C.C.No.61/2015 1 Excise Court, MTM
In the Court of Special Judicial I-Class Magistrate, For Trying
Prohibition & Excise Cases, Machilipatnam
Present: Sri.K.Guru Aravind,
II-A.J.C.J-CUM-II.A.J.M.F.C, Machilipatnam
FAC/Spl.Judicial I-Class Magistrate, Trying P & E Cases, MTM
Wednesday, this the 3 rd day of April, 2019
C.C.No.61 of 2015
Between:
State, represented by The Sub Inspector of Police, Robertsonpet Police Station. … Complainant.
And
1. Tatiparthi Satyaveni @ Satya, W/o Chilipi Krishnaiah, Age 29 years, R/o Drivers Colony, Machilipatnam now at Gandhi Bomma Center, Gannavaram.
2. Tatiparthi Chilipi Krishnaiah @ Chilipi Krishna, S/o Late Surya Prakasha Rao, Age 32 years, Drivers Colony, Machilipatnam.
3. Vanapalli Kalyana Kumar, S/o Suri Babu, Age 25 years, R/o Gowdapet, Gannavaram.
4. Vanapalli Suri babu, S/o Ramulu, Age 53 years, R/o Innispet, Rajahmandry, now at Gowdapet, Gannavaram.
5. Vanapalli Eswari, W/o Suribabu, Age 47 years, R/o Innispet, Rajahmandry, now at Gowdapet, Gannavaram. (ABATED) ... A1 to A5.
This case is coming before me on this 03.04.2019 for final hearing in the presence of Assistant Public Prosecutor for complainant and Sri.G.V.Ramana, counsel for A1, A3 & A4 and Sri.P.S.R.K.Prasad, counsel for A2, and the matter stood over for consideration till this day, this Court delivered the following;
J U D G M E N T
1. The Sub Inspector of Police, Robertsonpet Police Station filed a charge sheet in Cr.No.65/2012 against A1 to A5 for the offences punishable under sections 420, 408, 427, 506 r/w 34 of Indian Penal Code,1860 (herein after referred to as 'IPC' for sake of brevity).
2. The brief facts of the prosecution case is:
PW.1/Chinta Venkata Ramana Rao is eking out his lively hood by running a optical shop in the name and style of Jai Bharath Opticlas at Rajagari
Centre, tie up with Sai Ratna Eye Hospital. In connection with his job at
Hyderabad, on 28.11.2011 PW.1 deputed A1 as a cashier-cum-sales woman and her husband A2 as office boy-cum-Assistant Sales Man in his said optical shop.
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PW.1 handed over the stock to the accused on 28.11.2011 vide stock book No.1 value of Rs.5,76,999/- and stock hand over the accused vide book No.2
Rs.92,377.75/-, and later PW.1 was purchased and sent the stock to the accused to a tune of Rs.3,92,902/-, total of Rs.10,62,278.75/-. PW.1 used to visit his shop from Hyderabad on 1st of every month and verified the monthly accounts and went to Hyderabad on the same day. The same was taken as advantage, both
A1 & A2 with a common and evil intention to cheat PW.1, on every visit of PW.1 to his shop, they shown only day book and they told the bill book kept in their house and believing him with their words by saying that if he stayed, they will shown the bill book and the accused took advantage that cheated him by changing the accounts to a tune of Rs.3,55,128/- in different dates. On 13.07.2012 at 10.00 hours when PW.1 verified the day book and it is learnt that
A1 & A2 with an intention to cheat PW.1, A1 & A2 shown the sales up to 31.05.2012 as Rs.1,17,738/- and stock handover value Rs.6,39,184.75 to PW.1.
Then, PW.1 found the misappropriation in stock by the accused to a tune of
Rs.3,05,356/-. On verification of the bills and daily sales register, A1 & A2 used to misappropriated the amounts i.e., jumbling totals from daily sales cash entered in the cash book, issuing cash bills by less rates instead of original price and did not enter the some bills in the cash book. A1 & A2 took the orders from the customers for lesser price and sold the articles to the customers for lesser rate and also showed the amount in daily cash register less than the amount paid by the customers. As like A1 & A2 misappropriated the cash to a tune of
Rs.14,508/- and misappropriated the sales Rs.35,264/-. The accused totally misappropriated the amount of Rs.3,55,128/-. In this regard when PW.1 questioned them and they told that they will be shown the bill books at 7.00 p.m., but A1 to A5 came to the shop of PW.1, threatened him with dire consequences and when A1 to A5 tried to beat PW.1, PW.2/B.Gandhi Kumar who is supervisor in Sri Sai Ratna Eye Hospital came and admonished A1 to A5 and they beat PW.2 indiscriminately and broken the glasses and frames and caused loss to PW.1. Later all the accused skulked away from that place. PW.1 gave a
C.C.No.61/2015 3 Excise Court, MTM report about the occurrence, in turn PW.13/S.J Kennedy registered a case in
Cr.No.65/2012 under sec.420, 408, 427, 506 IPC on 13.07.2014 at 16.00 hours and took up investigation.
During the course of investigation, PW.13 visited the scene of offence, examined the same and prepared rough sketch of the scene of offence. He examined as many as 17 witnesses and recorded their statements. On 07.09.2012 PW.12/Anwar Baig (ASI) arrested A4 & A5 and on 10.09.2012
LW.22/A.Jagajjeevanram (H.C.) arrested A3 and sent them for judicial custody.
