Sri.K.Pardha Saradhi Rao
III Addl.Junior Civil Judge-cum-X Addl.Judicial Magistrate of First Class at Medchal
Medchal, ADJ Court Complex · Medchal Malkajgiri · Telangana
Based on 3 recent ordersSri.K.Pardha Saradhi Rao, III Addl.Junior Civil Judge-cum-X Addl.Judicial Magistrate of First Class at Medchal, is posted at Medchal, ADJ Court Complex, Medchal Malkajgiri, Telangana, India. 3 court orders on record since 2022. 3 judgments with full text available. Primarily handles CC cases.
Featured Judgments
1
CC No.139 of 2015 Date: 27.01.2023
IN THE COURT OF III ADDL. JUNIOR CIVIL JUDGE – CUM
X ADDL METROPOLITAN MAGISTRATE,
CYBERABAD AT : MEDCHAL
Present: Sri. K.Pardha Saradhi Rao X Addl. Metropolitan Magistrate Cyberabad, at Medchal
Friday, 27 th day of January, 2023
CC No.139 of 2015
Between:- The State rep. through Sub Inspector of Police Alwal P.S.
......Complainant
AND
A1.Sri. Bambah Avnit Singh, @ Bembah Vinnu, S/o.Ranjith Sinh Bambah, Aged 31 years, Occ: Chemical Engineer, R/o 212, Dhatu Nagar, Midhani Enclave, Kanchan Bath, Hydeabad, Present R/o USA Chicago. (LOC Issued against him ) through ACP, Alwal, Cybrabad on 05.01.2012) (Case is split up and assigned new CC.308 of 2016 against A1)
A2. Mr. Mahender Kaur Bambah, W/o Ranjith Singh Bamba, aged 60 Years, Oce: House wife, R/o.212, Dhatu Nagar, Midhani Exelve, Kanchan Bath, Hydeabad.
A3.Ranjith Singh Bamba, S/o Inder Singh Mambah, Aged 60 years, Occ: Retd. Employee, R/o 212, Dhatu Nagar, Midhani Enclave, Kanchan Bath, Hydeabad. ……Accused
This case came up before me for final hearing on 20.01.2023 in the presence of A.P.P for the State and Sri G.V.Giridhar and Smt.G.Ranjeetha Dhanraj Advocates for the Accused No.2 and 3 and upon perusing the material on record and upon hearing the oral and perusing the written arguments and the matter having stood over for consideration till this day, this court delivered the following:-
J U D G M E N T
1.The Sub Inspector of Police, P.S.Alwal, filed charge sheet against the accused in Cr.No.710/2011 for the offences under sections 498-A of IPC and Sec.3 & 4 D.P.Act against accused.
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2. Brief averments in the charge sheet are as follows:
a) On 28-11-2011 at 19:30 hrs LW-1 came to Police Station and lodged a complaint stating that her marriage with Sardar
Avinth Sing Bambh took place on 08-01-2010 at MCEME
Gurudwara Saheb, Lalbazar, Trimgherry, Hyderabad as per the rites and customs. She joined with her husband at his house in
Hyderabad and they left for Chicago, U.S.A. Her husband at
U.S.A., is working and is having social security No.079946989.
Her father-in-law and mother-in-law used to call her husband over telephone and her husband used to harass her both physically and mentally and psychologically for additional amount of dowry. Her parents had conducted her marriage by incurring huge sums of money and had paid all the amounts to her in-laws as demanded by them from time to time. Her father- in-law and mother-in-law came to U.S.A in the month of October 2011 and from there onwards the harassment further increased and finally on 20-11-2011 mid night at 12 o'clock i.e., early hours of 21/11/2011 that her husband along with her father-in-law and mother-in-law beat her, abuse her in filthy language demanding for additional amounts of dowry in the form of cash, car, flat in
India and gold and necked her from out of their house i.e., 217,
Wild Flowers street, Deplanes IL 60016, U.S.A and with great difficulty she contacted her maternal brother i.e. Mam and he had arranged for a ticket to her to reach Hyderabad by using his credit card. All the gold jewellery, silver ornaments, necklaces, cash etc., are in the locker of her father-in-law and mother-in-law maintained with Andhra Bank, BDL campus Bank, Kanchan Bank,
Hyderabad. In spite of giving huge amount of dowry her husband and his parents were not satisfy and demanding additional dowry. The detailed complainant narrating all the incidents are enclosed. As such the complainant requested to take necessary action.
b) On the contents of above complaint, L.W. 8 registered a case in Crime No.701/2011 under section 498-A of IPC and 3
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Sections 3 & 4 of Dowry Prohibition Act and entrusted to L.W.9 for investigation.
c)During the course of investigation. L.W.9 examined L.W.1 to 7 and recorded their statements, and visited the house of the complainant and caused enquiries.
d) A1 was at present in the Chicago, USA, and as such L.W.6 sent a LOC through the superior officers to arrest him, and A2 and A3 were surrendered before the Hon’ble Metropolitan
Sessions Judge, at L.B.Nagar vide Crl.M.P.No.2190/2011, on
02.01.2012.
3. This case was taken on file for the offence under section 498-A of IPC and Sections 3 & 4 Dowry Prohibition Act against accused.
4.On appearance of the accused before the court, copies of documents upon which the prosecution proposed to be relied upon, were furnished to them as required U/sec.207 of Cr.P.C.
5.The accused were examined under section 239 Cr.P.C., and charges framed for the offence under section 498-A of IPC and
Sections 3 & 4 of Dowry Prohibition Act against accused were read over and explained to them in vernacular language to which they have pleaded not guilty and claimed to be tried.
6.To prove the prosecution case, it has examined Pws.1 to 6 and got marked Exs.P1 to P and to disprove its case, the defence has filed DW1 evidence, but due to his demise, his chief examination is eschewed, but documents Exs.D1 to D are marked.
7.After closure of the prosecution side evidence, the accused were examined under Section 313 Cr.P.C., they have denied the prosecution witnesses evidence and reported that they have defence evidence and accordingly filed DW1 chief affidavit, along with documents Exs.D1 to D but due to his demise his evidence was eschewed.
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CC No.139 of 2015 Date: 27.01.2023
8.Now the point for consideration is : whether the prosecution is able to establish the guilt of the accused beyond all reasonable doubt?
9.Heard arguments of learned A.P.P., and defence counsel, who has also submitted his written arguments for better appreciation of both oral and documentary evidence, by duly applying relevant holdings in the respective citations.
10.Learned A.P.P., very vehemently argued that the evidence of
Pws.1 to 6 coupled with the documentary evidence is crystal clear in proving the very accusation as levelled against the accused, as all the accused themselves are the persons who were found to be the persons harassed PW1 by demanding additional dowry, even though they were given sufficient dowry along with huge quantity of gold and silver ornaments and further the evidence of Pws.1 and 2 is quite natural, convincing and corroborative when their evidence was compared with the independent witnesses evidence whose evidence is also quite natural and convincing in speaking about the harassment mated out by the accused towards PW1 and also about their demanding
additional dowry even though they were given sufficient dowry
and huge quantity of gold and silver ornaments.
