Smt.K.Krishna Satya Latha

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS : PALASA

Present: Smt. K.Krishna Satya Latha, Judl Magistrate of I Class, Palasa

Tuesday, this the 19th day of May, 2020.

C.C.No.163 of 2017

Between:

Kaviti Bharathi, W/o. Thavitayya, aged about 35 years, resident of Santhalaxmipuram village, Meliyaputti Mandal, Srikakulam District, A.P..

... Complainant

And

Srinivas Das, S/o. Vaidyanadh Das, aged about 40 years, Attender, Railway Hospital, Railway Colony, Kasibugga, Srikakualm District, A.P.

... Accused

This case came up on this day for final hearing before me in the presence of Sri P. G. Raja Ratnam, learned Advocatefor the complainant and of Sri.P. Lakshminarayana, learned Advocate for the accused, upon hearing of both sides through video conference and upon perusal of the material on record and having stood over for consideration, this court delivered the following:

J U D G M E N T

1) This is the complaint filed under section 190 read with 200 of Code of Criminal Procedure for the offence punishable under section 138 read with 142 of Negotiable Instrument Act.

2) The essence of the complaint is that:

i)the accused borrowed an amount of Rs.,1,00,000/- from the complainant on 20.01.2015 by executing a demand promissory note in her favour, for his necessities with a stipulation to repay the same with interest @ 12% per annum on demand either to the complainant or her order. On demand the accused issued a cheque bearing No. 238668

dated 06.09.2016 for Rs.,1,00,000/- drawn on Bank of India,

Bhubhaneswar Branch, in favour of the complainant towards part payment. The complainant presented the said cheque in her banker i.e.,

State Bank of India, Palasa Branch for collection on 14.09.2016 and the same was dishonoured and returned on 14-09-2016 with an endorsement “Funds Insufficient”. As such, the complainant got issued the legal notice 2 to the accused on 24-09-2016 requiring to pay the amount covered under the cheque, having received the same he neither gave reply nor paid the cheque amount. Hence, the complainant filed this complaint.

3.Cognizance is taken under section 190(1)(a) of Code of Criminal

Procedure for the offence punishable under Section 138 r/w 142 of

Negotiable instrument Act.

4.On appearance of the accused, copies of documents were furnished to him as contemplated under rule 8 of Criminal Rules of

Practice.

5.The accused was examined under section 251 of Code of Criminal

Procedure. The sum and substance of the accusation made against him was read over and explained to him in Telugu, having understood the same, he denied the offence and claimed to be tried.

6.In order to establish the case of the complainant, the complainant herself is examined as P.W.1 and got summoned the Branch Manager,

State Bank of India, Palasa branch by name Sri K. V. S. H. Seshagiri Rao as P.W.2 and exhibited Exts. P.1 to Exts. P.4. In substantiation of the contention of the accused no oral or documentary evidence is adduced on behalf of the accused.

7.After completion of prosecution side evidence, the accused was examined under section 313 of Code of Criminal Procedure. All the incriminating material available in the evidence of prosecution witnesses is explained to him in Telugu, having understood the same he denied the offence and reported no defence evidence. The statement of the accused is that he never borrowed any amount from the complainant, the husband of the complainant, himself and One Jayashankar Das used to do real estate business jointly, they purchased a site at Gotlam Village in

Vizianagaram District, he gave his cheque book to them in the said transaction, thereafter the disputes arose among them, due to which cheques signed by him were fabricated and presented for collection and got filed this complaint through the complainant.

8. Heard both sides. The learned counsel for the complainant reiterated the contents of the complaint. The learned counsel for the accused contended that the complainant failed to establish the essential ingredients to fasten penal liability upon the accused. The complainant 3 has no financial capacity to lend such a huge amount and she filed four other complaints against him by fabricating the cheques. Since, the complainant failed to establish the essential requirements the accused is entitled to be acquitted.

9. In view of the rival contentions, now the points that require determination are:- (I)Whether the accused had borrowed a sum of Rs., 1,00,000/- from the complainant on 20.01.2015 and issued Ext.P.1 towards partial discharge of legally enforceable debt?

(ii) Whether the prosecution is able to establish the guilt of the accused for the offence punishable under section 138 read with 142 of Negotiable Instruments Act beyond reasonable doubt?

10. Point No.(i):-

(i)The simple case of the complainant as canvassed in the complaint, examination in chief and also arguments advanced on behalf of the complainant is that the accused borrowed a sum of Rs., 1,00,000/- from her on 20.01.2015 for his necessities by executing the demand promissory note in her favour agreeing to repay the same together with interest @ 12 % per annum payable either to the complainant or her order thereon. Subsequently, on her demands the accused issued Ext.P.1 in her favour, drawn on Bank of India, Bhabaneswar branch for Rs.

1,00,000/- towards the partial discharge of the said debt due under the said promissory note, she presented the same for collection in her banker viz., State Bank of India, Palasa Branch, but, the same was dishonoured with an endorsement “funds insufficient” under Ext.P.2. As such, on receipt of the same she got issued Ext.P.3. During the cross examination it was suggested to her that the signature appearing on Ext.P.1 and

Ext.P.4 are not similar and the same was denied by her. But, the accused did not deny the receipt of Ext.P.3 during his examination under section 313 of Code of Criminal Procedure. Thus, from the statement of accused, the factum of service of legal notice stood established. Furthermore, it is clear from the record that the legal notice was sent to the accused at the same very address upon which he was served with the summons of the 4 complaint. Thus, it is clear that Ext.P.3 the legal notice was sent at the correct address of the accused and therefore in view of the judgment of

Hon'ble Supreme Court reported as C.C. Alavi Hazi vs. Palapetti

Muhammed and Anrreported in 2007 (6) SCC 555, the notice is deemed to have been duly served upon the accused. It is further clear from the record that accused did not pay the cheque amount either within 15 days of the service of the legal notice or thereafter. It is also not disputed that the impugned cheque was issued by accused as he has not denied his signature on the cheque. Thus, it is clear from the record that all necessary requirements to constitute the offence under section 138

N egotiable I nstruments Act, have been fulfilled except that whether on the date of presentation of Ext.P.1 cheque by the complainant, the Ext.P.1 cheque was against due debt or was without consideration as claimed by the accused. This point will be discussed in the later part of the judgment and before making further discussions on the factual aspects of the case, it is deemed necessary to firstly discuss the relevant provisions of

Negotiable Instruments Act and the legal position which is required to be taken into consideration for appropriate disposal of the complaint under section 138 of N egotiable I nstruments Act.

(ii)The claim based under the provisions of Negotiable Instruments Act is an exception to the general rule of law that burden of proof lies on the prosecution. There are two specific provisions in Negotiable Instruments

Act i.e. section 118 (a) and 139 which contemplates that a presumption is attached in regard to each and every negotiable instrument that the same was drawn and issued against due discharge of the liability and thus, whenever any claim is made on the basis of a negotiable instrument, the presumption has to be drawn in favour of the holder of the cheque (drawee) and the law has put the burden to rebut the presumption on the accused that the cheque was not issued by him against discharge of a debt or a liability. In case, the accused is not able to rebut the presumption and fails to prove his defence, the presumption becomes absolute and it has to be assumed that the cheque was issued by the accused in discharge of debt or liability and consequently, accused has to be assumed guilty of the offence. The relevant provisions of section 118 5

(a) and section 139 of Negotiable Instruments Act reads as under:

Section 118 Presumptions to negotiable instruments: Until the contrary is proved, the following presumption shall be made:

(a) of consideration that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated, or transferred for consideration.

Section 139Punishment in favour of holder:

It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.

(iii)It has been held by Hon'ble Supreme Court in the case a between Hiten P. Dalal v. Bratindranath Banerjeereported in 2001 (6) SCC 16 that the presumption mentioned in the section 139 of NI Act, is a presumption of law and not the presumption of fact and thus, this presumption has to be drawn in favour of the drawee and burden to rebut the presumption with the probable defence is on the accused.

The relevant para of the aforesaid case law reads as under:

21. In other words, providedthe facts required to form the basis of a presumption of law exist, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists" [Section 3 : Evidence Act]. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man.

It has been held by the Hon'ble Supreme Court in the case of “ Rangappa v. Mohanreported in 2010 (11) SCC 441that presumption of section 139 of Negotiable Instruments Act also includes the existence of 6 legal enforceable debt.

….. Thus, in view of the law laid down by the Hon'ble Supreme

Court in the aforesaid cases, the presumption as contemplated under section 139 Negotiable Instruments Act has to be drawn in favour of the drawee that the cheque in question was issued in discharge of legally enforceable liability. Thus, in the present case also complainant was not required to prove that the Ext.P.1 subject cheque was issued by the accused towards the partial discharge of the debt due by him and initially, the claim of the complainant is to be assumed to be correct by drawing the presumption of section 139 of Negotiable Instruments Act and burden to rebut the presumption with his probable defence was on the accused.

(iii) The ultimate defence of the accused is total denial of transaction by and in between the complainant and himself and that the complainant fabricated the blank cheques by taking an advantage from the cheque book given by him to her husband and One Jayashankar in a real estate business transaction. In fact she had no financial capacity to lend such a huge amount and there is no legally enforceable debt due. The contention of the learned counsel for the complainant is that to rebut the legal presumption in favour of the complainant, at least the accused did not adduce any evidence, as such, an adverse inference can be drawn against him apart from the legal presumption in favour of the complainant as envisaged under section 139 of Negotiable Instruments Act. This court do not find any force in the arguments advanced by the learned counsel in this regard. Due to the reason that the Honourable Apex Court in a case between “ Rangappa v. Sri Mohan ”reported in “(2010) 11 SCC 441” reiterated that the accused need not himself come to the witness box to substantiate his defence. But, he can as well elicit from the evidence of the complainant by showing that he has not received the amount in question. In view of the ratios laid down by the Honourable Apex Court and Honourable High Court of A.P., the question is as to be looked into is whether any probable defence was raised by the accused. The degree of proof needed on the part of the accused to rebut the presumption under section 139 of the Negotiable Instruments Act, 1881 is not by proof 7 beyond reasonable doubt and it is only on preponderance of probabilities.

Such a proof can be made not only by positive evidence adduced on the side of the accused, but also by eliciting admissions from the prosecution witnesses and by pointing out the improbabilities of the prosecution case.