On 14.09.2012 LW.22/A.Jagajjeevanram (H.C.) arrested A2 in the presence of mediators, under cover of mediators report, dt:14.09.2012. On 17.09.2013
PW.12/ASI arrested A1 in the presence of mediators and A1 voluntarily confessed that she cheated PW.1 by creating false account. A1 & A2 sent to judicial custody. After completion of investigation LW.25/P.Murali Krishna, S.I of
Police filed charge sheet against A1 to A5 under sec.420, 408, 427, 506 r/w 34
IPC. Thus, the accused 1 & 2 with a view to cheat PW.1, misappropriated sales, stocks and shows the false account to PW.1 to a tune of Rs.3,55,128/- and A1 to
A5 damaged the glasses at the shop of PW.1 and threatened him with dire consequences.
3. This case was taken cognizance for the offence under Sec.420, 408 IPC against A1 & A2, sec.427, 506 r/w 34 IPC against A1 to A5, and issued summons to A1 to A5.
4. On appearance of A1 to A5 before this Court, copies of documents as contemplated under Sec.207 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C') were furnished and when A1 to A5 were examined under Sec.239 Cr.P.C for which they denied the charge sheet allegations, thereafter charge under sec.420, 408 r/w 34 IPC against A1 & A2, sec.427, 506 r/w 34 IPC were framed against A1 to A5, read over and explained to them in Telugu for which they pleaded not guilty and claimed to be tried.
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5. During trial, the prosecution got examined P.Ws.1 to 13 and got marked Exs.P1 to P.112.
6. During the course of trial, on 12.04.2016 case against A5 is Abated as she died.
7. After closure of prosecution side evidence, the Accused No. 1 to 4 were examined under section 313 Cr.P.C. by putting the incriminating material appearing in the evidence of prosecution witnesses, for which they denied the same. On behalf of defence, A2 is examined as DW.1, Ex.D.1 & Ex.D.2 are marked.
8. Heard the learned Assistant Public Prosecutor and the learned defence counsels for A1 to A4. Perused the evidence and material on record.
9. Now the points for determination are :
Whether the prosecution has proved the guilt of A1 to A4
beyond reasonable doubt for the offences under Sec.408, 420,
427, 506 r/w 34 IPC?
10. Point:- The case of the prosecution in nutshell is that PW.1 is the owner of Jai Bharath opticals, running it in connection with Sai Rathna Eye hospital, at Rajagari centre, Machilipatnam. There after in view of his employment at Hyderabad, he appointed A1/T.Satyaveni and his husband
A2/T.Chilipi Krishna as staff to look after the shop, and he went to Hyderabad, and PW.1 comes to Machilipatnam on 1st of every month to check the business.
As the matter stood like thus, taking the absence of PW.1 as advantage, A1 and
A2 decided to misappropriate the monies in the shop, and thereby to cheat the
PW.1. As such PW.1 on 13-7-2012, when he verified the accounts, he came to know that A1 and A2 cheated him by misappropriating the monies to a tune of
Rs.3,55,128/- and when he questioned the A1 about her criminal acts, A1 replied that she will come around 07-00 pm in the evening with the bill books, and then
A1 immediately called A2 to A5, and they outraged the PW.1 and tried to beat
C.C.No.61/2015 5 Excise Court, MTM the PW.1, at that time PW.2/Gandhi who was working as super visor at Sai Ratna hospital came to rescue the PW.1, that time all the accused abused the PW.2 in filthy language, and destroyed all the glass frames in the shop, abused in a filthy language and A1 to A5 escaped away from there.
11. It is the contention of the learned Assistant Public Prosecutor that the prosecution by examining P.Ws.1 to 13 could able to establish that the accused 1 and 2, being the wife and husband, and employees in Jaibharath opticals, had misappropriated the shop amounts and cheated the PW.1, and therefore requested the Court to convict the accused according to law.
12. On the other hand, it is the contention of the learned defence counsels, that basing on the hypothetical calculations, the prosecution has made allegation against the accused without any basis. The prosecution failed to produce any document to show that the accused 1 and 2 worked as employ- ees in the shop of PW.1. The counsel for A2 argued that, though there was a marriage relation between A1 and A2, but they obtained divorce by mutual con- sent and they are living separately as such there is no nexus between A1 and
A2. The evidence of P.Ws.1 to 13 are inconsistent with each other. There is no corroboration from the independent witnesses. The alleged bill books does not contain any legal certifications which are generally given to any business enti- ties like Vat number, TIN number, A.P.G.S.T and C.S,T, as such they have no le- gal sanctity. Though prosecution made allegation that mischief of spectacles frames had occurred, the I.O failed to collect any of the alleged damaged spec- tacles, which proves that it is a bald allegation. Both the counsels argued that, with ulterior and oblique motive, PW.1 intentionally filed this case falsely implicating the accused only to harass them, and prayed for to acquit the accused.
13. To prove its case the prosecution has examined P.Ws.1 to 13. P.W.1 is the owner of the shop Jai Bharath Opticals, PW.2 is the supervisor at Sai Ratna
Eye hospital. PW.3 to 10 are the customers who purchased the opticals from the shop. PW.11 is the mediator. PW.12 and 13 are the investigating officers.