11.Learned A.P.P., further argued that the investigating officer’s evidence itself also clearly proved the very accusation of the accused and his evidence disclosed about the harassment mated out by the accused towards PW1 and the documentary evidence that was produced by the accused themselves proved the prosecution case instead of their own defence case; therefore the very demand of additional dowry by the accused from PW1 and her parents itself tantamounts to commission of offences punishable under Sections 3 and 4 of Dowry Prohibition Act so also the offence punishable under Section 498A IPC., as all the prosecution witnesses have deposed before this Court in one breadth that they have well known about the very advancing cash and gold and silver ornaments and their evidence itself also 5
CC No.139 of 2015 Date: 27.01.2023
clearly proved the very demand of additional dowry and hence urged to convict the accused for the offences with which they stood charged.
12.On the other hand, learned counsel for the accused very vehemently argued that the evidence of Pws.1 to 5 coupled with the documentary evidence is not at all sufficient to prove the very commission of offences with which the accused were charged and the documentary evidence so adduced by the prosecution is proved to be the after thought and created and concocted for the purpose of this case and the documentary evidence so adduced by the accused as a defence was found to be the very much useful to disprove the prosecution case and thus arguing the learned counsel for the accused urged to acquit the accused, and the gist of the written arguments submitted by the accused in brief run as follows:
WRITTEN ARGUMENTS FILED ON BEHALF OF ACCUSED NO. 2
13.Though the de facto complainant mentioned in her report given to police that she has narrated all the incidents of harassment mated out by the accused towards PW1, with all documentary evidence, her report does not contain any documentary evidence, and the investigating officer’s evidence itself also tallied with the same, as PW6 investigating officer himself clearly admits that he has not receive any documents along with report that was handed over by PW1.
a) P.W-1 though alleges that she narrated all the incidents and enclosed the same with relevant papers in her written Complaint dated 28- 11-2011 but a careful perusal of said Written Complaint, no such enclosures were attached.
b) It is submitted that Learned Judge took charge sheet on file vide endorsement dated 30-04-2012 and due to fraud played by the P.W-1,
P.W-2 and P.W-6 on Hon’ble Court with regarding to serving summons on
Accused No.1 and based on their fraud no summons is served on Accused
No.1.
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c) It is further submitted that unfortunately the then Learned
Judge issued N.B.W against Accused No.1 on 25-09-2012 and on 26-04-
2016 the Learned Judge gave an endorsement in docket proceedings stating that since no progress took place in above C.C. and concerned I.O is unable to secure the presence of Accused No.1, the Learned Judge split up the case against Accused No.1 and gave a C.C.No. 308 of 2016 and posted the above
C.C. for trial.
d) It is submitted that a careful perusal of Charge Sheet dated 23-11-2011 it is clear that P.W-6 I.O played fraud on Hon’ble Court in connection with serving of summons on Accused No.1. At first page of
Charge Sheet the I.O clearly stated that Accused No.1 at present residing at
U.S.A Chicago. Whereas at internal page No.4 the I.O clearly stated that “Her Husband at present is working in M/s. New Verger Berman and he is staying at 217, Wild Flower Street, Desplanes, IL 60016, USA, since 2010”
d) Hence, sending L.O.C proceedings to Chicago address is nothing but fraud played by Defacto Complainant, her father (P.W-2) and
I.O/P.W-6.
f) It is submitted that due to non-cooperation by the Defacto
Complainant, her Father, P.W-2 for conducting trial, the C.C. was adjourned at least 22 times i.e., from 26-04-2016 to 31-07-2018. It is further submitted that Defacto Complainant and her Father, P.W-2 sent mediators to Accused
Nos. 2 and 3’s house and demanded huge sums i.e., Rs. 50,00,000/- (Rupees
Fifty Lakhs only) so that they will withdraw above C.C. for which Accused
Nos. 2 and 3 refused to do so.
g) It is submitted that on 18-09-2018 P.W-1 filed a Petition under Section 242 (3) of Crl.P.C. and sought to file documents and it is further submitted that the Accused Nos. 2 and 3 filed their Counter and objected since all documents are false, fictitious, fabricated and created for the purpose of securing favourable orders from this Hon’ble Court .
h) It is submitted that Defacto Complainant not placed any of the documents at the time of launching the Complaint dated 28-11-2011 or placed any documents during her Section 161 Crl.P.C. statement before I.O 7
CC No.139 of 2015 Date: 27.01.2023
which is an admitted fact and can be ascertained by careful perusal of P.W- 6/I.O cross examination done by Counsel for Accused Nos. 2 and 3.
I) It is submitted that Learned A.P.P. also informed this Hon’ble
Court that L.W-4 has died.
j) It is submitted that L.W-8 is the person who registered F.I.R.
was not examined by the Learned A.P.P. nor learned A.P.P. filed any Petition or Memo stating that he is unable to secure the presence of L.W-8 or at least sought a direction to dispense with L.W-8 presence by giving valid special reasons under Section 33 of Evidence Act.
k) On 13-03-2020 the Accused Nos. 2 and 3 filed a Petition under Section 315 of Crl.P.C. and sought to mark their documents. It is further submitted that said Petition was allowed and through Accused No.3 the following documents were marked.
l) It is further submitted that the above C.C. is posted for cross examination of D.W-1.
m) It is further submitted that due to ill health, the Accused
No.3/D.W-1 died and to the said effect a Memo was filed by the Counsels
for Accused Nos. 2 and 3 and the same is considered and this Hon’ble Court
passed docket orders dated 26-05-2022 by eschewing the Chief of Accused
No.3/D.W-1 without following the established laws of the land.
n) It is further submitted that even though evidence of D.W-1 is eschewed, the Exhibits marked through D.W-1 are part of original records and the same shall be looked into to derive a conclusion that Accused not committed the alleged offences mentioned in Charge Sheet.
o) It is submitted that after passing docket orders dated 26-05- 2022 the above C.C. is posted for arguments.
THE FACTUAL POINTS FOR CONSIDERATION:
p) It is submitted that for convenience of Arguments the alleged
Defacto Complaint dated 28-11-2011 and Ex.P series Documents be divided into various parts and Hon’ble Court may frame the following points and decide the C.C. filed against Accused No. 2.
1.Whether any dowry is taken by Accused Nos. 2 and 3 prior to marriage between P.W-1 and Accused No.1.
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CC No.139 of 2015 Date: 27.01.2023
2.Whether any additional dowry is demanded by the Accused
Nos. 2 and 3.
3.Whether P.W-2 is having sources and capacity to purchase gold etc., or incurred any expenditure in marriage as alleged by
P.W-1 and P.W-2 and alleged payment of cash Rs. 35,00,000/- to
Accused Nos. 2 and 3 at the time of marriage.
4.Whether any harassment is meted by Accused Nos. 2 and 3 against P.W-1.