Once it is done, the reverse burden is cast on the complainant and the proof required from the complainant becomes one of proof beyond reasonable doubt. The Honourable Apex Court in a case between “Kali

Ram Vs. State of Himachal Pradesh, reported in (1973) 2 SCC 808 laid down that - "23. ......One of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused.

There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the Court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption.

The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal."

It has been held by the Honourable Supreme Court in a case between “Basalingappa v. Mudibasappa”, reported in (2019) 5 SCC 418, that 8 if the evidence on record, thus, is a probable defence on behalf of the accused, it shifted the burden on the complainant to prove his financial capacity and other facts.

(iv) During her cross-examination she testified that her in laws are residents of Santhalakshmi Purum Village of Meliaputti Mandal and she is a resident of Visakhapatnam, they have been residing in Visakhapatnam as her children are studying over there. She also testified that she lend the amount to the accused on different dates i.e., 20.12.2014, 25.02.2014, 01.01.2015 and furthur testified that she is unable to recollect the other dates of lending amount to the accused, her husband was present in all the occassions when the amounts were said to have given to the accused, the transactions took place at Palasa. It is curious that she pleaded ignorance of the place at which the amount was said to have given to the accused at Palasa and also the place at which Ext.P.1 was given by the accused to her and furthur testified that she was unable to recollect the time of giving money by her to the accused and giving of

Ext.P.1 by the accused. She furthur deposed that while she was starting at Visakhapatnam to come to Palasa in order to lend money she used to call Janardhan and Suresh who were said to have present as a witnesses at the time of alleged transactions. As could be seen from the above referred testimony the amounts were said to have lent to the accused for five times and that in all the occassions she came to Palasa from

Visakhapatnam by giving information to the same persons to act as a witnesses which is far away from the reality. It cannot be believed that the complainant being a woman all the way came to Palasa from

Viskhapatnam in all the occassions covered under this case and other calerdar cases vide C.C. Nos. 160/2017, 164/2017, 165/2017 and 166/2017 pending on the file of this court in order to lend money to the accused. Another aspect which creats dent which can impeach her credit or discard her testimony or to doubt her veracity in her testimony is that pleading of the ignorance of the place at which the amount was said to have given to the accused and Ext.P.1 was received from the accused. It cannot be expected from an ordinary prudent person to plead ignorance about the place at which the transaction in dispute was taken place, her testimony that she was unable to recollect the time and place at which 9

Ext.P.1 was delivered by the accused manifests that she is suppressing the material facts. She is also silent as to her source of securing such a huge amount. She has nowhere specified as to what was her source to secure such a huge amount specified in the complaint in this case and

C.C. Nos. 160/2017, 164/2017, 165/2017 and 166/2017. Another aspect which cuts the root of the prosecution is that she fairly admitted that which cheque was issued in respect of which transaction, hence, Ext.P.1 cannot be connected to the transaction covered under this case. All the above pointed out elicitations raises doubt on the very Ex.P-1 and such circumstance raises serious doubt on the transaction as claimed by the complainant. No foundation was laid to give credence to the said version.

She did not even choose to examine the said Janardhan and Suresh to substantiate her version for some extent, as it is the contention of the accused that due to the disputes in between himself and her husband in a real estate business this complaint and other complaints were got filed, she could have examined her husband to falsify the version of the accused. Withholding of the material witnesses raises an adverse inference against her. Though the financial capacity of the complainant is not an essential condition as envisaged under section 138 of Negotiable

Instruments Act in view of the factual matrix of the case when such a clear stand has been taken by the accused, the complainant ought to have adduced some evidence touching the aspect of her financial capacity to lend such a huge amount to the accused. Not adducing the evidence touching the financial capacity of the complainant to secure the money in the present set of facts corrode the quality of the prosecution version and lends support to the version of the defence. The Honourable Apex Court in a case between “ K. Subramani Vs., Damodara Naidu” [Arising out of

SLP (Crl.) No.6197 of 2014 decided on 13-11-2014, held that:-.

“on a consideration of entire oral and documentary evidence the trial court came to the conclusion that the complainant had no source of income to lend a sum of Rs. 14 lakhs to the accused and he failed to prove that there is legally recoverable debt payable by the accused to him. In our view the said conclusion of the trial court has been arrived at on proper appreciation of material evidence on record” 10

In a case between “K. Prakashan Vs. P.K. Surenderan, reported in 2007(4) RCR (Criminal) 588 (SC) “it was held by the Hon'ble Supreme Court that the presumption under Section 139 of the NI Act can be raised only when the complainant is able to show that he had requisite funds for advancing loan to the accused”

The learned defence counsel relied upon a decision in a case between “N.Narasamma Vs. Chinna Mukkiranna and another reported in 2017(2) ALD (Crl) 115 wherein at para 12 it was held that “as per section 138 of the NI Act there must be a money transaction between the accused and the complainant and the alleged cheques should be concerned to discharge the debts or other liability. In the case in hand, there is no piece of paper that the complainant advanced the amount to the accused and the accused indebted to complainant for the alleged amount.

According to the complaint allegations, the accused executed promissory note on 18.09.2009 for Rs.1,50,000/- @ 24% interest per annum. But, the appellant/complainant did not file the said promissory note to prove her contention. Mere issuance of cheque is not an offence u/sec. 138 of NI Act”.

The decision relied upon by the learned defence counsel squarely applies to the case in hand, even in the instant case also the promissory note alleged to have executed by the accused is not filed.

The learned counsel for the complainant relied upon a decision of our Hon'ble Apex Court in a case between “Uttam Ram Vs. Devinder

Singh Hudan” in Criminal Appeal No.1545/2019 dated 17.10.2019 wherein it was held that “A meaningful reading of the provisions of the Negotiable

Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any 11 person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of

Sections 138 would be attracted.

With due respects the decision relied upon by the learned counsel

for the complainant would not help to the complainant, since the facts in

the above case and facts in the instant case are not similar and the elicitations made out during the cross examination of P.W.1 are not mere discrepancies and the above pointed out elicitations could rebut the statutory presumption.

He also relied upon a decision in a case between “K.N. Beena

Vs.Muniyappan and another reported in 2001 CRI. L.J. 4745. where in

Hon'ble Supreme Court reaffirmed that the court has to presume that the

cheque had been issued for a debt or liability and burden of proving that cheque had not been issued for a debt or liability is on the accused.

In view of the above discussion, all the above factors, cumulatively seen, would go to show that the accused has successfully probablised his defence. Hence, one can come to the only conclusion that the accused is able to establish the improbabilities of the case of the complainant and also prove his defence by preponderance of probabilities and that the complainant has not discharged her reverse burden of proving that she had financial capacity to lend such a huge amount and she lent the amount to the accused, hence, the cheque was issued in her favour for a legally recoverable debt or other liability. This point is answered accordingly.

11. Point No.(ii):-

In view of the conclusion arrived by this court under Point No (i), as various imponderables and improbabilities found in the case of the complainant, it can be held that the prosecution is unable to establish the guilt of the accused for the offence punishable under section 138 r/w 142 of Negotiable Instruments Act beyond reasonable doubt. This point is answered accordingly.

In the result, the accused is found not guilty for the offence punishable under section 138 of Negotiable Instruments Act and he is 12 acquitted under section 255(1) Code of Criminal Procedure. The accused executed a bond for Rs.5,000/-in order to ensure his presence before the appellate court, if any appeal is preferred against him in compliance of section 437(A) of Criminal Procedure Code.

Typed in my Laptop and copied it to pen drive, prints are taken by Stenographer Grade III, corrected and pronounced by me in open court, this the 19th day of May, 2020.

Judicial Magistrate of I Class,

Palasa

Appendix Of Evidence

Witnesses Examined

For Prosecution: For Defence: Nil

P.W.1:Smt. Kaviti Bharathi P.W.2: Sri.K.V.S.H. Seshagiri Rao, Branch Manager, State Bank of India, Palasa Branch

Documents Marked

For Prosecution: For Defence:Nil

Ex.P-1: Dishonoured cheque bearing No.238670, dt 06.09.2016 drawn on in Bank of India, Bhuwaneswar Branch for Rs.1,00,000/-; Ex.P-2: Return memo dt. 14.09.2016 issued by Bank of India; Ex.P-3: The office copy of legal notice dt. 24.09.2016 got issued to the accused. Ex.P.4: Relevant postal acknowledgment dt. 27.09.2016;

Material Objects

For Prosecution: For Defence:

Nil

Judl Magistrate of I Class Palasa.

13

FORM NO.71 Calendar & Judgment (for use in cases where there is one accused person)

DISTRICT OF SRIKAKULAM

IN THE COURT OF THE JUDICIAL MAGISTRATE OF 1ST CLASS, PALASA

DATE OF OFFENCE:13.10.2016REPORT OR 19.10.2016 COMPLAINT:

APPREHENSION OF---RELEASE ON BAIL---

ACCUSED:ACCUSED:

REMANDOF---

ACCUSED: COMMENCEMENT OF04.05.2018CLOSE OF TRIAL:07/02/20 TRIAL: SENTENCEOR19.05.2020 ORDER: EXPLANATIONOFDue to delay in commending trail and non production of prosecution DELAYANDwitnesses. REMARKS: JUDGMENT IN C.C:163 of 2017 COMPLAINANT: Kaviti Bharathi, W/o. Thavitayya, aged about 35 years, resident of Santhalaxmipuram village, Meliyaputti Mandal, Srikakulam District, A.P.

NAME,AGE,Srinivas Das, S/o. Vaidyanadh Das, aged about 40 years, Attender, FATHER’SNAME,Railway Hospital, Railway Colony, Kasibugga, Srikakualm District, A.P.

RELIGION, CALLING,

RESIDENCEAND

TALUKOFTHE

ACCUSED: OFFENCE:under sections 138 of NI Act: Sec.138 of Negotiable Instrument Act: Dishonour of cheque for in sufficiently etc., of funds in the account. FINDING:Found not guilty SENTENCE: In the result, the accused is found not guilty for the offence punishable under section 138 of Negotiable Instruments Act and he is acquitted under section 255(1) Code of Criminal Procedure. The accused executed a bond for Rs.5,000/-in order to ensure his presence before the appellate court, if any appeal is preferred against him in compliance of section 437(A) of Criminal Procedure Code. DATE OF RECEIPT19.05.2020

FROMTHE

MAGISTRATE:

JUDL. MAGISTRATE OF 1ST CLASS PALASA.