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14. One of the charge leveled against the accused is the Criminal Breach of Trust. In order to establish this charge, the prosecution must be able to establish that the accused 1 and 2 are the employees of the Jai Bharath
Opticals, and they were entrusted with dominion over the property and that the accused 1 and 2 dishonestly misappropriates or converts the property for their own use or dispossess of that property in-violation of the direction of law, then only the accused 1, 2 are liable for the offence under Section 406 IPC.
15. To prove this aspect the prosecution examined the owner of the Jai
Bharat opticals as P.W.1. In his evidence P.W.1 stated that he had deputed A1 as cashier cum saleswoman and her husband A2 as office Boy and assistant sales man in his shop. PW.1 stated in cross examination that he gave appointment of
A2 and attendance register of the A2 in his firm to the police to show that A2 is an employee in his shop. The Investigating Officer/PW.13 , in his cross examina- tion categorically admitted that: “It is true I have not collected any document to show that A2 is working in the shop of PW.1”. Neither P.W.1, nor P.W.11 have pro- duced any document before the Court to show that the accused 1 and 2 are the employees of Jai Bharath opticals either temporarily or permanent. And as PW.1 is alleging that he is running a opticals shop and it is involved in transaction of laksh of rupees, and as the nature of business is completely a specialized one i.e, sale of opticals, in normal prudence it is clear that a normal lay man can not be appointed as the employees in such positions, where atleast some sort of technical knowledge is required. What it can be inferred from the allegations of
PW.1 is that, PW.1 completely handed over the shop to A1 and A2, and A1 is do- ing the cashier cum sales woman in that shop, and A2 is assistant to her, and
PW.1 is indulged in his work at Hyderabad and he visits only once in a month.
This infers that PW.1 has to attend and completely maintain all the works in the opticals shop as like taking the order of the spectacle frames, the lenses of ac- curate power according to the sight of the customers as prescribed by the doctor and other works, which definitely requires a lot of technical knowledge,
C.C.No.61/2015 7 Excise Court, MTM medical knowledge and accounts also. In such a case, only such person can be appointed who will be having some sort of authentic qualification in optometrist and accounts, and such a person in noway can not be appointed on a daily wage basis without any documentation process as like a layman. Definitely some sort of agreement or appointment or offer letter, must exist to show such a person
A1 & A2 are appointed as saleswoman cum cashier and assistant salesman in the opticals shop. No single piece of evidence like appointment or offer letter, or attendance register, or their salary statement, is present in the record to show that A1 and A2 are the employees in the shop of PW.1. Evidently in the case on hand, no document is provided to the Court, to believe that PW.1 ap- pointed A1 as sales woman-cum-cashier, and A2 as officer boy and assistant sales man in the Jai Bharath opticals shop of PW.1.
16. Thus, the prosecution failed to establish the essential ingredients of entrustment of property. Unless, the prosecution could able to show that the accused 1,2 are the employees or worker in the shop of PW.1 – Jai Bharath opticals, then there is no question of entrustment of property and dominion over the property.
17. PW.1 stated in his report/Ex.P.1 that on 1st day of every month he vis- its to his shop at Machilipatnam and checks the accounts of the shop and he returns on the same day. PW.1 deposed before the Court that on 31st of every month he used to come Machilipatnam and after verification of the accounts in his opticals shop and after providing salaries to the A1 and A2, on the next day i.e., 1st he used to go to Hyderabad. The evidence of PW.1 is inconsistent with his statement in the Ex.P.1. It is to observe that the PW.1 failed to depose atleast on which day he comes to Machilipatnam form Hyderabad to check his ac- counts, this casts doubt as to the veracity in the version of the prosecution.
18. The documentary evidence available in the case is Ex. P1 to P.112.
1. Ex.P.1 is the report of PW.1 Dt.13-7-2012, given to the R.Pet police station.
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2. There are totally 6 bill books with serial No’s. 54 to 59 written on them, marked as ExP 101 to Ex.P.106 respectively.
Out of these bill books, some leafs contained in them are marked as fol- lows:
a. Ex.p2 is the bill in Ex.P.101 b. Ex.P3 to 24 are the bills in Ex.P.102 c. Entire bill book with Number 56 is marked as Ex.P.103, but no indivi- adal leafs in it are marked d. Ex.p25 to 47 are the bills in Ex.P.104 e. Ex.P 48 to 61 are the bills in Ex.P.105 f.EX.P 62 to 73 are the bills in Ex.P.106
3. Ex.P74 is the Entry in daily account at cash book-I, dt:03.03.2012.
4. Ex.P.75: Entry in daily account cash book No.2, dt:22.03.2012.
5. Ex.P76 is the stock book number 1 from Dt 28-11-2011 to 31-5-12
6. Ex.P77 to EX.P84 are the entries in the stock book number 2 at various pages, showing that the boxes, 9 pairs, 34 leg sets, 67 plastic and fiber opticals spare parts legs, 37 nose pads, 11 contact kids and 87 costly covers are missing.