5.Whether Accused Nos. 2 and 3 committed any wrong to try in present C.C since their status in Society clearly establishes that they are well to do and they were falsely implicated in present
C.C..
q) Whether Ex.P-1 to P-9 documents shall prove any case against Accused No. 2 and whether Ex.D-1 to D-14 establishes a true facts that P.W-1 and P.W-2 are trying to extract funds from Accused Persons by hook or crook.
r) Whether any cause of action arose in India and whether this
Hon’ble Court is having territorial jurisdiction to try the C.C.
POINT NOS.1, 2, 3 AND 5:-
s) It is submitted that a careful perusal of L.Ws Section 161
Crl.P.C. statements it clear that L.W-1/P.W-1, L.W-2/P.W-2 and L.W-3 said statements were drafted by P.W-2 in his own Laptop and brought the same to
P.S.Alwal in his Pen Drive and L.W-7 and L.W-8 inserted said statements in
P.W-6 personal Laptop since all Font and contents in said statement are one and the same except age, occupation, status of said L.Ws 1 to 3. It is further submitted that a careful perusal of said fonts etc., by this Hon’ble Court by invoking the provisions of Section 73 of Evidence Act, it is clear that P.W-1 and P.W-2 with aid and assistance of Police Officials i.e., L.W-7 and 8 of
P.S.Alwal played fraud on Hon’ble Court.
t) It is further submitted that a careful perusal of L.W-4 to 7’s
Section 161 Crl.P.C. statements it is again clear said statements were drafted by P.W-2 in his own Laptop and brought the same to P.S.Alwal in his Pen
Drive and L.W-7 and L.W-8 inserted said statements in P.W-6 personal laptop since all Font and contents in said statement are one and the same 9
CC No.139 of 2015 Date: 27.01.2023
except age, occupation, status of said L.Ws 4 to W-6. It is further submitted that P.W-6 categorically stated about drafting of Section 161 Crl.P.C.
statement in his laptop during his cross examination but denied the suggestion above role played by the P.W-2 and when P.W-6 questioned by the Counsel for Accused Nos. 2 and 3 with regard to the production of certificate from concerned Authorities to establish that his laptop is in good condition and he recorded Section 161 Crl.P.C. statements in his laptop and said laptop is in working conditions, he simply denied without producing certificate from concerned Authorities to prove the contents in Section 161
Crl.P.C. statements.
u) It is further submitted that a careful perusal of font size of contents in Section 161 Crl.P.C statements and the font size in Charge Sheet are totally different to naked eye of any one and hence, P.W-2 in collusion with L.W-7 and L.W-8 created a false, fictitious and fabricated story so that
Accused No. 2 is punished.
P.W.-1 CHIEF AND CROSS EXAMINATION:
v) It is submitted that a careful perusal of Ex.P-1 written
Complaint of P.W-1 she never stated about payment of Rs.35,00,000/- (Rupees Thirty Five Thousand only) cash as dowry to Accused Nos. 2 and
3. It is further submitted that payment of cash Rs.35,00,000/- (Rupees Thirty
Five Thousand only) is not a small amount to forget by P.W-1. It is further submitted that P.W-1 simply stated that P.W-2 spent huge amounts towards marriage etc. but not stated about payment of Rs.35,00,000/- (Rupees Thirty
Five Thousand only) to Accused Nos. 2 and 3 by P.W-2.
w) It is further submitted that only in her Section 161 Crl.P.C.
statement She improved her version and stated about payment of dowry which is nothing but an afterthought of P.W-1, P.W-2 and L.W-3 who is none other than mother of P.W-1 and hence, willful contradictions be considered for the purpose of passing an adverse remarks against P.W-1 and P.W-2.
It is further submitted that when P.W-1 was cross examined by the Counsel for Accused No. 2, P.W-1 admitted that
1)“I agree with the contents of Ex.P-1” 10
CC No.139 of 2015 Date: 27.01.2023
2)“it is not mentioned in the Complaint about incurring Rs. 38,000/- by the Parents of the Complainant towards Ardas ceremony and about giving a diamond ring, Rs. 5 Lakhs cash and clothes to Accused Nos. 1 to 3 in connection with engagement ceremony and Rs. 10,00,000/- spent by Complainant Parents towards engagement ceremony”
3)When suggestion was given to P.W-1 by the Counsel for
Accused Nos. 2 and 3, the P.W-1 stated that “It is not true to suggest that I have not mentioned about the money spent towards marriage expenditure and the cash paid to the A-1 to A- 3 and data of jewelries in my Complaint”
34.A careful perusal of Ex.P-1 Complaint, P.W-1 never stated the above true facts and hence, Section 161 Crl.P.C. statement and Chief of
P.W-1 be totally ignored with regard to payments of cash to Accused Nos. 2 and 3 and this Hon’ble Court may pass an adverse remarks against P.W-1 and P.W-2 based on their own willful contradictions.
P.W.-2 CHIEF AND CROSS EXAMINATION REGARDING
SOURCES OF INCOME AND CAPACITY TO PURCHASE GOLD,
PERFORMING MARRIAGE OF P.W/-1 :
35(a).It is submitted that P.W-2 was examined in connection with payment of cash to Accused Nos. 2 and 3. He admitted. The said admissions are hereunder.
1)“In the year 2009 I was doing Marketing Business” 2)“I am Income Tax Assessessee” 3)“I have not filed my Income Tax Returns and Wealth
Tax before this Court” 4)“I have not filed any document to show that Rs.35 Lakhs was available with me at the time of marriage of P.W-1” 5)“I filed document to show source of income to purchase gold” 35(b).It is submitted that no such documents is marked to prove that
P.W-2 is having source of Income to purchase gold. Hence, an adverse inference is drawn against P.W-2 that he is trying to mislead this Hon’ble 11
CC No.139 of 2015 Date: 27.01.2023
Court by stating that he marked document to establish that he is having sources of income to purchase gold and perform the marriage.
“I have not filed any document to show that Rs.38,000/- has spent towards Ardas ceremony, Rs.5 lakhs spent towards purchase of diamond ring and clothes, Rs. 10 lakhs spent towards Sagan ceremony and Rs. 8 lakhs spent towards marriage expenditure” 35(c)It is submitted that the following are suggestion given to P.W-2 by the Counsel for Accused Nos. 2 and 3.
a) “It is not true to suggest that as per Sikh community there is no culture of giving dowry”
b) It is not true to suggest I have not stated in my 161 Crl.P.C. statement and in my chief examination the dowry given and weight of the gold”
c) “It is not true to suggest I do not have capacity to pay the dowry and to purchase gold”
d)“It is not true to suggest that the Accused Nos. 1 to 3 never demanded for dowry prior to the marriage and after marriage”.
35(d).It is submitted that to do favour to P.W-1 and to extract money by hook or crook from Accused Nos. 2 and 3, P.W-2 deposed a false, fictitious and fabricated evidence with regard to giving dowry to Accused
Nos. 2 and 3 and purchasing Gold etc., and spending amounts towards marriage expenses etc., and hence, his evidence be ignored on the grounds that he is not having sources of income and capacity to spend amounts since he is unable to file his income tax returns, wealth tax returns to establish that he got source of income and capacity to pay.
36REGARDING GOLD ETC., PURCHASE.