To The Hon’ble 1 st Addl. District Judge, Srikakulam

Calendar Case No.163/2017 Date of Judgment:19.05.2020 Date of Dispatch of Calendar: Date of Receipt: Remarks of 1st ADJ, Srikakulam:

14

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS : PALASA

Present: Smt. K.Krishna Satya Latha, Judl Magistrate of I Class, Palasa

Tuesday, this the 19th day of May, 2020.

C.C.No.160 of 2017

Between:

Kaviti Bharathi, W/o. Thavitayya, aged about 35 years, resident of Santhalaxmipuram village, Meliyaputti Mandal, Srikakulam District, A.P..

... Complainant

And

Srinivas Das, S/o. Vaidyanadh Das, aged about 40 years, Attender, Railway Hospital, Railway Colony, Kasibugga, Srikakualm District, A.P.

... Accused

This case came up on this day for final hearing before me in the presence of Sri P. G. Raja Ratnam, learned Advocatefor the complainant and of Sri.P. Lakshminarayana, learned Advocate for the accused, upon hearing of both sides through video conference and upon perusal of the material on record and having stood over for consideration, this court delivered the following:

J U D G M E N T

1) This is the complaint filed under section 190 read with 200 of Code of Criminal Procedure for the offence punishable under section 138 read with 142 of Negotiable Instrument Act.

2) The essence of the complaint is that:

i)the accused borrowed an amount of Rs.,1,00,000/- from the complainant on 20.12.2014 by executing a demand promissory note in her favour, for his necessities with a stipulation to repay the same with interest @ 12% per annum on demand either to the complainant or her order. On demand the accused issued a cheque bearing No. 238670

dated 27.07.2016 for Rs.,1,00,000/- drawn on Bank of India,

Bhubhaneswar Branch, in favour of the complainant towards part payment. The complainant presented the said cheque in her banker i.e.,

State Bank of India, Palasa Branch for collection on 13.09.2016 and the same was dishonoured and returned on 14-09-2016 with an endorsement “Funds Insufficient”. As such, the complainant got issued the legal notice to the accused on 24-09-2016 requiring to pay the amount covered under 2 the cheque, having received the same he neither gave reply nor paid the cheque amount. Hence, the complainant filed this complaint.

3.Cognizance is taken under section 190(1)(a) of Code of Criminal

Procedure for the offence punishable under Section 138 r/w 142 of

Negotiable instrument Act.

4.On appearance of the accused, copies of documents were furnished to him as contemplated under rule 8 of Criminal Rules of

Practice.

5.The accused was examined under section 251 of Code of Criminal

Procedure. The sum and substance of the accusation made against him was read over and explained to him in Telugu, having understood the same, he denied the offence and claimed to be tried.

6.In order to establish the case of the complainant, the complainant herself is examined as P.W.1 and got summoned the Branch Manager,

State Bank of India, Palasa branch by name Sri K. V. S. H. Seshagiri Rao as P.W.2 and exhibited Exts. P.1 to Exts. P.4. In substantiation of the contention of the accused no oral or documentary evidence is adduced on behalf of the accused.

7.After completion of prosecution side evidence, the accused was examined under section 313 of Code of Criminal Procedure. All the incriminating material available in the evidence of prosecution witnesses is explained to him in Telugu, having understood the same he denied the offence and reported no defence evidence. The statement of the accused is that he never borrowed any amount from the complainant, the husband of the complainant, himself and One Jayashankar Das used to do real estate business jointly, they purchased a site at Gotlam Village in

Vizianagaram District, he gave his cheque book to them in the said transaction, thereafter the disputes arose among them, due to which cheques signed by him were fabricated and presented for collection and got filed this complaint through the complainant.

8. Heard both sides. The learned counsel for the complainant reiterated the contents of the complaint. The learned counsel for the accused contended that the complainant failed to establish the essential ingredients to fasten penal liability upon the accused. The complainant has no financial capacity to lend such a huge amount and she filed four 3 other complaints against him by fabricating the cheques. Since, the complainant failed to establish the essential requirements the accused is entitled to be acquitted.

9. In view of the rival contentions, now the points that require determination are:- (I)Whether the accused had borrowed a sum of Rs., 1,00,000/- from the complainant on 20.12.2014 and issued Ext.P.1 towards partial discharge of legally enforceable debt?

(ii) Whether the prosecution is able to establish the guilt of the accused for the offence punishable under section 138 read with 142 of Negotiable Instruments Act beyond reasonable doubt?

10. Point No.(i):-

(i)The simple case of the complainant as canvassed in the complaint, examination in chief and also arguments advanced on behalf of the complainant is that the accused borrowed a sum of Rs., 1,00,000/- from her on 20.12.2014 for his necessities by executing the demand promissory note in her favour agreeing to repay the same together with interest @ 12 % per annum payable either to the complainant or her order thereon. Subsequently, on her demands the accused issued Ext.P.1 in her favour, drawn on Bank of India, Bhabaneswar branch for Rs.

1,00,000/- towards the partial discharge of the said debt due under the said promissory note, she presented the same for collection in her banker viz., State Bank of India, Palasa Branch, but, the same was dishonoured with an endorsement “funds insufficient” under Ext.P.2. As such, on receipt of the same she got issued Ext.P.3. During the cross examination it was suggested to her that the signature appearing on Ext.P.1 and

Ext.P.4 are not similar and the same was denied by her. But, the accused did not deny the receipt of Ext.P.3 during his examination under section 313 of Code of Criminal Procedure. Thus, from the statement of accused, the factum of service of legal notice stood established. Furthermore, it is clear from the record that the legal notice was sent to the accused at the same very address upon which he was served with the summons of the complaint. Thus, it is clear that Ext.P.3 the legal notice was sent at the 4 correct address of the accused and therefore in view of the judgment of

Hon'ble Supreme Court reported as C.C. Alavi Hazi vs. Palapetti

Muhammed and Anrreported in 2007 (6) SCC 555, the notice is deemed to have been duly served upon the accused. It is further clear from the record that accused did not pay the cheque amount either within 15 days of the service of the legal notice or thereafter. It is also not disputed that the impugned cheque was issued by accused, as he has not denied his signature on the cheque. Thus, it is clear from the record that all necessary requirements to constitute the offence under section 138

N egotiable I nstruments Act, have been fulfilled except that whether on the date of presentation of Ext.P.1 cheque by the complainant, the Ext.P.1 cheque was against due debt or was without consideration as claimed by the accused. This point will be discussed in the later part of the judgment and before making further discussions on the factual aspects of the case, it is deemed necessary to firstly discuss the relevant provisions of

Negotiable Instruments Act and the legal position which is required to be taken into consideration for appropriate disposal of the complaint under section 138 of N egotiable I nstruments Act.

(ii)The claim based under the provisions of Negotiable Instruments Act is an exception to the general rule of law that burden of proof lies on the prosecution. There are two specific provisions in Negotiable Instruments

Act i.e. section 118 (a) and 139 which contemplates that a presumption is attached in regard to each and every negotiable instrument that the same was drawn and issued against due discharge of the liability and thus, whenever any claim is made on the basis of a negotiable instrument, the presumption has to be drawn in favour of the holder of the cheque (drawee) and the law has put the burden to rebut the presumption on the accused that the cheque was not issued by him against discharge of a debt or a liability. In case, the accused is not able to rebut the presumption and fails to prove his defence, the presumption becomes absolute and it has to be assumed that the cheque was issued by the accused in discharge of debt or liability and consequently, accused has to be assumed guilty of the offence. The relevant provisions of section 118

(a) and section 139 of Negotiable Instruments Act reads as under:

5

Section 118 Presumptions to negotiable instruments: Until the contrary is proved, the following presumption shall be made:

(a) of consideration that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated, or transferred for consideration.

Section 139Punishment in favour of holder:

It shall be presumed, unless the contrary is provided, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.

(iii)It has been held by Hon'ble Supreme Court in the case between Hiten P. Dalal v. Bratindranath Banerjeereported in 2001 (6) SCC 16 that the presumption mentioned in the section 139 of NI Act, is a presumption of law and not the presumption of fact and thus, this presumption has to be drawn in favour of the drawee and burden to rebut the presumption with the probable defence is on the accused.

The relevant para of the aforesaid case law reads as under:

21. In other words, providedthe facts required to form the basis of a presumption of law exist, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists" [Section 3 : Evidence Act]. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man.

It has been held by the Hon'ble Supreme Court in the case of “ Rangappa v. Mohanreported in 2010 (11) SCC 441that presumption of section 139 of Negotiable Instruments Act also includes the existence of legal enforceable debt.

6 ….. Thus, in view of the law laid down by the Hon'ble Supreme

Court in the aforesaid cases, the presumption as contemplated under section 139 Negotiable Instruments Act has to be drawn in favour of the drawee that the cheque in question was issued in discharge of legally enforceable liability. Thus, in the present case also complainant was not required to prove that the Ext.P.1 subject cheque was issued by the accused towards the partial discharge of the debt due by him and initially, the claim of the complainant is to be assumed to be correct by drawing the presumption of section 139 of Negotiable Instruments Act and burden to rebut the presumption with his probable defence was on the accused.

(iii) The ultimate defence of the accused is total denial of transaction by and in between the complainant and himself and that the complainant fabricated the blank cheques by taking an advantage of the cheque book given by him to her husband and One Jayashankar in a real estate business transaction. In fact she had no financial capacity to lend such a huge amount and there is no legally enforceable debt due. The contention of the learned counsel for the complainant is that to rebut the legal presumption in favour of the complainant, at least the accused did not adduce any evidence, as such, an adverse inference can be drawn against him apart from the legal presumption in favour of the complainant as envisaged under section 139 of Negotiable Instruments Act. This court do not find any force in the arguments advanced by the learned counsel in this regard. Due to the reason that the Honourable Apex Court in a case between “ Rangappa v. Sri Mohan ”reported in “(2010) 11 SCC 441” reiterated that the accused need not himself come to the witness box to substantiate his defence. But, he can as well elicit from the evidence of the complainant by showing that he has not received the amount in question. In view of the ratios laid down by the Honourable Apex Court and Honourable High Court of A.P., the question is as to be looked into is whether any probable defence was raised by the accused. The degree of proof needed on the part of the accused to rebut the presumption under section 139 of the Negotiable Instruments Act, 1881 is not by proof beyond reasonable doubt and it is only on preponderance of probabilities.