7. Ex.P.85 is the Bill dt:09.02.2012 received from PW.3.
8. Ex.P.86 is the Bill dt:09.02.2012 received from LW.4/S.Srihari.
9. Ex.P.87 is the Bill dt:10.02.2012 of PW.4.
10. Ex.P.88 is the Bill dt:19.12.2011 of PW.9.
11. Ex.P.89 is the Bill, dt:12.03.2012 of PW.10.
12. Ex.P.90 is the Bill dt:21.03.2012 of LW.9/Shaik Khaleel.
13. Ex.P.91 is the Bill, dt:12.12.2012 of LW.10/G.Sanjivarao
14. Ex.P.92 is the Bill dt:18.02.2012 of LW.12/K.Someswara Rao.
15. Ex.P.93 is the Bill dt:05.03.2012 of PW.6.
16. Ex.P.94 is the Bill dt:21.04.2012 of PW.7.
17. Ex.P.95 is the Bill dt:14.12.2012 of PW.8.
18. Ex.P.96 is the Bill dt:17.12.2012 of LW.17/Thota Kishore.
19. Ex.P.97 is the Daily accounts and cashbook No.1 2011 to 2012.
20. Ex.P.98 is the Daily accounts and cashbook No.2, 2012.
21. Ex.P.99 is the Stock book No.1, 2011 to 2012.
22. Ex.P.100 is the Stock book No.2, 2011 to 2012.
23. Ex.P.107 is One C.D.
24. Ex.P.108 are the Photos 8 in number.
25. Ex.P.109 is the Mediators report, dt:14.09.2012.
26. Ex.P.110 is the Original FIR, dt:13.07.2012.
27. Ex.P.111 is the Rough sketch of the scene of offence.
28. Ex.P.112: Mediators report, dt:17.09.2013.
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19. Out of the above documentary evidence, the Ex.P 101 to Ex.P.106 are the bill books with serial number 55 to 59 written on them in handwriting and out of them some bills are marked as Ex.P 2 to P73. If we peruse them i.e.,
Ex.P.101 to 106, only the first two pages are printed with a specific structure or format of the bill. The remaining all pages which will amount to nearly 98 pages, in all bill books i.e, Ex.P.101 to 106 are just plain rose color papers. Only first two pages in all the bill books are printed in the format of a bill. Even in those bills of first two pages also , the Vat TIN NO.; A.P.G.S.T Rc VJA; C.S.T are kept blank.
PW.1 admitted that ex.P85 to 96 are computer generated bills if such is the case, then where is the question of existence of bill books. For every customer, after their purchase, the bill will be generated by a computer, as per the admis- sion of PW.1. PW.1 also admitted that the bills Ex.P 2 to P73 and Ex.P.101 to 106 does not contain Tin number and license number. This clearly proves that PW.1 him self is not with clean hands. If at all really PW.1 was maintaining his shop as per the prescribed rules and regulations, then he would have definitely men- tioned about the license number of his shop, tin number and Vat number on every bill. The remaining pages, excepting starting 2 pages, in Ex.P.101 to 106 ought to have printed with prescribed bill format. Where the PW.1 himself is not properly running the shop according to the rules and regulations prescribed by the law, he can not claim the remedies provided by law, for any mis happenings which would occurred in such unorganized business. At this juncture the argu- ment of the defence counsel that PW.1 himself is doing unlawful business in opticals also gains weight. This shows that PW.1 is lacking bonafides. Therefore the prosecution failed to prove the credibility of bill books Ex.P.101 to 106, which comprises Ex.P2 to Ex.P73, there by creating doubt in the case of the prosecu- tion.
20. As per the Ex.P.1 the mis appropriation mentioned by PW.1 is
Rs.3,55,128, and it came to PW.1’s knowledge, when he verified the day book at about 10-00 am. PW.1 did not mentioned the date on which day he checked the day books to know that mis-appropriation had occurred. And the only date
C.C.No.61/2015 10 Excise Court, MTM mentioned in Ex.P.1 is 13-07-2012, which is written in the hand writing below the signature of PW.1. Then it has to infer that PW.1 came to know about the alleged misappropriation of Rs.3,55,128 on 13-7-2012 at about 10-00 am while he was checking the daily book. But PW.1 deposed before the Court that as on 31-5-2012, he found that A1 and A2 misappropriated cash of Rs.3,55,128/- and on that he presented report on 31-5-2012 against A1 and A2, as such A1 and A2 requested to the police to give 15 days of time for repayment of amount. PW.1 stated that there after accused failed to pay the amount, and all the accused abscond by locking their houses. PW.1 stated that as accused intend to compro- mised the matter, police had kept aside PW.1’s report which was given on 31-5- 2012, but police asked PW.1 to mentioned the date on his report as per the di- rection of the police. This clearly shows that the Ex.P.1 is completely drafted after due deliberations. If at all PW.1 had really went to the police station and presented a report against the accused on 31-5-2012, then the police ought to have produced the same i.e., the report of PW.1 dt:31.05.2012 before the Court.
But except Ex.P.1 no other report is there on record. The evidence of PW.1 that police asked him not to mention the date on Ex.P.1 and later as per the direction of police he mentioned the date on Ex.P.1 as 13-7-2012, is not tenable, and not safe to believe the same. If at all really all the accused and PW.1 went to the police station on 31-5-2012 then some sort of evidence ought to have been pro- duced before the Court to show that, all the accused and PW.1 were present
before the police and accused requested time of 15 days for repayment, like
some undertaking or signature of the A1 and A2. But nothing like that is produced before the Court to believe that PW.1 went to the police station on 31-5-2012 itself. Even if we assume PW.1 and accused went to the police sta- tion on 31-5-2012 and at their request police had given 15 days of time, then af- ter lapse of such time, in the case of non payment, PW.1 would have assuredly vis- ited the police station, say atleast with a gap of 2 to 3 days. But surprisingly the Ex.P.1 was presented on 13-7-2012, where in nearly one and half month of delay or gap is existing between the events of alleged date of incident and date of presentation of
Ex.P.1.