(a)It is further submitted that a careful perusal of Gold purchase
Bills marked through P.W-1 it is clear said purchases were made long prior to marriage between P.W-1 and Accused No.1.
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(b)It is further submitted that the Counsel for Accused Nos. 2 and 3 while cross examining the P.W-1 and P.W-2 and other P.Ws, the P.Ws admitted certain facts which are hereunder.
(c)P.W-1 denied the suggestion that “It is not true to suggest that jewelry was purchased prior to the marriage” (d )It is submitted that a careful perusal of Gold Bills Ex.P-9 it clearly shows said purchase bills are long prior to the marriage.
(e)It is submitted that P.W-2 was cross examined by the Counsel
for Accused Nos. 2 and 3 with regard to Gold, the following are his
admission and denials.
“It is true that recently my other daughter got married” “It is not true to suggest that I have not stated in my 161 Crl.P:.C. statement and in my Chief examination about the dowry given and weight of the gold”
37.It is submitted that P.W-3 during his cross examination in connection with gold, he categorically stated that
a)“I cannot give the description of the gold articles given to P.W-1.
b)It is submitted that P.W-4 during the cross examination in connection with gold, he categorically stated that
c)““I cannot give the description of the gold articles”
d) It is submitted that P.W-6 in his cross examination categorically admitted that “P.W-1 submitted the marriage photographs along with the Complaint, except the photographs she did not submit either her passport or her travel ticket as a proof to show that she travelled from U.S.A to India. P.W-1 did not mentioned in her Complaint about the emails sent by her, the weight of gold and silver jewelry kept by her Parents at the time of her marriage, amount of expenditure incurred by them at the time of marriage and amount of dowry given to her In Laws and also not mentioned the details of the fixed deposits standing on her name .P.W-1 did not submit the bills of gold and silver jewellery… 13
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e)It is submitted that P.W-1 and P.W-2 played fraud on Hon’ble
Court and falsely created Invoices and by submitting only invoices of Gold that too said bills are pertain to long prior to the marriage between P.W-1 and
Accused No.1 and hence, said invoice cannot be looked into to decide present C.C. against Accused No. 2 since no cash receipt issued by the concerned Shop Owner were filed along with Complaint. Hence, Ex.P-9 documents be rejected in limini and an adverse remarks be passed against
P.Ws 1 and 2.
f)It is further submitted that non examination of the person who gave aforesaid alleged gold invoices or alleged bills to prove the contents thereof the said alleged gold invoices or alleged bills cannot be considered on the sole ground that author of document is not examined to prove said document contents and signatures.
19 (5)
P.W.-3 CHIEF AND CROSS EXAMINATION:
38.It is submitted that P.W-3 was examined and cross examined by the Counsel for Accused Nos. 2 and 3. The following are his admissions with regard to Dowry.
1)“I was not present at the time of marriage proposals”
2) I do not know the details of the marriage expenditure incurred by both the parties” 3)“I cannot give the description of the gold articles given to P.W-1”
4) “All the incidents were known to me through my friend/P.W.2”
39.It is submitted that by seeking Serial No.4 above it is very clear that P.W-3 is an interested witness and his evidence is nothing but hearsay evidence and he being a friend of P.W-2 and his evidence be treated as 14
CC No.139 of 2015 Date: 27.01.2023
interested witness of P.W-2 and he wants to do some favor to P.W-1 and
P.W-2 and hence, P.W-3 evidence be rejected.
19 (6)
P.W.-4 CHIEF AND CROSS EXAMINATION:
39)It is submitted that P.W-4 was examined and cross examined by the Counsel for Accused Nos. 2 and 3.
a) It is submitted that a careful perusal of his Chief he never stated about giving cash or dowry prior to the marriage between P.W-1 and
Accused No.1 and hence, his evidence need not be considered in connection with giving dowry by P.W-2 prior to the marriage.
b) It is further submitted that P.W-4 in his Chief examination stated that at the time of marriage, the Parents of P.W-1 have given 150
Tulas of gold and other house hold articles towards dowry.
c) It is further submitted that when he was cross examined by the Counsel for Accused Nos. 2 and 3 he categorically stated that
d) “I cannot give description of the gold Items”
40.It is submitted that a careful perusal of P.W-4’s Section 161
Crl.P.C. statement before I.O. he categorically stated that P.W-2 only informed him about incidences took place and hence, he be treated as interested witness and his statement be declared as hearsay evidence witness and he wants to favor P.W-2 since P.W-2 is his close friend since last 25 year.
41.P.W.-5 CHIEF AND CROSS EXAMINATION:
1)It is submitted that P.W-5 was examined and cross examined by the Counsel for Accused Nos. 2 and 3.
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2)It is submitted that P.W-5 in his Chief he never stated anything against Accused Nos. 2 and 3 with regard to dowry given prior to the marriage between P.W-1 and Accused No.1 of demand of additional dowry after marriage.
3)It is further submitted that he deposed as P.W-5 and he categorically stated that that “Later, through my daughter and through my close common friends, I came to know that the Accused No.1 harassed the P.W-1 for additional dowry and necked out her from the house. . . and later she came back to India and lodged a Complaint against Accused Nos. 1 to 3”
4)It is submitted that a careful perusal of P.W-5 Section 161
Crl.P.C. statements and compare the same with his Chief in above C.C. as
P.W-5, he never stated the following sentence stated in his Chief.
“Whenever my daughter received the call from P.W-1, I used to talk to her and P.W-1 also several times explained me about the harassment caused by A-1 to A-3”
5)It is submitted that P.W-5 when cross examined by the Counsel
for Accused Nos. 2 and 3 he categorically admitted that
“I have not witnessed any incidents between P.W-1 and the Accused persons and also I do not know the facts of harassment caused by the Accused Nos. 1 to 3 against P.W-1”.
42. It is submitted that P.W-5 Chief be ignored simply on the ground that he is only interested witness and gave hearsay evidence and hence, his statement be treated as interested witness and hearsay evidence and the
Hon’ble Court cannot rely on these type of evidence to convict Accused No.
3. It is further submitted that P.W-6/I.O not collected any call data of
any of the P.Ws or Accused person to establish that several
communications took place with regard to harassments alleged to be
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done by Accused against P.W-1 and call communications between P.W.-1
and P.W-2 and other P.Ws and hence, on this ground alone C.C. has to
be dismissed.
43.P.W.-6 CHIEF AND CROSS EXAMINATION:
1) It is submitted that P.W-6/I.O. was examined in Chief and cross examined by the Counsel for Accused Nos. 2 and 3.