Such a proof can be made not only by positive evidence adduced on the 7 side of the accused, but also by eliciting admissions from the prosecution witnesses and by pointing out the improbabilities of the prosecution case.

Once it is done, the reverse burden is cast on the complainant and the proof required from the complainant becomes one of proof beyond reasonable doubt. The Honourable Apex Court in a case between “Kali

Ram Vs. State of Himachal Pradesh, reported in (1973) 2 SCC 808 laid down that - "23. ......One of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused.

There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the Court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption.

The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal."

It has been held by the Honourable Supreme Court in a case between “Basalingappa v. Mudibasappa”, reported in (2019) 5 SCC 418, that if the evidence on record, thus, is a probable defence on behalf of the accused, it shifted the burden on the complainant to prove his financial capacity and other facts.

8

(iv) During her cross-examination she testified that her in laws are residents of Santhalakshmi Purum Village of Meliaputti Mandal and she is a resident of Visakhapatnam, they have been residing in Visakhapatnam as her children are studying over there. She also testified that she lend the amount to the accused on different dates i.e., 20.12.2014, 25.02.2014, 01.01.2015 and furthur testified that she is unable to recollect the other dates of lending amount to the accused, her husband was present in all the occasions when the amounts were said to have given to the accused, the transactions took place at Palasa. It is curious that she pleaded ignorance of the place at which the amount was said to have given to the accused at Palasa and also the place at which Ext.P.1 was given by the accused to her and furthur testified that she was unable to recollect the time of giving money by her to the accused and giving of

Ext.P.1 by the accused. She furthur deposed that while she was starting at Visakhapatnam to come to Palasa in order to lend money she used to call Janardhan and Suresh who were said to have present as a witnesses at the time of alleged transactions. As could be seen from the above referred testimony the amounts were said to have lent to the accused for five times on different dates and that in all the occasions she came to

Palasa from Visakhapatnam by giving information to the same persons to act as a witnesses which is far away from the reality. It cannot be believed that the complainant being a woman all the way came to Palasa from

Viskhapatnam in all the occasions covered under this case and other calendar cases vide C.C. Nos. 163/2017, 164/2017, 165/2017 and 166/2017 pending on the file of this court in order to lend money to the accused. Another aspect which creates dent which can impeach her credit or discard her testimony or to doubt her veracity is that pleading of the ignorance of the place at which the amount was said to have given to the accused and Ext.P.1 was received from the accused. It cannot be expected from an ordinary prudent person to plead ignorance about the place at which the transaction in dispute was taken place, her testimony that she was unable to recollect the time and place at which Ext.P.1 was delivered by the accused manifests that she is suppressing the material facts. She is also silent as to her source of securing such a huge amount.

She has nowhere specified as to what was her source to secure such a 9 huge amount specified in the complaint in this case and C.C. Nos.

163/2017, 164/2017, 165/2017 and 166/2017. Another aspect which cuts the root of the prosecution is that she fairly admitted that which cheque was issued in respect of which transaction, hence, Ext.P.1 cannot be connected to the transaction covered under this case. All the above pointed out elicitations raises doubt on the very Ex.P-1 and such circumstance raises serious doubt on the transaction as claimed by the complainant. No foundation was laid to give credence to the said version.

She did not even choose to examine the said Janardhan and Suresh to substantiate her version for some extent, as it is the contention of the accused that due to the disputes in between himself and her husband in a real estate business this complaint and other complaints were got filed, she could have examined her husband to falsify the version of the accused. Withholding of the material witnesses raises an adverse inference against her. Though the financial capacity of the complainant is not an essential condition as envisaged under section 138 of Negotiable

Instruments Act in view of the factual matrix of the case when such a clear stand has been taken by the accused, the complainant ought to have adduced some evidence touching the aspect of her financial capacity to lend such a huge amount to the accused. Not adducing the evidence touching the financial capacity of the complainant to secure the money in the present set of facts corrode the quality of the prosecution version and lends support to the version of the defence. The Honourable Apex Court in a case between “ K. Subramani Vs., Damodara Naidu” [Arising out of

SLP (Crl.) No.6197 of 2014 decided on 13-11-2014, held that:-.

“on a consideration of entire oral and documentary evidence the trial court came to the conclusion that the complainant had no source of income to lend a sum of Rs. 14 lakhs to the accused and he failed to prove that there is legally recoverable debt payable by the accused to him. In our view the said conclusion of the trial court has been arrived at on proper appreciation of material evidence on record” 10

In a case between “K. Prakashan Vs. P.K. Surenderan, reported in 2007(4) RCR (Criminal) 588 (SC) “it was held by the Hon'ble Supreme Court that the presumption under Section 139 of the NI Act can be raised only when the complainant is able to show that he had requisite funds for advancing loan to the accused”

The learned defence counsel relied upon a decision in a case between “N.Narasamma Vs. Chinna Mukkiranna and another reported in 2017(2) ALD (Crl) 115 wherein at para 12 it was held that “as per section 138 of the NI Act there must be a money transaction between the accused and the complainant and the alleged cheques should be concerned to discharge the debts or other liability. In the case in hand, there is no piece of paper that the complainant advanced the amount to the accused and the accused indebted to complainant for the alleged amount. According to the complaint allegations, the accused executed promissory note on 18.09.2009 for

Rs.1,50,000/- @ 24% interest per annum. But, the appellant/complainant did not file the said promissory note to prove her contention. Mere issuance of cheque is not an offence u/sec. 138 of NI Act”.

The decision relied upon by the learned defence counsel squarely applies to the case in hand, even in the instant case also the promissory note alleged to have executed by the accused is not filed.

The learned counsel for the complainant relied upon a decision of our Hon'ble Apex Court in a case between “Uttam Ram Vs. Devinder

Singh Hudan” in Criminal Appeal No.1545/2019 dated 17.10.2019 wherein it was held that “A meaningful reading of the provisions of the Negotiable

Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is 11 immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of

Sections 138 would be attracted.

With due respects the decision relied upon by the learned counsel

for the complainant would not help to the complainant, since the facts in

the above case and facts in the instant case are not similar and the elicitations made out during the cross examination of P.W.1 are not mere discrepancies and the above pointed out elicitations could rebut the statutory presumption.

He also relied upon a decision in a case between “K.N. Beena

Vs.Muniyappan and another reported in 2001 CRI. L.J. 4745. where in

Hon'ble Supreme Court reaffirmed that the court has to presume that the

cheque had been issued for a debt or liability and burden of proving that cheque had not been issued for a debt or liability is on the accused.

In view of the above discussion, all the above factors, cumulatively seen, would go to show that the accused has successfully probablised his defence. Hence, one can come to the only conclusion that the accused is able to establish the improbabilities of the case of the complainant and also prove his defence by preponderance of probabilities and that the complainant has not discharged her reverse burden of proving that she had financial capacity to lend such a huge amount and she lent the amount to the accused, hence, the cheque was issued in her favour for a legally recoverable debt or other liability. This point is answered accordingly.

11. Point No.(ii):-

In view of the conclusion arrived by this court under Point No (i), as various imponderables and improbabilities found in the case of the complainant, it can be held that the prosecution is unable to establish the guilt of the accused for the offence punishable under section 138 r/w 142 of Negotiable Instruments Act beyond reasonable doubt. This point is answered accordingly.

12

In the result, the accused is found not guilty for the offence punishable under section 138 of Negotiable Instruments Act and he is acquitted under section 255(1) Code of Criminal Procedure. The accused executed a bond for Rs.5,000/-in order to ensure his presence before the appellate court, if any appeal is preferred against him in compliance of section 437(A) of Criminal Procedure Code.

Typed in my Laptop and copied it to pen drive, prints are taken by Stenographer Grade III, corrected and pronounced by me in open court, this the 19th day of May, 2020.

Judicial Magistrate of I Class,

Palasa

Appendix Of Evidence

Witnesses Examined

For Prosecution: For Defence: Nil

P.W.1:Smt. Kaviti Bharathi P.W.2: Sri.K.V.S.H. Seshagiri Rao, Branch Manager, State Bank of India, Palasa Branch

Documents Marked

For Prosecution: For Defence:Nil

Ex.P-1: Dishonoured cheque bearing No.238670, dt 27.07.2016 drawn on Bank of India, Bhuwaneswar Branch for Rs.1,00,000/-; Ex.P-2: Return memo dt. 14.09.2016 issued by Bank of India; Ex.P-3: The office copy of legal notice dt. 24.09.2016 got issued to the accused. Ex.P.4: Relevant postal acknowledgment dt. 27.09.2016;

Material Objects

For Prosecution: For Defence:

Nil

Judl Magistrate of I Class Palasa.

13

FORM NO.71 Calendar & Judgment (for use in cases where there is one accused person)

DISTRICT OF SRIKAKULAM

IN THE COURT OF THE JUDICIAL MAGISTRATE OF 1ST CLASS, PALASA

DATE OF OFFENCE:13.10.2016REPORT OR 19.10.2016 COMPLAINT:

APPREHENSION OF---RELEASE ON BAIL---

ACCUSED:ACCUSED:

REMANDOF---

ACCUSED: COMMENCEMENT OF04.05.2018CLOSE OF TRIAL:07/02/20 TRIAL: SENTENCEOR20.03.2020 ORDER: EXPLANATIONOF Due to delay in commencing trail production of prosecution DELAYANDwitnesses. REMARKS: JUDGMENT IN C.C:160 of 2017 COMPLAINANT: Kaviti Bharathi, W/o. Thavitayya, aged about 35 years, resident of Santhalaxmipuram village, Meliyaputti Mandal, Srikakulam District, A.P.

NAME,AGE,Srinivas Das, S/o. Vaidyanadh Das, aged about 40 years, Attender, FATHER’SNAME,Railway Hospital, Railway Colony, Kasibugga, Srikakualm District, A.P.

RELIGION, CALLING,

RESIDENCEAND

TALUKOFTHE

ACCUSED: OFFENCE:under sections 138 of NI Act: Sec.138 of Negotiable Instrument Act: Dishonour of cheque for in sufficiently etc., of funds in the account. FINDING:Found not guilty SENTENCE: In the result, the accused is found not guilty for the offence punishable under section 138 of Negotiable Instruments Act and he is acquitted under section 255(1) Code of Criminal Procedure. The accused executed a bond for Rs.5,000/-in order to ensure his presence before the appellate court, if any appeal is preferred against him in compliance of section 437(A) of Criminal Procedure Code. DATE OF RECEIPT20.03.2020

FROMTHE

MAGISTRATE:

JUDL. MAGISTRATE OF 1ST CLASS PALASA.