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21. In cross examination PW.1 admits that on 31-5-2012 he gave report to the R.Pet P.S. and since police did not took any action basing on the report
Dt.31-5-2102, PW.1 had presented a report to the police on 13-7-2012. This ad- mission clearly shows that PW.1 had presented two reports on different dates, as police did not took any action on his earlier report. The version of the prose- cution that police requested the PW.1 not to mention the date on the report and gave time to the accused for repayment did not withstand in the cross examination. As per the cross examination the reason for representation of the report by PW.1 is, the lack of action of the police. As per admission of PW.1, there should be two reports, evidently on record there is only one report
Dt.13-7-2102, this gives weight to the argument of the learned defence counsel that, the contents of Ex.P.1 are completely fabricated one after due delibera- tions with the police, to match and support the case, as such intentionally the earlier report is not produced before the Court, wherein the accused are inno- cent. This clearly raises doubt in the Court of mind as to the truthfulness in the version of the prosecution.
22. The allegation against A1 and A2 is that they have misappropriated the stock of PW.1, worth of Rs.3,55,128/-. To prove this, in the first place, PW.1 has to establish that he had originally purchased the various stocks worth of
Rs.3,55,128/-. Evidently no such original bills which proves that PW.1 had pur- chased the stock and he kept it in the shop are produced before this Court.
Ex.P99 i.e,. stock book No.1 for the years 2011 to 2012, contains some num- bers and dates in handwriting. Ex.P.100 is also a stock book NO.2 for the year 2011 to 2012 which contains the some numbers and dates written in hand writ- ing , comprising Ex’s P77 to 84. On perusal of these Ex’s.P99, Ex.P.100 and Ex.P 77 to 84, it is comprehended that they are nothing but two notebooks, written in handwriting comprising of some dates and serial numbers. Definitely in no way they amounts, to the legal proof to show that PW.1 had originally purchased the stock worth of Rs.3,55,128/-. Thus prosecution miserably failed to prove that
PW.1 was originally in possession of stock worth of Rs.3,55,128/-.
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23. The Ex.P.107 and P.108 are the C.D. and photographs. On their pe- rusal, they try to depict that, inside a room some chairs and some spectacles frames are thrown down. Except that neither the PW.1, nor the accused, nor any name board to show that it is Jai bharath opticals is forthcoming from that philosophy. hence Ex.P.107 and P.108 serves no purpose.
24. As per PW.1 the alleged incident took place on 31-5-2012, and it was witness by PW.2. But PW.2 deposed before the Court that alleged incident took place on 31-7-2012. The evidence of PW.2 is quite contrary to that of PW.1. PW.1 stated in Ex.P.1 that when PW.2 tried to rescue the PW.1, accused beat the PW.2 indiscriminately. But surprisingly PW.2 no where deposed before the Court that he was beat indiscriminately by the accused. PW.2 only deposed that he was pushed down. The Jai bharat optical shop is located at Raja gari centre. PW.2 admits that since 8 years he is working as office boy in Sai Ratna eye hospital which is located at Pedana. As per general knowledge, the pedana and Rajagari centre, Machilipatnam are far away places to each other separated by nearly 09 kilometers. PW.2 admitted that from morning 09-00 a.m. to evening 9-00 p.m.
he will be in Sai Ratna hospital, at Pedana. In such case, the version of the prosecution that PW.2 rescued the PW.1, where PW.1 being separated by a distance of 09 kms is highly unbelievable and it is a false.
25. PW.3/S.Anantha Lakshmi deposed that in the year 2012 she pur- chased opticals at Jai Bharath optical shop for Rs.400. she paid advance of
Rs.200/-. PW.3 admitted that she did not know how much power glass, she pur- chased PW.3 admitted that she does not know the particulars on which date she contacted the eye specialist and on which date the doctor had prescribed.
this evidence is no way helpful either to prove the alleged misappropriation or cheating or mischief against the accused.
26. Pw4 deposed that he purchased spectacles after 10-8-2012, evi- dently this date is much after the date of lodging the report i.e, 13-7-2012.
Hence the evidence of PW.4 is no way useful, to prove the alleged incident which had happened prior to 13-7-2012.
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27. PW.5 deposed that he purchased the spectacles from Jai Bharath opticals in the month of May 2012. PW.5 deposed that except this he does not know anything. This evidence is no way useful, to prove the allegations against the accused.
28. PW.6 deposed that he knows the accused A1 to A4 as they were the workers in jai Bharath opticals. His eye doctor told him that accused committed some fraud in Jai Bharath opticals. PW.6 deposed that except that he does not know anything about his case. PW.6 vaguely said the he came to know that accused committed some fraud. This evidence is hearsay, and it serves no purpose in proving the charges against the accused.
29. PWs.7 to 9 deposed that they does not know the accused and they does not know anything about this case and police never examined them. as such the testimonies of Pws.7 to 9 serves no purpose.
30. PW.10 is declared as hostile, and though cross examined at length by the APP, nothing useful is elicited except marking his 161 Cr.P.C. statement.