2)It is submitted that P.W-6 admitted the following sentences when he was cross examined by the Counsel for Accused Nos. 2 and 3.
a)“P.W-1 did not mentioned in her complaint about the email sent by her, the weight of gold and silver jewelrygiven by her Parents at the time of marriage and amount of dowry given to her in laws and also not mentioned details of fixed deposits standing on her name and the same is given to her in laws”.
b)“P.W-1 did not submit the bills of gold and silver jeweler, copies of F.D.Rs, Air ticket, email copies etc., along with the Complaint”
c)“It is true that I was working in the Alwal P.S on 02-12-2012 I addressed a letter to the Branch Manager, Andhra Bank to allow the Complainant/P.W-1 to operative the Safety Lockers in the presence of Accused Nos. 2 and 3 and her family members and I did not mention the same in my Charge Sheet”
d)“It is true that I submitted the details in the C.D. file about the acknowledgment of receiving the gold and silver articles by the P.W-1 and 2. I did not mentioned the same in my Charge Sheet”
3)It is submitted that based on above admissions of P.W-6 it is clear that
P.W-1 and P.W-2 played fraud on Hon’ble Courts by giving false, fictitious, fabricated statements to cause wrongful loss to Accused and to see that social status of Accused No. 3 is destroyed in Society and to extract money from Accused Nos. 2 and 3 by hook or crook.
20.POINT NO.4:-
Whether any harassment is meted by Accused Nos. 2 and 3 against P.W-1.
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1). It is submitted that the marriage between P.W-1 and Accused
No.1 was performed on 08-01-2010 in Hyderabad.
2).After few days stay at matrimonial home of Accused No.1, the
P.W-1 and Accused No.1 visited Accused Maternal Uncle House at Nagpur on 14-01-2010 since Accused Maternal Uncle did not attend the marriage due to sickness and stayed there in the Maternal Uncle house for few hours and thereafter P.W-1 and Accused No.1 left to Mumbai and stayed their till evening of 15-01-2010 and Accused No.1 and P.W-1 left Mumbai and reached Hyderabad by evening flight (Ex.D-7) Air Ticket documents shall reveal the date and time travelled by P.W-1 and Accused No. 1 to Mumbai).
3). It is submitted that a careful perusal of Section 161 statement and Chief of P.W-1 she categorically stated that
In Section 161 Crl.P.C. statement.
“After marriage I started staying with my husband at 212, Dhatunagar, Medhani Enclave, Kanchanbagh, Hyderabad and from their myself and my Husband had gone to USA on 19-01-2010”
In P.W-1 Chief: “After marriage I along with Accused No.1 stayed for one week with my in laws at Hyderabad. After that we went to America”
4)It is submitted that staying in In Laws House for one week is not true.
P.W-1 with ill intention simply not stated about her visit to Nagpur and also
Mumbai. It is clear that P.W-1 stayed with her in laws house only for five days. More over in these five days both P.W-1 and Accused No.1 were travelling to various places in twin cities to meet their friends and relative for breakfast, lunch or dinner or used to go to P.W-1 Parents house and
Accused Nos. 2 and 3 not even had 10 minutes talks with P.W-1 and
Accused No.1.
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5)It is submitted that even during P.W-1 stay at U.S.A with Accused
No.1, only Accused No.1 used to talk to Accused Nos. 2 and 3 through phone and P.W-1 used to talk with Accused Nos. 2 and 3 occasionally that too only on festival time and P.W-2 used to greet Accused Nos. 2 and 3 on their birth day occasions.
6).It is submitted that Accused No.2 retired from his service during the month of September, 2011 and hence, Accused No. 1 invited Accused Nos. 2 and 3 to U.S.A. It is further submitted that Accused Nos. 2 and 3 visited
U.S.A on 03-10-2011 and stayed up to 30-11-201. It is further submitted that Accused No.1 secured two floors house at U.S.A and Accused No.1 and
P.W-1 resided in first floor and Accused Nos. 2 and 3 temporarily resided in ground floor. It is further submitted that during Accused Nos. 2 and 3 temporary stay at U.S.A the Accused No.1 and P.W-1 took Accused Nos. 2 and 3 to various places and all them used to have lunch or dinner together and P.W-1 used to take selfie photographs whenever all of them visit various places and all of them maintained cordial relationship and used to jokes and used to exchange various gifts. It is further submitted that Accused No.3 gave 1,400 hundred U.S.dollars to P.W-1 for the purpose of purchase of I-
Pad. In fact she purchased I-Pad and she used to send mails through her I-
Pad to her Parents. It is further submitted that non marking of I-Pad of
P.W-1 by the P.W-6 clearly establishes that P.W-1 created false, fictitious and frivolous mails after she reached Hyderabad from U.S.A and filed 3 mails i.e.,Ex.P-3 to P-5 .as if she sent those mails from U.S.A and hence, an adverse remarks be passed against P.W-1 and P.W-2.
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7)It is submitted that a careful perusal of Anticipatory Bail orders dated 02-01-2012 passed in Crl.M.P.No. 2190 of 2011 in crime No. 710 of 2011 the Hon’ble Metropolitan Session Judge based on documents submitted by the Accused Nos. 2 and 3 and based on C.D. file submitted by the I.O/P.W-6 categorically stated the above facts and hence, the question of demanding
additional dowry, the alleged harassments etc., are all only after thought and
P.W-1 and P.W-2 with ulterior motive and to extract huge amounts from
Accused Nos. 2 and 3 falsely inserted the names of Accused Nos. 2 and 3 in the above C.C.
8)It is further submitted that learned Judge while passing anticipatory bail order in above Crl.M.P. at page No.2 top, the Learned Judge categorically stated that “Whereas Counsel for Petitioners filed photos of these Petitioners along with Deffacto Complainant with a jubilant mood in USA ALSO A RECEIPT ISSUED BY Micro Centre Computer and Electronics dated 30-11-2011 as a proof that Defacto Complainant purchased I Pad on 21-11-2011 i.e., one day subsequent to allged incident of neck out of Defacto Complainant from matrimonial home and also a receipt said to have been passed by Defacto Complainant about opening of the Bank Locker and receiving valuable ornaments as mentioned there on 02-12-2011 at 4.30 PM. As seen from the Complaint averments all the allged incidents of ill treatment, harassment mentally, physically on the part of A-1 and these incidents taken place in USA and further no instances or such harassment has continued even after Defacto Complainant returned to India from the Petitioners even it is not during her 10 days immediately after Complainant averments no harassment took place in India. . . “ 21POINT NO. 6:-
1)It is submitted that P.W-1 while launching of Complaint to P.S.
Alwal did not submit any documents to establish her case. It is further submitted that P.W-1 only when trial commenced filed a Petition under 20
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Section 242 (3) of Crl.P.C. and sought to mark certain created, fictitious documents to establish her ill motive ideas.
2)It is submitted that the person who received F.I.R. and registered the same i.e., L.W-7 failed to appear before this Hon’ble Court to prove said contents as well as signatures. It is well known principles in law that unless author of person comes to witness box and mark the documents to prove the contents etc. and to prove his signatures in said document, the
F.I.R. cannot be marked through any other person. More over the F.I.R. is not a public document. It is further submitted that no reasons were given by the learned A.P.P. in writing under Section 33 of Evidence Act or by the
I.O/P.W-6 why L.W-7 not appeared before this Hon’ble Court.
3)It is submitted that when I.O/P.W-6 entered into witness box and the Counsel for Accused Nos. 2 and 3 cross examined him with regard to false, fictitious and fabricated documents brought by P.W-1. It is further submitted that P.W-6/I.O. has admitted about non submission of documents by P.W-1. It is submitted said admissions are hereunder.