To The Hon’ble 1 st Addl. District Judge, Srikakulam

Calendar Case No.160/2017 Date of Judgment:20.03.2020 Date of Dispatch of Calendar: Date of Receipt: Remarks of 1st ADJ, Srikakulam:

14

1

CC.477 of 2013, Dt. 16/08/2016

BEFORE THE COURT OF JUDICIAL MAGISTRATE OF 1ST CLASS, RAJAM

Present: Smt. K. Krishna Satyalatha, Judl.Magistrate of 1st Class, Rajam

Tuesday, the 16th day of August, 2016

Calendar Case No.477 of 2013 Between:

The State represented by the Sub-Inspector of Police, R.A.Valasa Police Station. … Complainant. And:

Tegala Durga Rao, S/o. late Surayya, aged about 60 years, caste by S.C., R/o. Amadalavalasa Colony, R.A. Valasa Mandal. … Accused

This case coming on 16/08/2016 for final hearing before me in the presence of learned Assistant Public Prosecutor for the State and Sri. M. Damodara Rao Advocate, for the accused and upon hearing both sides and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1. The then Sub Inspector of Police, R.A. Valasa Police Station laid charge sheet against the accused for the offence punishable u/sec. 324 of Indian Penal Code in

Cr.No. 120/2013.

2. The brief averments of the charge sheet are that on 01.11.2013 at about 8.00 pm., while the defacto complainant by name Yarrapaturuni Murali was talking with his brother and his friend viz., Yerrapathruni Chitti Babu, Kallepalli Naveen at

Ungaradametta auto stand, the accused went there and beat him on his left ear from his behind with Kathuva Boriga, due to which he sustained injuries on his left ear and left hand. Pogiri Sri Ramulu and Yarrapaturuni Chittibabu took Yerrapathruni Murali to their house. As per the advice of Yerrapathruni Nagam Naidu the report was lodged

before the police.

3. Based on the same Sri. V. Appala Naidu the then Head Constable of R.A. Valasa

Police Station, registered a case and investigated into. After completion of the investigation charge sheet was laid against the accused by Sri. M. Chandra Mouli, the then Sub Inspector of R.A. Valasa Police Station. Hence, this case.

4.The cognizance is taken u/Sec.190(1) (b) of Code of Criminal Procedure for the offence punishable under Section 324 of Indian Penal Code.

2

CC.477 of 2013, Dt. 16/08/2016

5. On appearance of the accused, copies of documents were furnished to him as contemplated u/Sec.207 of Code of Criminal Procedure and rule 8 of Criminal Rules of

Practice.

6. Heard. The accused was examined under section 239 of Code of Criminal

Procedure. Charge under section 324 of Indian Penal Code was framed against the accused, read over and explained to him in Telugu, having understood the same, he denied the offence and claimed to be tried.

7. During the course of trial, in order to substantiate the case of the prosecution, it got examined P.Ws.1 to P.Ws.11 and exhibited Exts.P1 to Exts.P.7 and M.O.1.

8. After completion of prosecution side evidence, the accused was examined under section 313 of Code of Criminal Procedure. All the incriminating material available in the evidence of prosecution witnesses is explained to him in Telugu, having understood the same he denied the offence and reported no defence evidence.

9. Heard both sides. The specific contention of the learned Counsel for the accused is that this case is foisted against the accused, as his wife lodged report against P.W.1,

P.W.3 and their another brother for the offece punishable under the SC and the ST (Prevention of Atrocities Act). There is a political rivalry in between the accused and

P.Ws.1 to P.Ws.5, apart from the disputes relating to the immovable property. Hence, the testimonies of P.Ws.1 to P.Ws.5 cannot be relied upon to convict the accused for the offence charged.

10. In view of the rival contentions, now the point that requires determination is:-

(i)Whether the accused voluntarily caused hurt to P.W.1 with M.O.1?

11. POINT:- (I) In order to determine the culpability of the accused, the evidence available

before this court is the testimonies of P.Ws.1 to P.Ws.11. P.W.1 is the defacto

complainant and said to be the victim in the hands of the accused. P.Ws.2, 4, 5, and

P.Ws.9 are said to be the eye witnesses to the incident. P.W.3 is the brother of P.W.1 and said to be one of the eye witness to the incident. P.W.6 and P.W.8 are said to be the mediators in whose presence Ext.P.2 scene observation report was said to have drawn, P.W.7 is the doctor who treated P.W.1 and issued Ext.P.3, P.W.10 is the investigation officer in this case, P.W.11 is another investigation officer who verified the investigation done by P.W.10 and laid charge sheet against the accused. The testimony of P.W.11 is only formal in nature.

3

CC.477 of 2013, Dt. 16/08/2016

(ii) P.W.1 testified on 01/11/2013 at about 08.00 pm., while he was at Auto stand, situated in Ungaradametta along with P.W.3 and P.W.9, the accused went there and beat him on his left ear with M.O.1. He warded the blow, as such, he sustained injury on his left fore arm also. Immediately, he raised alarms, on hearing the same, P.W.2 and P.W.3 rushed there and taken him to their our house. There were previous disputes in between him and the accused. He lodged Ext.P.1 before the police. According to

P.W.2 and P.W.3 the incident has taken place at the shop of Bangaru Raju in

Ungaradametta. Whereas, P.W.4 testified that the incident has taken place in front of his shop. As could be seen from the Ext.P.7, the scene of offence was shown opposite to the shop of Bhogi Bangaru Raju and the shops of P.W.4 and P.W.5 were not reflected in the Ext.P.7. But, neither the said Bhogi Bangaru Raju nor the inmates of his house were examined. There is no single whisper in the testimony of P.W.1 that the incident has taken place either at the shop of Bangaru Raju or in front of the shop of P.W.4. The above uncorroborated testimonies raises a doubt as to the the basic theory of the prosecution, in view of the admitted rivalry in between P.W.1, P.W.3 ,

L.W.5/ Yarrapatruni Nagam Naidu and accused.

(iii) Apart from that the ignorance pleaded by the P.W.1 as to launching prosecution against him and his brothers by the wife of accused for the offence punishable under

The SC and The ST (POA) Act, raises a doubt about his credibility in revealing the truth.

During the cross examination, he admitted that himself and the accused belong to two political rival groups. Though P.W.2 claimed as eye witness, P.W.1 testified that P.W.2 came to the scene of offence upon hearing his alarms. During the cross examination, he admitted that himself and the P.W.1 belong to same caste. As such, it is not prudent to attach much weight to the testimony of the P.W.2. P.W.3 who is the brother of P.W.1 testified about the incident in the same lines as deposed by P.W.1.During the cross examination, it is elicited that the wife of the accused lodged report against him, P.W.1 and their another brother i.e,L.W.5/Yarrapatruni Nagam Naidu stating that they abused her by touching their caste. He also admitted that themselves and the accused belong to two rival groups. In view of the above elicitations, it is not prudent to rely upon his testimony without looking for independant corroborative evidence. Even, the self contradictory testimony of the P.W.1 about the presence of P.W.3 at the time of alleged assault raises a doubt. He testified that the accused beat him, while he was talking with

P.W.3 and P.W.9. Whereas, he deposed in contra that on hearing his alarms there went. As such, the presence of P.W.3 at the time of alleged incident is doubtful. Apart from that P.W.3 testified that Ext.P.1 was lodged at the advise of L.W.5/ Yarrapatruni

Nagam Naidu. It is evident from the above testimony that Ext.P.1 was lodged after due deliberations, as such, the possibility of suppresing the truth cannot be ruled out. P.W.4 testified that the incident has taken place in front of his shop. But, the same has not find support from the testimonies of P.W.1 and P.W.3. P.W.3 testified that except 4

CC.477 of 2013, Dt. 16/08/2016

P.W.2, no body were there at the scene of offence, at the time of incident, P.W.1 testified that on hearing his alarms P.W.2 and P.W.3 went there. If at all P.W.4 was there at the scene of offence at the time of alleged incidents, they would have certainly testified the same. As per the version of P.W.3 no body were there at the scene of offence at the time of alleged incident, whereas P.W.4 testified that there were 10 to 15 persons at the scene of offence by the time of incident. He also admitted that himself,

P.W.1 and P.W.3 belong to same caste. P.W.5 also testified that he was an eye witness to the incident, but, same has not find support from the testimonies of P.Ws.1 to

P.Ws.3. He admitted during the cross examination that himself, P.Ws.1 to P.Ws.4 belong to same caste. He also testified that there were 10 persons at the scene of offence, by the time of incident. But,no independant witness were examined. In view of the facts and circumstances of the case, there is no hesitation to hold that non examination of independant witnesses is fatal to the case of the prosecution and testimonies of PWs 1 to 5 cannot be a sole basis to connect the accused.

(iv) Another aspect which casts cloud upon the case of the prosecution is that, as per the basic theory of the prosecution, P.W.10 seized M.O.1 from the scene of offence under the cover of Ext.P.2 in the presence of P.W.6 and P.W.8. Whereas the same has not find support from the testimonies of P.W.6 and P.W.8. P.W.6 categorically testified that nothing was seized from the scene of offence under the cover of Ext.P.2. P.W.8 testified that his signature was obtained on white paper, nothing was seized. Though, the learned Assistant Public Prosecutor was permitted to put the questions which are in the nature of cross examination, nothing worthy is elicited. P.W.10 who is an investigation officer and whose evidence is procedural in nature testified that there were disputes relating to the land in between the accused and P.W.1 and P.W.2, and

P.Ws.1 to P.Ws.7 belong to same caste and they are the major community in

R.A.Valasa as such it cannot be held that PW.6 and PW.8 are won over by defence. On perusal of the evidence available on record, the prosecution is unable to establish the alleged seizure of M.O.1. As such, no amount of weight can be attached to M.O.1 to convict the accused.