31. PW.11 is the mediator. He deposed that on 14-09-2012 he was requested by the police of R.Pet P.S to act as mediator. As such they went to
Ganganamma temple, drivers colony, Machilipatnam and one person tried to es- cape on seeing them. police apprehended that person and he revealed himself as the A2 in this case. PW.11 deposed that A2 confessed that he and his wife A1 are working in Jai Bharat opitcals and they in greed of extra money they have misappropriated some money in the said shop and on knowing the same PW.1 has removed them, and that on one day they went to the shop of PW.1 and altercated with him. Ex.P.109 is the mediators report on which PW.11 subscribed his signature. PW.11 in cross examination admitted that Ex.P.109 does not con- tain any door number where A2 was apprehended. PW.11 admitted that he had acted as mediator in numerous cases upon the request of police, say up to 30.
PW.11 admitted that he does not know where Ex.P.109 is drafted by the police.
PW.11 further admits that he does not know the persons who signed on
Ex.P.109. PW.11 finally admits that he does not know the contents of Ex.P.109.
C.C.No.61/2015 14 Excise Court, MTM from this admission it is clear that PW.11 is a stock witness of the police, and he does not know the contents of mediators report Ex,P109. As such no credibility can be given to the evidence of PW.11.
32. A2/Chilipi Krishnaiah entered as defence witness and deposed as
Dw1. He deposed that he got married with A1 in the year 2005 and they lived together up to 2009. Since 2009 Dw1 is living separately from A1. Ex.D1 is the copy of the order showing divorce is granted to A2 and A1. Dw1 further stated that he is suffering from insanity and undergoing treatment for it in Guntur since 2008. He got marked the doctor prescriptions 10 in number as D2. Dw1 deposed that he never worked as an employee in anywhere much less as co employee with A1 at Jai Bharath opticals. The learned APP except putting a suggestion that he is intentionally deposing false to escape from the criminal liability, noth- ing is elicited to disbelieve the version of Dw1. The evidence of Dw1 coupled with Ex.D1 shows that A1 and A2 got divorce to their marriage, and they are liv- ing separately, then in such case prosecution to say that PW.1 gave employ- ment to A1 and A2 seeing as wife and husband, to believe the same is highly improbable.
32. PW.13 admits that Ex.P.111 does not contain the door number or other details of the optical shop i.e, scene of offence. PW.13 admits that he did not obtained the license of the shop showing PW.1 as the owner. PW.13 admitted that he had not enquired with the Municipal Authorities or labour officer to ascertain whether PW.1 was the real owner of Jai Bharath opticals shop as PW.1 did not shown any license. PW.13 admitted that Ex.P2 to P106 are the bills which does not contain VAT or TIN numbers and also does not contain the license number of the shop. PW.13 further admitted that bill books comprising Ex.P.2 to 9 can be printed by anyone at any printers shop. PW.13 admitted that he had not collected any any document to show that PW.1 had purchased the material worth of Rs.3,55,128/- which is alleged to be misappropriated in this case. This shows that PW.13 did not conducted the investigation properly and gives weight
C.C.No.61/2015 15 Excise Court, MTM to the argument of the defence counsel that PW.13 is influenced by PW.1 and conducted only table investigation and falsely implicated the accused.
33. In Gopal Singh Vs. State of Uttaranchal reported in 2007 Crl.L.J. 1972 (DB) wherein it was observed that “The FIR is very important document and the prompt FIR gives the confidence that it is a correct version and the facts which have been mentioned therein are correct. If the FIR has been lodged by undue delay, it should have been properly explained at the time of lodging the FIR. The delay in lodging the FIR shows that it was the outcome of due consultation or deliberation. FIR in a criminal case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them, the names of the eye-wit- nesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story”.
34. A perusal of Ex.P.1 reveals that it contains the date as 13-7-2012 and as per PW.1 the alleged incident took place on 31-5-2012, there is abnormal delay, which is not explained by the PW.1 or the investigation officer. Though
PW.1 took plea that police gave time to the accused to repay the monies, it is also sufficiently not proved. As because, as per the version of PW.1 there must be two reports given by him to the police, but only one report is produced by the police to the Court. So, this explanation given by PW.1 is not inspiring confi- dence of the Court. In such circumstances there is every possibility of consulta- tions and confabulations and which creates a doubt in the mind of the Court.
Our Hon'ble High Court in State Vs. Govardhana Reddy and another reported in 2013 (1) ALD (Crl.) 179 (AP) in the facts and circumstances of this kind of nature observed that:
C.C.No.61/2015 16 Excise Court, MTM
35. “There was a delay of nearly 15 months in registering the FIR. The delay has not been properly explained by the prosecution. The delay in filing the
FIR in this case is very much material and also fatal to the case of the prosecu- tion, because from the delay it can be understood that the bank was wavering in its decision to fix up the responsibility regarding to the act of misappropriation committed in the bank”.
36. In the case on hand also, prosecution failed to give the proper explana- tion for the delay occurred in lodging the Ex.P.1. As seen from the record, P.W.11 conducted a perfunctory investigation he has not conducted the investigation in accordance with law. In view of the perfunctory investigation and in view of the delay in lodging the report, and the occurrence of alleged incident, it is not safe to place reliance on the evidence of Prosecution witnesses to base conviction.
Thus, this Court is of the considered opinion that the prosecution failed to bring home the guilt of the accused beyond reasonable doubt and thus the accused is entitled for benefit of doubt. Accordingly, the accused 1 to 4 are entitled for an acquittal.