“P.W-1 submitted the marriage photographs along with the Complaint, except the photographs she did not submit either her passport or her travel ticket as a proof to show that she travelled from U.S.A to India. P.W-1 did not mentioned in her Complaint about the emails sent by her, the weight of gold and silver jewelry kept by her Parents at the time of her marriage, amount of expenditure incurred by them at the time of marriage and amount of dowry given to her In Laws and also not mentioned the details of the fixed deposits standing on her name .P.W-1 did not submit the bills of gold and silver jewelry…
4)It is submitted that P.W-1 and P.W-2 played fraud on
Hon’bleCourt and falsely created Invoices without cash receipts and various
documents annexed with Petition filed under Section 242 (3) of Crl.P.C. and by submitting only invoices of Gold without cash receipts issued by the 21
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concerned shop owners of Jeweler and that too said bills pertain to long prior to the marriage between P.W-1 and Accused No.1 and non-examination of author of alleged gold invoices and bills to prove the contents and signatures an adverse inference be drawn under Section 114 (g) of Evidence Act and hence, said invoice and other documents marked as Ex.P-9 cannot be looked into to decide present C.C. against Accused Nos. 2 and 3.
5)It is submitted that Ex.P-2 to P-4 are E mails marked through
P.W-1 subject to objection. It is further submitted that without submitting the said E mails before Police i.e., before L.W-7 and LW-8/P.W-6, the P.W-1 brought the said documents by way of Petition under section 242 (3) of
Crl.P.C. It is further submitted that contents in said E Mails are nothing but a false, frivolous and fraudulently created by P.W-1 and P.W-2 only for the purpose of causing wrongful loss to Accused Person and these Accused persons are reserving their right to file a Complaint on the ground of malaises prosecution and shall also claim damages to the tune of
Rs.10,00,00,000/- (Rupees Ten Crores only) from P.W-1 and P.W-2 in a
Court of law. It is further submitted that Ex.P-2 to P-4 cannot be receive in evidence and moreover, the P.W-1 has not submitted the certificates as require under Section 65-B (4) of Indian evidence Act,1872 to establish that aforesaid E mails generated from a particular Computer or I-Pad and said
Computer or I-Pad is owned by her etc., and said Computer or I-Pad are in good condition etc.
6)It is submitted that P.W-1 marked Ex.P-5 documents and stated in her Chief that her father P.W-2 deposited certain amounts by way of fixed 22
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deposit in Postal saving and that Accused No.1 without her consent simply withdrawn and cheated her.
7)It is submitted that the Counsel for Accused Nos. 2 and 3 cross examined P.W-1 and P.W-2 in connection with Ex.P-5 documents and P.W-1 and P.W-2 clearly admitted the following:-
P.W-1:- “It is not true to suggest that my father gave money for fixed deposits”
P.W-2:- “It is not true to suggest that Accused No.3 contributed a sum of Rs. 9 Lakhs for postal savings in the name of P.W-1 and Accused No.2. I do not know whether I have filed postal savings documents which stands in the name of P.W-1”
It is submitted that real and true facts regarding Ex.P-5 Postal savings are hereunder.
6).It is submitted that Accused No.3 while discharging his duties in his employment he used to save his income in his Bank Account. It is further submitted that Accused No.3 out of his love and affection towards
Accused No.1 he drawn a sum of Rs.9,00,000/- (Rupees Nine Lakhs only) from his savings and gave it to Accused No.1. Please see Ex.D-13 to 15 documents shall establishes that Accused No.3 is having sources of income and his Pass Entry in Ex.D-15 shall establishes that he deposited funds and withdrawn Rs.9,00,000/- (Rupees Nine Lakhs only) and gave it to Accused No.1 to deposit in Postal Department towards fixed Deposit.
It is further submitted that when Accused No.1 in Hyderabad he deposited aforesaid amounts in Postal savings. It is further submitted that while submitting an application in Postal Department he also mentioned 23
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P.W-1 name as joint holder only with an intention that if he unable to visit Hyderabad due to his employment, the P.W-1 may draw said amounts from Postal Department. It is further submitted that a careful perusal of said document it is clear that Accused No.1 nominated
Accused No.2 only as nominee but not P.W-1 since Accused No.1 knows that only Accused No.3’s contributed Rs.9,00,000/- (Rupees Nine Lakhs only) and hence, he nominated his mother as nominee.
7)It is submitted to prove the funds are provided by Accused No.3 in favor of Accused No.1, the Accused No.3 marked the Bank Statement of Account as Ex.D-15.
8)It is submitted that P.W-1 and P.W-2 hatched a plan to knock away aforesaid amounts falsely filed Ex.P-5 documents and are trying to mislead this Hon’ble Court by saying that P.W-2 out of his own funds gave Rs.9,00,000/- in favor of P.W-1 which is nothing but false, fictitious and frivolous claim of P.W-1 and P.W-2.
9)It is submitted that P.W-2 failed to file any document to prove that he got sources of income and capacity to pay Rs.9,00,000/- towards postal savings deposit.
10).It is submitted that P.W-1 marked Ex.P-6 document which is an air ticket. It is further submitted that P.W-1 purposely suppressed the Baggage weight list card which will be annexed with Air
Ticket which is a condition precedent as per laws of any Country. It is further submitted that P.W-1 informed Accused Nos. 2 and 3 after talking to her Parents through phone at about 6.30 PM U.S.A (please See anticipatory Bail orders wherein the Learned Sessions Judge 24
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categorically stated about conversation and looking into Photos of P.W-1 and Accused Nos. 2 and 3) time that she wants to attend some function at
Hyderabad and for that reasons she is taking assistance of her uncle at
U.S.A and she will leave U.S.A on next day and went upstairs portion and packed her cloths in three bags. Please also See the Mail marked through D.W-1 which clearly establishes that Accused No.1 sent mail to
P.W-1 and narrated about her journey etc.
11)It is further submitted that a careful perusal of her
Section 161 Crl.P.C. statement and her Chief she categorically stated that she was beaten and neck out of matrimonial home and she contacted her uncle and her uncle purchased ticket with his Credit Card. It is further submitted that to prove aforesaid contents she must examine her uncle at least through vedio conference proceedings to establish true facts and also about alleged necking out of matrimonial home and purchase of Air
Ticket. I further submit that even I.O/P.W-6 categorically stated that
P.W-1 not handed over her Air Ticket to him during the investigating stage and hence, Ex.P-6 Air Ticket be rejected.
12)It is further submitted that non examination of P.W-1’s
Uncle who purchased Air ticket and to prove about alleged harassment meted by Accused persons at U.S.A. the self-declaratory statement of
P.W-1 cannot be looked into.
21 (2)
It is submitted that P.W-1 marked Ex.P-7 (10 bills pertains to
Gold etc.)