(v) In order to substantiate that P.W.1 sustained injuries in the hands of the accused, the prosecution got examined P.W.7 and exhibited Ext.P.3. As per the version of the P.W.1 and P.Ws.3, he sustained injuries on his left ear and left fore arm. But,

Ext.P.3 does not reflect the injury on left fore arm, he has not ruled out the possibility of sustaining the injuries otherwise. As the evidence adduced by the prosecution is falling much short to connect the accused it is not prudent to base conviction on

Ext.P.3.

(vi) Another aspect which strengthens the contention of the defence is that the delay of 2 hours in lodging Ext.P.1. The alleged incident has taken place at about 5

CC.477 of 2013, Dt. 16/08/2016

8.00pm., as per the versions of P.Ws.1 to P.Ws.5 the scene of offence is situated at

Ungaradametta junction, it is situated at a distance of 1/4th km., to police station.

P.Ws.1 and P.W.3 testified that they approached the police at the advise of their brother. In view of the admitted rivalry in between, P.W.1, P.W.3, L.W.5/Yerrapatruni

Naram Naidu, the possibility of suppression of original version cannot be ruled out.

(vii) On careful analysis of the evidence on record, there is no cogent and convincing evidence before this court to come to the conclusion that prosecution is able to establish that the accused voluntarily caused hurt to P.W.1 with M.O.1. Hence, he is entitled to be acquitted. This point is answered accordingly.

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

Section 324 Indian Penal Code, and accordingly he is acquitted under Section 248(1)

Code of Criminal Procedure. M.O.1 which is deposited vide C.P.No.123/2014 shall be destroyed after the expiry of appeal time. The accused executed bonds for an amount of Rs.5,000/- by undertaking to appear before the Appellate Court, if any appeal is preferred against him in complaince with Section 437(A) of Cr.P.C.,

Partly dictated to the personal Assistant, transcribed by her, partly typed in my

Laptop, prints are taken by her, corrected and pronounced by me in open court, this the 16th day of August, 2016.

JUDL. MAGISTRATE OF 1ST CLASS RAJAM Appendix of Evidence Witnesses Examined For Prosecution: PW.1 : Yerrapathruni Murali

PW.2 : Pogiri Sri Ramulu

PW.3 : Y. Chittibabu

PW.4 Rupe Srinivasarao : PW.5 Samanthula Bala Krishna : : PW.6 Kovvada Kiran Kumar

PW.7 Dr. K. Haribabu, Civil Assitant Surgeon, Area Hospital, Rajam : Routh Srinivasa Rao : PW.8 Kallepalli Naveen Kumar

PW.9 A. Appala Naidu, Head Constable of R.A. Valasa Police : : PW.10 Station.

Sri. M. Chandra Mouli, Sub Inspector of Police, Palakonda

PW.11 : Police Station.

For Defence: None 6

CC.477 of 2013, Dt. 16/08/2016

Documents Marked For Prosecution: Ex.P1 : Report dated 01.11.2013

Ex.P2 : Scene observation report 02.11.2013

Ex.P3 : Wound certificate of PW.1 dated 04.11.2013 issued by Dr. K. Ex.P4 Haribabu (PW.7) Ex.P5 Signature of PW.8 on Ext.P2 scene observation report : Ex.P6 Original FIR dated 01.011.2013 Ex.P7 Rough sketch of the scene of offence dated 02.11.2013 :

For defence: Nil Material Objects: M.O.1 Kathuva Boriga

JUDL. MAGISTRATE OF 1ST CLASS RAJAM 7

CC.477 of 2013, Dt. 16/08/2016

FORM NO.71

Calendar & Judgment (for use in cases where there is one accused person)

DISTRICT OF SRIKAKULAM

IN THE COURT OF THE JUDICIAL MAGISTRATE OF 1ST CLASS, RAJAM

DATE OF

OFFENCE: 01/11/2013 REPORT OR 01/11/2013 COMPLAINT: APPREHENSION OF ACCUSED: --- RELEASE ON BAIL: --- COMMENCEMENT OF TRIAL: 01/10/2014 CLOSE OF TRIAL: 12/05/2016 SENTENCE OR ORDER: 16/08/2016

EXPLANATION OF DELAY AND Non production of witness in time by the complainant. REMARKS: JUDGMENT IN C.C: 477 of 2013 Cr.No. 120/2013

COMPLAINANT: The State represented by the Sub-Inspector of Police, R.A.Valasa Police Station.

NAME, AGE, FATHER’S Tegala Durga Rao, S/o. late Surayya, aged about 60 years,

NAME, RELIGION,

caste by S.C., R/o. Amadalavalasa Colony, R.A. Valasa

CALLING, RESIDENCE

Mandal.

AND TALUK OF THE

ACCUSED: OFFENCE: Sec.324 of IPC: Voluntarily causing hurt by dangerous weapons or means punishable u/sec. 324 of Indian Penal Code. FINDING: Found not guilty SENTENCE: In the result, the accused is found not guilty for the offence punishable under Section 324 Indian Penal Code, and accordingly he is acquitted under Section 248(1) Code of Criminal Procedure. M.O.1 which is deposited vide C.P.No.123/2014 shall be destroyed after the expiry of appeal time. The accused executed bonds for an amount of Rs.5,000/- by undertaking to appear before the Appellate Court, if any appeal is preferred against him in complaince with Section 437(A) of Cr.P.C.,

DATE OF RECEIPT FROM THE MAGISTRATE: 16/08/2016

JUDL. MAGISTRATE OF 1ST CLASS RAJAM

To The Hon’ble 1 st Addl. District Judge, Srikakulam

Calendar Case No. 477/2013 Date of Judgment: 16/08/2016 Date of Dispatch of Calendar: Date of Receipt: Remarks of 1st ADJ, Srikakulam:

Copy to the Superintendent of police, Srikakulam 8

CC.477 of 2013, Dt. 16/08/2016

Judgment pronounced (vide separate):

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

Section 324 Indian Penal Code, and 9

CC.477 of 2013, Dt. 16/08/2016

accordingly he is acquitted under

Section 248(1) Code of Criminal

Procedure. M.O.1 which is deposited vide C.P.No.123/2014 shall be destroyed after the expiry of appeal time. The accused executed bonds for an amount of Rs.5,000/- by undertaking to appear before the

Appellate Court, if any appeal is preferred against him in complaince with Section 437(A) of Cr.P.C., , 10

CC.477 of 2013, Dt. 16/08/2016

11

CC.477 of 2013, Dt. 16/08/2016

1

CC.365 of 2015, Dt. 17/08/2016

BEFORE THE COURT OF JUDICIAL MAGISTRATE OF 1ST CLASS, RAJAM

Present: Smt. K. Krishna Satyalatha, Judl.Magistrate of 1st Class, Rajam

Wednesday, the 17th day of August, 2016

Calendar Case No.365 of 2015 Between:

The State represented by the Proh. & Excise Inspector, Proh. & Excise Station, Rajam. … Complainant. And:

Chigulapalli Narasimha Murthy, S/o. Late Suryanarayana, aged about 52 years, Caste of Kalinga, R/o. Appala Agraharam Village, Santhakaviti Mandal, Srikakulam District. … Accused

This case coming on 16/08/2016 for final hearing before me in the presence of learned Assistant Public Prosecutor for the State and Sri. K. Kondala Rao Advocate, for the accused and upon hearing both sides and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1. The then Inspector of Proh. & Excise Station, Rajam laid charge sheet against the accused for the offence punishable u/sec. 34(a) of AP Excise Act.

2. The brief averments of charge sheet are on 13.06.2014 Sri. M. Srinivasa Rao, the then Inspector of Proh. & Excise Station, Rajam. Conducted raids with the assistance of

Sri. G. Govinda Rajulu, the then Head Constable of Proh. & Excise Station, Rajam, Sri.

P. Koorminaikulu, Kum. P. Vanajakshi Constables of Proh. & Excise Station, Rajam. At about 10.30 am., while they were conducting raids at the culvert situated in Siripuram & Santhakaviti road, at a distance of one furlong to Appalaagraharam village, they found the accused who was going towards Applaagraharam village, by carrying one

Urea bag. On seeing the police, the accused perturbed, as such out of suspicion they surrounded him and stopped him. On verification of the bag, which was in possession of the accused they found 18 beer bottles of Kingfisher Strong Premium Beer containing 650ml., each. On enquiry the accused revealed his identity and confessed that he purchased a liquor bottles at Kakarapalli village, to sell them at higher price in his village. As such, Sri. M. Srinivasa Rao seized the liquor bottles under the cover of occurrence report. He is also arrested the accused. Subsequently the accused was brought to the police station along with the property seized. Based on the occurrence report Sri. M. Srinivasa Rao, registered a case and investigated into.

2

CC.365 of 2015, Dt. 17/08/2016

3. During the course of investigation, he sent the sample bottles to the Regional

Proh. & Excise Laboratory, Visakhapatnam for chemical analysis under the cover of letter advice. The analyst, after through analysis opined that sample bottle contained “Beer”. On receipt of the analysis report, he laid charge sheet against the accused.

Hence this case.

4.The cognizance is taken u/Sec.190(1) (b) of Code of Criminal Procedure for the offence punishable under Section 34 (a) of A.P.Excise Act.

5. On appearance of the accused, copies of documents were furnished to him as contemplated u/Sec.207 of Code of Criminal Procedure and rule 8 of Criminal Rules of

Practice.

6. Heard. The accused was examined under section 239 Code of Criminal Procedure.

Charge under section 34 (a) of A.P. Excise Act was framed against the accused, read over and explained to him in Telugu, having understood the same, he denied the offence and claimed to be tried.

7. During the course of trial, in order to substantiate the case of the prosecution, it got examined P.Ws.1 to P.Ws.3 and exhibited Exts.P1 to Exts.P.3 and M.O.1.

8. After completion of prosecution side evidence, the accused was examined under section 313 of Code of Criminal Procedure. All the incriminating material available in the evidence of prosecution witnesses is explained to him in Telugu, having understood the same he denied the offence and reported no defence evidence.

9. Heard both sides.

10. In view of the rival contentions, now the points that require determination are:-

(i) Whether the accused was in possession of 18 full bottles of King Fisher strong beer containing 650 ml.,without having License to posess or to sell?

(i) Whether the prosecution is able to bring home the guilt of the accused for the offences punishable under section 34(a) of A.P.Excise Act?

11. POINT No. (i):-

(i) In order to constitute an offence punishable under section 34(a) of A.P.Excise

Act, the prosecution must establish that the accused was in possession of 18 full bottles of King Fisher strong beer containing 650 ml.,,without having licence.

