stand cancelled after six months u/s.437-A Cr.P.C. M.O.1 shall be destroyed after expiry of appeal time.

Sd/- J.Kishore Kumar

Spl.Judl. Magistrate of 1 st Class

Proh.& Excise Court, Srikakulam.

Copy submitted to the Hon’ble 1st Addl. District Judge, Srikakulam. Copy to theDeputy Commissioner of Prohibition & Excise, Srikakulam.

//True copy//

Spl.Judl. Magistrate of 1 st Class Proh.& Excise Court, Srikakulam 7

Accused Called: present.

Judgment pronounced in open court (Vide separate Judgment)

In the result, Accused is found not guilty for the offence charged under section 34 (a) of the Andhra

Pradesh Excise Act, 1968. He is acquitted U/s. 248(1) of Cr.P.C. The bonds and bail bonds of accused shall stand cancelled after six months u/s.437-A Cr.P.C. M.O.1 shall be destroyed after expiry of appeal time.

SPL.JFCM

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