1.It is submitted that P.W-1 in her Chief examination she stated that 25
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“My parents gave Rs. 35 Lakhs of cash, 150 Tulas of Gold to Accused Nos. 2 and 3”
It is submitted that in her cross examination she categorically admitted that “It is true that I have received only half of the jewelry. It is not true to suggest that after receiving entire jewelry I made a false statement against the Accused Nos. 2 and 3” “It is not true to suggest that jewelry was purchased prior to the marriage”
2.It is submitted that P.W-2 was examined in Chief and he stated that “. . . pre marriage events I gave 100 Tulas of gold to A-1 to A-3 as demanded by them. We also gave gold to daughter and son in law of A-2 and A-3”
It is submitted that P.W-2 was cross examined by the Counsel
for Accused Nos. 2 and 3 and his admission are hereunder.
“It is true that recently my other daughter”
2.“I filed document to show source of income to purchase gold”
It is submitted that P.W-2 with malafide intention to cause wrongful loss to Accused No. 2 mislead this Hon’ble Court without filing any such documents to establish that he purchased gold and hence, an adverse remarks be passed against P.W-2.
3.It is true that we have received part of the gold from Accused No.2 on 02-12-2011. It is true that on 06-12- 2011 we have received silver plate and fixed deposits of P.W-1 from Accused No.2”.
4.It is submitted that P.W-6 is I.O and he was cross examined by the Counsel for Accused Nos. 2 and 3 and his admissions are hereunder.
1)“P.W-1 did not submit the bills of gold and silver jeweler, copies of F.D.Rs, Air ticket, email copies etc., along with the Complaint” 26
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2)“It is true that I was working in the Alwal P.S on 02-12-2012 I addressed a letter to the Branch Manager, Andhra Bank to allow the Complainant/P.W-1 to operative the Safety Lockers in the presence of Accused Nos. 2 and 3 and her family members and I did not mentioned the same in my charge sheet”
3)“It is true that I submitted the details in the C.D. file about the acknowledgement of receiving the gold and silver articles by the P.W-1 and 2. I did not mentioned the same in my charge sheet”
It is submitted that based on above admissions of P.W-6 it is clear that P.W-1 and P.W-2 played fraud on Hon’bleCourts by giving false, fictitious, fabricated statements to cause wrongful loss to Accused Nos. 2 and 3 and to see that social status of Accused No. 2 is destroyed in Society and to extract money from Accused No. 2 by hook or crook.
6).It is further submitted that a careful perusal of Ex.P-7 Gold,
Diamond Bill, entire Bills or Invoices etc., pertain to in the year 2009 that too prior to marriage between P.W-1 and Accused Nos. 1.
REGARDING SOURCES OF INCOME, CAPACITY TO PAY AND
SPEND AMOUNTS BY P.W.-2.
7).It is further submitted that the Counsel for Accused Nos. 2 and 3 cross examined the P.W-2 regarding sources of income and capacity purchase gold etc., He admitted that he being an Income Tax Assesse but failed to mark his Income tax Returns and failed to file any document to show that as on the year 2009 he is having sources of income to purchase
Gold etc. Hence, any statements in Complaint, Section 161 Crl.P.C.
statements and Chief of P.W-1 and P.W-2 be ignored on the ground that P.W- 1 and P.W-2 totally mislead this Hon’ble Court by exhibiting their lies. More over P.W-6 also failed to verify the Bank Accounts of P.W-1 and P.W-2 to establish that P.W-2 is having sources of income and capacity to purchase 27
CC No.139 of 2015 Date: 27.01.2023
gold etc and perform marriage with such huge expenditure and giving alleged dowry of Rs.35,00,000/- (Rupees Thirty Five Lakhs only).
8).It is submitted that a careful perusal of Ex.P-7 annexed Bills it is clearly said bills stood in the name of P.W-1, P.W-3 and L.W-3. It is further submitted that L.W-3 failed to appear before this Hon’ble Court in spite of giving ample opportunities. Hence, marking the document dated 25- 09-2009 through P.W-1 be rejected on the ground unless the possessor of the document comes to witness box and mark the same to prove the contents and signatures, said document cannot be received in evidence.
9).It is submitted that document dated 20-07-2009 does not contain signature of person who received gold articles.
10).It is submitted that a careful perusal of the part of receiver signature in document dated 26-07-2009 of P.W-1 is rank forged signature and hence, this Hon’ble Court is having ample power under Section 73 of
Evidence Act to compare the signatures of P.W-2 in his Chief and Cross examination with that of Document dated 26-07-2009 and reject the same.
11).It is submitted that a careful perusal of the part of receiver signature in three document dated 06-09-2009, 20-07-2009, 26-07-2009 of
P.W-1 is rank forged signatures and hence, this Hon’ble Court is having ample power under Section 73 of Evidence Act to compare the signatures of
P.W-1 in his Chief and Cross examination with that of Document dated 06- 09-2009, 20-07-2009 and 26-07-2009 and reject the same.
12).It is submitted that two document dated 17-10-2009 respectively does not contain receiver signatures. Moreover said purchase 28
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may be on behalf of P.W-2’s two Daughters or to his Wife and hence, an adverse presumption be drawn in favor of P.W-1 and P.W-2.
13).It is submitted that document dated 19-11-2009 does not contain receiver signature and hence, this document be rejected.
14).It is submitted that document dated 20-11-2009 may be purchased on behalf of P.W-2’s two Daughters or to his Wife name. No presumption be drawn in favor of P.W-2.
15).It is submitted that another two document dated 20-11-2009 and 21-11-2009 respectively does not contain receiver signatures and hence, said document be rejected.
2.POINT NO.7.
Whether any cause of action arose in India and whether this
Hon’ble Court is having territorial jurisdiction to try the C.C.
1.It is submitted that a careful reading of P.W-1 Chief and Cross which reads as follows:
Chief of P.W-1:-
i)“after the marriage I along with Accused No.1 stayed for one week with my in laws at Hyderabad.” ii)“After that we went to America” iii)“We stayed there for one and half year” iv)“Accused Nos. 2 and 3 beat me and necked out of the house in the mid night in America”
v)“I came to India and waited for some time” vi)“Accused never contacted me” vii)“After that I launched report to the Police”
Cross of P.W-1 29
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i)“I have communicated to my Father from U.S.A but not from my Laptop” ii)“I have not lodged any report at U.S.A” 22 (2)CHIEF OF P.W.-2:
i)“after marriage P.W-1 joined the company of Accused No.1 few days she stayed at Kanchanbagh. After that P.W-1 and Accused No.1 went to America. They stayed for 2 years in America. . . .Again I requested Accused Nos. 2 and 3 to go to America and settle the matter. Accused Nos. 2 and 3 went to U.S.A. and thrown out my daughter in the month of November,
CROSS OF P.W.-2: “it is true P.W-1 was beaten at U.S.A she came to India and launched report. I do not remember the date of which P.W- 1 was beaten” “Perused the C.D. . . . . As seen from the Complaint averments all part of A-1 and these incidents taken place in USA and further no instances of such harassment has continued even after Defacto Complainant returned to India from the Petitioners and even it is not during her 10 days immediately after marriage is not free from allegations of dowry harassment. When as per the Complaint averments no harassment took place in India and upon taking the Petitioners who are the senior citizens and that too the Petitioners 2 and 3 is a retired Senior Scientist in defense, it is a fit case where conditional anticipatory bail is granted to them” 22 (4)It is submitted that on perusal of aforesaid Orders it is Clear that
Accused Nos. 2 and 3 have not committed any offences mentioned in
Charge
Sheet either prior to the marriage between P.W-1 and Accused No.1 either in
India or at U.S.A. and hence, this Hon’ble Court or U.S. Hon’ble Court need not
Proceed against Accused Nos. 2 and 3 and this Hon’ble Court does not possess 30
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Any territorial jurisdiction to try Accused Nos. 2 and 3 and no cause of action
Arose against Accused Nos. 2 and 3.