(ii) In order to determine the culpability of the accused, the evidence available

before this court is the oral testimonies of P.W.1 and P.W.2, Exts.P.1 to Exts. P.3 and

M.O.1.

3

CC.365 of 2015, Dt. 17/08/2016

(iii) P.W.1 deposed that on 13/06/2014, he assisted P.W.2 along with other staff members in conducting raids. At about 10.30 am., while they were conducting raids at

Appalaagraharam village, they noticed the accused who was going towards

Applaagraharam village by carrying one urea bag in his right hand. On seeing them, the accused perturbed. Out of suspicion, they surrounded him and verified the bag which was in possession of the accused. They found 18 full bottles of King Fisher strong beer containing 650 ml., each in the said bag. They tried to secure independant witnesses, but, their efforts were in vain. On enquiry, the accused revealed his identity and confessed that he purchased the liquor bottles at Kakarapalli for the purpose of resale at higher price to eke out his livelihood. As such, P.W.2 seized the liquor bottles under the cover of Ext.P.1. M.O.1 was separated for the purpose of chemical analysis.

There after, the accused was arrested and brought to the Prohibition and Excise station,

Rajam. P.W.2 testified about conducting raids and seizure of the liquor bottles in the same lines as deposed by the P.W.1. He also testified that based on the Ext.P.1, he registered Ext.P.2, enlarged the accused on bail and forwarded the sample bottle i.e.,M.O.1 to the Regional Prohibition and Excise Laboratory, Visakhapatnam for analysis and on receipt of Ext.P.3, he laid charge sheet against the accused.

(iv) In order to establish the possession and recovery of 18 bottles of King Fisher beer containing 650 ml., from the possession of the accused, the prosecution must establish it, either by adducing independent evidence or by offering plausible explanation showing the circumstances are such that it was an impossible task for them to secure the independent witness, as such seizure and drawing of sample i.e., M.O.1 by them in the absence of independent witnesses is justifiable. Though P.W.1 and P.W.2 deposed mechanically that their efforts to secure independent witnesses were in vain, it cannot be relied upon, since, they have not furnished the details as regards to the efforts made by them in securing independant witnesses. During the cross examination, they fairly admitted that the village revenue officials are residents of Appalaagraharam Village and there are schools in the said village. As such, there was no difficulty for them to secure independant witnesses. On perusal of the evidence available on record, the prosecution has failed to offer plausible explanation for non following of the procedure contemplated under section 100 of Code of Criminal Procedure. Hence, In the absence of plausible explanation for not following the procedure contemplated under the sacrosanct provision of Section 100 of Code of Criminal Procedure, at the time of alleged seizure of liquor of bottles, it is not safe to base conviction by relying upon their testimonies.

(vi) Apart from that the alleged date of Seizure and collection of sample i.e., M.O.1 was on 13/06/2014, but, it was transmitted to Prohibition and Excise laboratory,

Visakhapatnam for analysis on 21/06/14 nearly after one week. There is no single whisper in the testimonies of P.W.1 and P.W.2 as to in whose custody M.O.1 was till 4

CC.365 of 2015, Dt. 17/08/2016

such time. Since, the batch numbers of the liquor bottles said to have been seized were not mentioned in the Ext.P.1, the possibility of tampering of the same cannot be ruled out. In view of the above discussion, in the absence of independent evidence, it is not safe to base conviction, by holding that the seizure and possession of 18 bottles of King

Fisher beer containing 650 ml.,is proved by prosecution by attaching weight to M.O.I.

This point is answered accordingly.

12. Point No. (ii)-

In view of the discussion under Point No (i), it is held that the prosecution has failed to bring home the guilt of the accused for the offence punishable under section 34(a) of Excise Act.

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

Section 34 (a) of A.P. Excise Act and accordingly he is acquitted under Section 248(1)

Code of Criminal Procedure. M.O.1 which is deposited vide C.P.No.42/2016 shall be destroyed after the expiry of appeal time. The accused executed bonds for an amount of Rs.5,000/- by undertaking to appear before the Appellate Court, if any appeal is preferred against him in compliance with Section 437(A) of Cr.P.C.,

Partly dictated to the personal Assistant, transcribed by her, partly typed in my Laptop, prints are taken by her, corrected and pronounced by me in open court, this the 17th day of August, 2016.

JUDL. MAGISTRATE OF 1ST CLASS RAJAM Appendix of Evidence Witnesses Examined For Prosecution: PW.1 : G. Govinda Rajulu

PW.2 : M. Srinivasa Rao

For Defence: None

Documents Marked

For Prosecution: Ex.P1 : Occurrence report dated 13.06.2014.

Ex.P2 : Original FIR dated 13.06.2014.

Ex.P3 : Analysis report dated 17.07.2014.

For defence: Nil Material Objects: Empty sample bottle of Kingfisher Strong Beer.

JUDL. MAGISTRATE OF 1ST CLASS RAJAM 5

CC.365 of 2015, Dt. 17/08/2016

FORM NO.71

Calendar & Judgment (for use in cases where there is one accused person)

DISTRICT OF SRIKAKULAM

IN THE COURT OF THE JUDICIAL MAGISTRATE OF 1ST CLASS, RAJAM

DATE OF

OFFENCE: 13/06/2014 REPORT OR 13/06/2014 COMPLAINT: APPREHENSION OF ACCUSED: --- RELEASE ON BAIL: --- COMMENCEMENT OF TRIAL: 30/03/2016 CLOSE OF TRIAL: 15/07/2016 SENTENCE OR ORDER: 17/08/2016

EXPLANATION OF DELAY AND Non production of witness in time by the complainant. REMARKS: JUDGMENT IN C.C: 365 of 2015 Cr.No. 39/2014-15

COMPLAINANT: The State represented by the Proh. & Excise Inspector, Proh. & Excise Station, Rajam.

NAME, AGE, FATHER’S Chigulapalli Narasimha Murthy, S/o. Late Suryanarayana,

NAME, RELIGION,

aged about 52 years, Caste of Kalinga, R/o. Appala

CALLING, RESIDENCE

Agraharam Village, Santhakaviti Mandal, Srikakulam District.

AND TALUK OF THE

ACCUSED: OFFENCE: 34(a) of AP Excise Act Penalty for illegal import etc.,

FINDING: Found not guilty SENTENCE: In the result, the accused is found not guilty for the offence punishable under Section 34 (a) of A.P. Excise Act and accordingly he is acquitted under Section 248(1) Code of Criminal Procedure. M.O.1 which is deposited vide C.P.No.42/2016 shall be destroyed after the expiry of appeal time. The accused executed bonds for an amount of Rs.5,000/- by undertaking to appear before the Appellate Court, if any appeal is preferred against him in compliance with Section 437(A) of Cr.P.C., DATE OF RECEIPT FROM THE MAGISTRATE: 17/08/2016

JUDL. MAGISTRATE OF 1ST CLASS RAJAM

To The Hon’ble 1 st Addl. District Judge, Srikakulam

Calendar Case No. 365/2015 Date of Judgment: 17/08/2016 Date of Dispatch of Calendar: Date of Receipt: Remarks of 1st ADJ, Srikakulam:

Copy to the Superintendent of police, Srikakulam 6

CC.365 of 2015, Dt. 17/08/2016

The accused is examined u/sec. 313 of Cr.P.C.

All the incriminating material available in the testimonies of prosecution witnesses against him is explained to him in Telugu. Having understood the same he denied the offence and reported no defence evidence. Hence for arguments and judgment. Call on 17.08.2016.

7

CC.365 of 2015, Dt. 17/08/2016

17/08/2016:

Police Present, accused present heard both sides matter kept aside to pronounce judgment through the courts of the day.

8

CC.365 of 2015, Dt. 17/08/2016

Judgment pronounced (vide separate):

In the result, the accused is found not guilty for the offence punishable under Section 34 (a) of

A.P. Excise Act and accordingly he is acquitted under Section 248(1) Code of Criminal Procedure.

M.O.1 which is deposited vide C.P.No.42/2016 shall be destroyed after the expiry of appeal time.

The accused executed bonds for an amount of

Rs.5,000/- by undertaking to appear before the

Appellate Court, if any appeal is preferred against him in compliance with Section 437(A) of Cr.P.C., 9

CC.365 of 2015, Dt. 17/08/2016

, 10

CC.365 of 2015, Dt. 17/08/2016

1

CC.175 of 2015, Dt. 18/08/2016

BEFORE THE COURT OF JUDICIAL MAGISTRATE OF 1ST CLASS, RAJAM

Present: Smt. K. Krishna Satyalatha, Judl.Magistrate of 1st Class, Rajam

Friday, the 19th day of August, 2016

Calendar Case No.175 of 2015 Between:

The State represented by the Proh. & Excise Inspector, Proh. & Excise Station, Rajam. … Complainant. And:

Midatana Appala Naidu, S/o. (Late) Sambanna, aged about 70 years, Caste of Kapu, R/o. Tunivada Village, R.A.Valasa Mandal, Srikakulam District. … Accused

This case coming on 18/08/2016 for final hearing before me in the presence of learned Assistant Public Prosecutor for the State and Smt. B. Tirupathi Naidu, Advocate for the accused and upon hearing both sides and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1. The then Inspector of Prohibition and Excise Station, Rajam laid charge sheet against the accused for the offence punishable u/section 34(a) of AP Excise Act in

Cr.No.116/2014-2015.

2. The brief averments of the charge sheet are on 19.12.2014 at about 11.00 AM., while Sri M. Srinivasa Rao, the then Inspector of Proh. & Excise Station, Rajam was conducting raids at the B.T. road which leads to Regidi along with Sri. G. Govinda

Rajulu, the then Head Constable of Proh. & Excise Station, Rajam, Sri. P. Rama Rao,

Constable of Proh. & Excise Station, Rajam, they noticed the accused who was going towards Tunivada Village, by carrying one Urea hand bag in his right hand. On seeing the police he perturbed and tried to escape from that place. As such, out of suspicion they surrounded him and stopped him. They verified the urea bag which was a possession of the accused and found 5 full pint bottles of Officer’s Choice Reserve

Whisky. On enquiry the accused revealed his identity and confessed that he was taking the liquor bottles to sell them at Tunivada Village for higher price without having license. As such, he seized the liquor bottles from the possession of accused under the cover of occurrence report. One sample bottle was separated for the purpose of chemical analysis from the liquor bottles seized. Thereafter he arrested the accused and brought to the police station along with the property seized.