37. In the result, A1 & A2 are found not guilty of the offences punish- able under Section 420, 408 IPC, accordingly they are acquitted under
Sec.248(1) of Cr.P.C. Further A1 to A5 are found not guilty of the offences pun- ishable under sec.427, 506 r/w 34 IPC and they are acquitted under sec.248(1)
Cr.P.C. The bail bonds of A1 to A5 and that of their sureties if any, shall be in force for a period of six months. A1 to A5 shall furnish a bond under sec.437-A
Cr.P.C, that they shall appear before the Appellate Court in the event they re- ceive summons within six months from today. As there is no case property in this case, no specific order is passed. As per the docket order dt: 12.04.2016 case against A5 is Abated as she died.
Dictated to Stenographer Gr.III of II-A.J.M.F.C Court, MTM, transcribed by her, cor-
rected and pronounced by me in Open Court, this the 3rd day of April, 2019
Sd/-K.Guru Aravind,
II-A.J.C.J.-CUM-II.A.J.M.F.C,
FAC/Spl.J.F.C.M, for Trying P& E Cases, Machilipatnam .
C.C.No.61/2015 17 Excise Court, MTM
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
PROSECUTION: DEFENCE
PW.1: Ch.Venaka Ramana Rao DW.1:T.Chilipi Krishnaiah PW.2: B.Gandhi Kumar PW.3: S.Anantha Lakshmi PW.4: T.Padmavathi PW.5: R.Harshavardhan PW.6: K.Chandra Sekhar PW.7: Ch.Manjula PW.8: P.Rajasekhar PW.9: B.Sambasiva Rao PW.10: J.Adi Lakshmi PW.11: V.Gangadhar PW.12: Anwar Baig PW.13: S.J.Kennedy.
DOCUMENTS MARKED FOR PROSECUTION
Ex.P.1: Report given by PW.1 to the police, dt:13.07.2014. Ex.P.2: Entry in bill book no.54, dt:02.12.2011. Ex.P.3: Entry in bill book no.55, at bill number 11. Ex.P.4: Entry in bill book no.55, dt:09.12.2011. Ex.P.5: Entry in bill book no.55, dt:10.12.2011 at bill number 28. Ex.P.6: Entry in bill book no.55, dt:10.12.2011 at bill number 32. Ex.P.7: Entry in bill book no.55, dt:12.12.2011. Ex.P.8: Entry in bill book no.55, dt:16.12.2011. Ex.P.9: Entry in bill book no.55, dt:17.12.2011. Ex.P.10: Entry in bill book no.55, dt:19.12.2011. Ex.P.11: Entry in bill book no.55, dt:19.12.2011, bill No.52. Ex.P.12: Entry in bill book no.55, dt:17.12.2011, bill No.53. Ex.P.13: Entry in bill book no.55, dt:19.12.2011, bill No.55. Ex.P.14: Entry in bill book no.55, dt:20.12.2011. Ex.P.15: Entry in bill book no.55, dt:20.12.2011, bill No.66. Ex.P.16: Entry in bill book no.55, dt:24.12.2011. Ex.P.17: Entry in bill book no.55, dt:24.12.2011, bill No.77. Ex.P.18: Entry in bill book no.55, dt:24.12.2011, bill No.78. Ex.P.19: Entry in bill book no.55, dt:26.12.2011. Ex.P.20: Entry in bill book no.55, dt:26.12.2011, bill No.87. Ex.P.21: Entry in bill book no.55, dt:26.12.2011, bill No.88. Ex.P.22: Entry in bill book no.55, dt:20.12.2011, bill No.92. Ex.P.23: Entry in bill book no.55, dt:28.12.2011. Ex.P.24: Entry in bill book no.55, dt:28.12.2011, bill No.94. Ex.P.25: Entry in bill book no.57, dt:17.02.2012. Ex.P.26: Entry in bill book no.57, dt:17.02.2012 bill No.30. Ex.P.27: Entry in bill book no.57, dt:17.02.2012 bill No.31. Ex.P.28: Entry in bill book no.57, dt:18.02.2012. Ex.P.29: Entry in bill book no.57, dt:18.02.2012, bill No.36. Ex.P.30: Entry in bill book no.57, dt:17.02.2012. Ex.P.31: Entry in bill book no.57, dt:21.02.2012. Ex.P.32: Entry in bill book no.57, dt:22.02.2012. Ex.P.33: Entry in bill book no.57, dt:22.02.2012, bill No.53. Ex.P.34: Entry in bill book No.57, dt:22.02.2012, bill no.55. Ex.P.35: Entry in bill book No.57, dt:22.02.2012, bill no.57. Ex.P.36: Entry in bill book no.57, dt:23.02.2012. Ex.P.37: Entry in bill book no.57, dt:22.02.2012 bill no.60. Ex.P.38: Entry in bill book no.57, dt:23.02.2012 bill no.63. Ex.P.39: Entry in bill book no.57, dt:23.02.2012 bill no.64.