Based on the occurrence report he registered a case and investigated into.

During the course of investigation he sent the sample bottle to the Regional Prohibition 2

CC.175 of 2015, Dt. 18/08/2016

and Excise Laboratory, Visakhapatnam for chemical analysis under the cover of letter of advice. The analyst after thorough analysis opined that the sample bottle contained

Indian Liquor. On receipt of the analysis report he laid charge sheet against the accused. Hence this case.

3. The cognizance is taken u/Sec.190(1) (b) of Code of Criminal Procedure for the offence punishable under Section 34 (a) of A.P.Excise Act.

4. On appearance of the accused, copies of documents were furnished to him as contemplated u/Sec.207 of Code of Criminal Procedure and rule 8 of Criminal Rules of

Practice.

5. Heard. The accused was examined under section 239 Code of Criminal

Procedure. Charge under section 34 (a) of A.P. Excise Act was framed against the accused, read over and explained to him in Telugu, having understood the same, he denied the offence and claimed to be tried.

6. During the course of trial, in order to substantiate the case of the prosecution, it got examined P.W.1 and P.W.2 and exhibited Exts.P1 to Exts.P.3 and M.O.1.

7. After completion of prosecution side evidence, the accused was examined under section 313 of Code of Criminal Procedure. All the incriminating material available in the evidence of prosecution witnesses is explained to him in Telugu, having understood the same he denied the offence and reported no defence evidence.

8. Heard both sides.

9. In view of the rival contentions, now the points that require determination are:-

(i) Whether the accused was in possession of 5 full pint bottles of Officer's choice reserve whisky without having License to posess or to sell?

(i) Whether the prosecution is able to bring home the guilt of the accused for the offences punishable under section 34(a) of A.P.Excise Act?

10. POINT No. (i):-

(i) In order to constitute an offence punishable under section 34(a) of A.P.Excise

Act, the prosecution must establish that the accused was in possession of 5 full pint bottles of officer's choice reserve whisky without having licence.

3

CC.175 of 2015, Dt. 18/08/2016

(ii) In order to determine the culpability of the accused, the evidence available

before this court is the oral testimonies of P.W.1 and P.W.2, Exts.P.1 to Exts.P.3 and

M.O.1.

(iii) P.W.1 deposed that on 19/12/2014, he assisted P.W.2 along with other staff members in conducting raids. At about 11.00 am., while they were conducting raids at the tar road which is situated at Tunivada Village, they noticed the accused who was going towards Tunivada village by carrying one urea bag in his right hand. On seeing them, the accused perturbed. Out of suspicion, they surrounded him and verified the bag which was in possession of the accused. They found 5 full pint bottles of Officer's

Choice Reserve whisky in the said bag. They tried to secure independant witnesses, but, their efforts were in vain. On enquiry, the accused revealed his identity and confessed that he purchased the liquor bottles at Ungaradametta for the purpose of resale at higher price to eke out his livelihood. As such, P.W.2 seized the liquor bottles under the cover of Ext.P.1. M.O.1 was separated for the purpose of chemical analysis.

There after, the accused was arrested and brought to the Prohibition and Excise station,

Rajam. P.W.2 testified about conducting raids and seizure of the liquor bottles in the same lines as deposed by the P.W.1. He also testified that based on the Ext.P.1, he registered Ext.P.2, enlarged the accused on bail and forwarded the sample bottle i.e.,M.O.1 to the Regional Prohibition and Excise Laboratory, Visakhapatnam for analysis and on receipt of Ext.P.3, he laid charge sheet against the accused.

(iv) In order to establish the possession and recovery of 5 full pint bottles of Officer's

Choice Reserve whisky from the possession of the accused, the prosecution must establish it, either by adducing independent evidence or by offering plausible explanation showing the circumstances are such that it was an impossible task for them to secure the independent witness, as such seizure and drawing of sample i.e., M.O.1 by them in the absence of independent witnesses is justifiable. Though P.W.1 and

P.W.2 deposed mechanically that their efforts to secure independent witnesses were in vain, it cannot be relied upon, since, they have not furnished the details as regards to the efforts made by them in securing independant witnesses. During the cross examination, P.W.1 fairly admitted that there were farmers nearby the fields. P.W.2 also admitted that the village revenue officials are residents of Tunivada Village and they are usually available in the village. As such, there was no difficulty for them to secure independant witnesses. On perusal of the evidence available on record, the prosecution has failed to offer plausible explanation for non following of the procedure contemplated under section 100 of Code of Criminal Procedure. Hence, In the absence of plausible explanation for not following the procedure contemplated under the sacrosanct provision of Section 100 of Code of Criminal Procedure, at the time of alleged seizure of liquor of bottles, it is not safe to base conviction by relying upon their testimonies, due to the reason that excise officials step into police officials.

4

CC.175 of 2015, Dt. 18/08/2016

(vi) Apart from that the alleged date of Seizure and collection of sample i.e., M.O.1 was on 19/12/2014, but, it was transmitted to Prohibition and Excise laboratory,

Visakhapatnam for analysis on 12/01/15 nearly after twenty days. There is no single whisper in the testimonies of P.W.1 and P.W.2 as to in whose custody M.O.1 was till such time. Since, the batch numbers of the liquor bottles said to have been seized were not mentioned in the Ext.P.1, the possibility of tampering of the same cannot be ruled out. In view of the above discussion, in the absence of independent evidence, it is not safe to base conviction, by holding that the seizure and possession of 5 full pint bottles of Officer's Choice Reserve whisky,is proved by prosecution by attaching weight to

M.O.I. This point is answered accordingly.

11.Point No. (ii)-

In view of the discussion under Point No (i), it is held that the prosecution has failed to bring home the guilt of the accused for the offence punishable under section 34(a) of Excise Act.

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

Section 34 (a) of A.P. Excise Act and accordingly he is acquitted under Section 248(1)

Code of Criminal Procedure. M.O.1 which is deposited vide C.P.No.41/2016 shall be destroyed after the expiry of appeal time. The accused executed bonds for an amount of Rs.5,000/- by undertaking to appear before the Appellate Court, if any appeal is preferred against him in complaince with Section 437(A) of Cr.P.C.,

Partly dictated to the personal Assistant, transcribed by her, partly typed in my Laptop, prints are taken by her, corrected and pronounced by me in open court, this the 18th day of August, 2016.

JUDL. MAGISTRATE OF 1ST CLASS RAJAM Appendix of Evidence Witnesses Examined For Prosecution: PW.1 : Sri. G. Govinda rajulu, Head Constable of Proh. & Excise Station, Rajam. PW.2 : Sri. M. Srinivasa Rao, Inspector of Prohibition & Excise Station, Rajam.

For Defence: None Documents Marked For Prosecution: Ex.P1 : Occurrence report dated 19.12.2014.

Ex.P2 : Original FIR in Cr.No. 116/2014-2015, dated 19.12.2014.

Ex.P3 : Analysis report dated 22.01.2015 issued by Regional Prohibition & Excise Laboratory, Visakhapatnam.

5

CC.175 of 2015, Dt. 18/08/2016

For defence: Nil Material Objects: M.O.1 empty sample bottle of Officers choice reserve whisky.

JUDL. MAGISTRATE OF 1ST CLASS RAJAM 6

CC.175 of 2015, Dt. 18/08/2016

FORM NO.71

Calendar & Judgment (for use in cases where there is one accused person)

DISTRICT OF SRIKAKULAM

IN THE COURT OF THE JUDICIAL MAGISTRATE OF 1ST CLASS, RAJAM

DATE OF

OFFENCE: 19/12/2014 REPORT OR 19/12/2014 COMPLAINT: APPREHENSION OF ACCUSED: --- RELEASE ON BAIL: --- COMMENCEMENT OF TRIAL: 28/04/2016 CLOSE OF TRIAL: 15/07/2016 SENTENCE OR ORDER: 19/08/82016

EXPLANATION OF DELAY AND Non production of witness in time by the complainant. REMARKS: JUDGMENT IN C.C: 175 of 2015 Cr.No. 116/2014-15

COMPLAINANT: The State represented by the Proh. & Excise Inspector, Proh. & Excise Station, Rajam.

NAME, AGE, FATHER’S Midatana Appala Naidu, S/o. (Late) Sambanna, aged about

NAME, RELIGION,

70 years, Caste of Kapu, R/o. Tunivada Village, R.A.Valasa

CALLING, RESIDENCE

Mandal, Srikakulam District.

AND TALUK OF THE

ACCUSED: OFFENCE: 34(a) of AP Excise Act Penalty for illegal import etc.,

FINDING: Found not guilty SENTENCE: In the result, the accused is found not guilty for the offence punishable under Section 34 (a) of A.P. Excise Act and accordingly he is acquitted under Section 248(1) Code of Criminal Procedure. M.O.1 which is deposited vide C.P.No.41/2016 shall be destroyed after the expiry of appeal time. The accused executed bonds for an amount of Rs.5,000/- by undertaking to appear before the Appellate Court, if any appeal is preferred against him in complaince with Section 437(A) of Cr.P.C.,

DATE OF RECEIPT FROM THE MAGISTRATE: 19/08/2016

JUDL. MAGISTRATE OF 1ST CLASS RAJAM

To The Hon’ble 1 st Addl. District Judge, Srikakulam

Calendar Case No. 175/2015 Date of Judgment: 19/08/2016 Date of Dispatch of Calendar: Date of Receipt: Remarks of 1st ADJ, Srikakulam:

Copy to the Superintendent of police, Srikakulam 7

CC.175 of 2015, Dt. 18/08/2016

, 8

CC.175 of 2015, Dt. 18/08/2016

Judgment Pronounced (vide separate): In the result, the accused is found not guilty for the offence punishable under Section 34 (a) of A.P. Excise Act and accordingly he is acquitted under Section 248(1)

Code of Criminal Procedure. M.O.1 which is deposited vide C.P.No.41/2016 shall be destroyed after the expiry of appeal time. The accused executed bonds for an amount of Rs.5,000/- by undertaking to appear before the Appellate Court, if any appeal is preferred against him in complaince with Section 437(A) of Cr.P.C.,

JMFC/Rajam 9

CC.175 of 2015, Dt. 18/08/2016