C.C.No.61/2015 18 Excise Court, MTM
Ex.P.40: Entry in bill book no.57, dt:24.02.2012. Ex.P.41: Entry in bill book no.57, dt:29.02.2012. Ex.P.42: Entry in bill book no.57, dt:01.03.2012. Ex.P.43: Entry in bill book no.57, dt:01.03.2012, bill no.84. Ex.P.44: Entry in bill book no.57, dt:01.03.2012, bill no.85. Ex.P.45: Entry in bill book no.57, dt:02.03.2012. Ex.P.46: Entry in bill book no.57, dt:05.03.2012. Ex.P.47: Entry in bill book no.57, dt:06.03.2012. Ex.P.48: Entry in bill book no.58, dt:06.03.2012. Ex.P.49: Entry in bill book no.58, dt:08.03.2012. Ex.P.50: Entry in bill book no.58, dt:09.03.2012. Ex.P.51: Entry in bill book no.58, dt:12.03.2012. Ex.P.52: Entry in bill book no.58, dt:12.03.2012, bill No.14. Ex.P.53: Entry in bill book no.58, dt:14.03.2012. Ex.P.54: Entry in bill book no.58, dt:14.03.2012. Ex.P.55: Entry in bill book no.58, dt:15.03.2012. Ex.P.56: Entry in bill book no.58, dt:16.03.2012. Ex.P.57: Entry in bill book no.58, dt:16.03.2012, bill No.29. Ex.P.58: Entry in bill book no.58, dt:21.03.2012. Ex.P.59: Entry in bill book no.58, dt:23.03.2012. Ex.P.60: Entry in bill book no.58, dt:23.03.2012, bill No.44. Ex.P.61: Entry in bill book no.58, dt:23.03.2012, bill no.45. Ex.P.62: Entry in bill book no.59, dt:18.04.2012. Ex.P.63: Entry in bill book no.59, dt:18.04.2012, bill no.18. Ex.P.64: Entry in bill book no.59, dt:21.04.2012. Ex.P.65: Entry in bill book no.59, dt:28.04.2012. Ex.P.66: Entry in bill book no.59, dt:04.05.2012. Ex.P.67: Entry in bill book no.59, dt:07.05.2012. Ex.P.68: Entry in bill book no.59, dt:8.05.2012. Ex.P.69: Entry in bill book no.59, dt:15.05.2012. Ex.P.70: Entry in bill book no.59, dt:16.05.2012. Ex.P.71: Entry in bill book no.59, dt:16.05.2012, bill NO.59. Ex.P.72: Entry in bill book no.59, dt:28.05.2012. Ex.P.73: Entry in bill book no.59, dt:29.05.2012. Ex.P.74: Entry in daily account at cash book-I, dt:03.03.2012. Ex.P.75: Entry in daily account cash book No.2, dt:22.03.2012. Ex.P.76: stock book No.1 from 28.11.2011 to 31.05.2012. Ex.P.77: Stock Book NO.2 page No.30, 31 at 32, 72. Ex.P.78: Entry in stock book in page No.34, 35, 36. Ex.P.79: Entry in stock book page No.40, 41. Ex.P.80: Entry in stock book page No.42,43, 44. Ex.P.81: Entry in stock book page No.46, 47. Ex.P.82: Entry in stock book page No.50, 51, 52. Ex.P.83: Entry in stock book page No.56, 57. Ex.P.84: Entry in stock book page No.60, 67. Ex.P.85: Bill dt:09.02.2012 received from PW.3. Ex.P.86: Bill dt:09.02.2012 received from LW.4/S.Srihari. Ex.P.87: Bill dt:10.02.2012 of PW.4. Ex.P.88: Bill dt:19.12.2011 of PW.9. Ex.P.89: Bill, dt:12.03.2012 of PW.10. Ex.P.90: Bill, dt:21.03.2012 of LW.9/Shaik Khaleel. Ex.P.91: Bill, dt:12.12.2012 of LW.10/G.Sanjivarao Ex.P.92: Bill dt:18.02.2012 of LW.12/K.Someswara Rao. Ex.P.93: Bill dt:05.03.2012 of PW.6. Ex.P.94: Bill dt:21.04.2012 of PW.7. Ex.P.95: Bill dt:14.12.2012 of PW.8. Ex.P.96: Bill dt:17.12.2012 of LW.17/Thota Kishore. Ex.P.97: Daily accounts and cashbook No.1 2011 to 2012. Ex.P.98: Daily accounts and cashbook No.2, 2012. Ex.P.99: Stock book No.1, 2011 to 2012.
C.C.No.61/2015 19 Excise Court, MTM
Ex.P.100: Stock book No.2, 2011 to 2012. Ex.P.101: Bill book dt:01.11.2011. Ex.P.102: Bill Book, dt:03.12.2011. Ex.P.103: bill book dt:31.12.2011. Ex.P.104: Bill book dt:09.02.2012. Ex.P.105: Bill book dt:06.03.2012. Ex.P.106: Bill Book, dt:12.04.2012. Ex.P.107: One C.D. Ex.P.108: Photos 8 in number. Ex.P.109: Mediators report, dt:14.09.2012. Ex.P.110: Original FIR, dt:13.07.2012. Ex.P.111: Rough sketch of the scene of offence. Ex.P.112: Mediators report, dt:17.09.2013.
DOCUMENTS MARKED FOR DEFENCE
Ex.D.1: Notarized copy of decree and order in O.P.No.770-2014, dt:21.04.2015. Ex.D.2: Opinion form by Dr.Phani Bhushan, Guntur along with prescriptions total in number 10 forms.
MATERIAL OBJECTS
-Nil -
Sd/-K.Guru Aravind,
II-A.J.C.J.-CUM-II.A.J.M.F.C,
FAC/Spl.J.F.C.M, for Trying P& E Cases, Machilipatnam.