23.
OTHER MISC. ADMISSION OF P.Ws AND THE SAME BE
TREATED AS FALSE, FICTITIOUS AND CREATED ONLY FOR
THEPURPOSE OF CAUSING WRONGFUL LOSS TO THE
ACCUSED NOS. 2AND 3.
Regarding recording of Section 161 Crl.P.C. statement of P.Ws:
1)A careful perusal of written Complaint dated 28-11 2011of
P.W-1 it was received by the Police at 17.30 hours and the L.W-8 registered the same as Crime No. 710 of 20111 at 17.30 Hours and entrusted for
Investigation to P.W-6 on the same day.
2) P.W-6 stated in his cross examination that “it is true that the information received in the police station on 28-11-2011. It reached to the court on 29-11-2011at 10.30 am. The statement of witnesses P.W-1 to 5 and L.W-3 and 4 were recorded on 28-11-2011 at the police station. I do not have idea of about the time taken by me for recording of the statements of the seven witnesses on the same day. As on 28- 11-2011 there are three computers in the police station. I recorded the statements of the witnesses on my personal Laptop. I did not file the certificate showing that my laptop was in working condition on the particular date”
Clear suggestions were given to P.W-6 by the Counsel for
Accused Nos. 2 and 3 which reads as follows:
“It is not true to suggest that the P.W-1 never visited the police station and P.W-2 brought the typed statements in his pen drive and by taking the copy of it I prepared the statements of seven witnesses by copying the mater from the pen drive given by P.W-2”.
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3)A careful perusal of P.W-1 cross examination done by the
Counsel for Accused Nos. 2 and 3 she categorically stated that “I do not remember whether police recorded my 161
Crl.P.C statement on the same day lodging of report”
4).Please see Cross of P.W-4. He says that “I do not remember the exact date of my examination by the police, but police examined me and recorded my statement in the morning hours” 5).Please see cross of P.W-5. He says that “Police recorded my statement in the morning” 6).A careful perusal of font size of P.W-1, P.W-3 and P.W-5 in Section 161 Crl.P.C. are one and the same.
7)A careful perusal of font size of P.W-2, L.W-3 and L.W-4
In Section161 of Crl.P.C. statements are one and the same.
8).A careful perusal of font size of charge sheet and F.I.R are totally different and hence, it is nothing but a created story of P.W-2 in collusionwith L.W-7 and P.W-6 and hence, reject the entire C.C. on simple ground thatComplaint and Section 161 Crl.P.C. statements and charge sheet werecreated onlyFor the purpose of causing wrongful loss to Accused persons byhook or crook.
2.It is submitted that P.W-1 in her Section 161 Crl.P.C statement she stated that “on 10-August, 2010 my husband had sent me from his house to my house categorically demanding for additional dowry in the form of car and a house failing to provide with the same I shall not come back to U.S.A”.
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Whereas please see her Chief examination, she stated that “I was once sent to India by A-1for getting Additional dowry. On that my father gave Rs.2 lakshs cash to me and Rs. 1,50,000/- F.D. I gave Rs. 2 lakhs to my husband”.
Please see her own Section 161 Crl.P.C. statement which does not disclose aforesaid inconsistent please in her Chief and hence, P.W 1 goes on improving her previous statement to cause wrongful loss to
Accused persons.
3.It is submitted that P.W-2 in his Section 161 Crl.P.C.
Statement stated that “My son in law used to harass my daughter both physically and mentally by saying that the dowry given to him is not sufficient and that I had to give a car along with a house in India to him which was agreed by me at the time of marriage”
Whereas please see P.W-2 Chief examination, he stated that “A-1 to A-3 demanded to give car to them and also to transfer the property in the name of Accused No.1”
It is submitted that P.W-2 totally tried to insert the names of
Accused Nos.2 and 3 with that of Section 161 Crl.P.C. statement and trying to see that Accused Nos. 2 and 3 are punished by hook or crook and hence, the
Inconsistent statements of P.W-2 be taken into consideration and an adverse remarks be passed.
4.It is submitted that P.W-3 in his chief examination stated that 33
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“P.W-1 informed to my daughter that the Accused A-1 and his Parents A-2 and A-3 when they were with their son/A-1 at Chicago, they harassed the P.W-1 by beating her and demanding additional dowry of car and gold etc.”
Whereas please see his Section 161 Crl.P.C. Statementwhich
Reads as follows:- “Several times Johar’s daughter made a phone call and informed that her husband and her in laws harassed her physically and mentally for demanding additional dowry”
Please see his Cross examination done by the Counsel for
Accused Nos. 2 and 3, he stated that “All the incidence were known to me through my friend/P.W-2”
Hence, P.W-3 inconsistent please be considered and rejecthis statements and draw an adverse inferences.
24.LEGAL POINTS FOR CONSIDERATION:
1Whether this Hon’ble Court is having territorial jurisdiction to entertain C.C.
1).It is submitted a careful perusal of Ex.P-1 which is P.W-1’s
Complaint, P.W-1 categorically stated that “My Father In Law and Mother In Law came to U.S.A. in the month of October, 2011 and from there onwards the harassment further increased and finally on 20-11-2011 mid night at 12. O Clock i.e., early hours of 21-11-2011, my husband along with his Father and Mother beat me, abuse me in filthy language demanding for additional amounts of dowry in the form of cash, car, flat in India and gold and necked me out of their house i.e., 217, Wild Flowers Street, Deplanes IL 60016, U.S.A.. . .”
2)It is submitted that a careful perusal of Chief of P.W-1 she categorically stated that “My Husband and In Laws constantly harassed me for want of additional dowry and they beat me at America. . . On 34
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20-11-2011 A-2 and A-3 beat me and necked out of the house in the mid night in America”.
3).It is submitted that P.W-2 is none other than Father of P.W-1in his
Chief he categorically stated that “Accused No. 2 and 3 went to U.S.A and thrown out my daughter in the month of November”
4)It is submitted that P.W-1 was cross examined by the Counsel for
Accused Nos. 2 and 3 and the following are admissions of P.W-1 with regard to aforesaid alleged incidents.
“I agree with the contents Ex.P-1” “I have not launched any report at U.S.A.” 5).It is submitted that P.W-2 in his cross examination admitted that “It is true that P.W-1 was beaten at U.S.A, she came to India and launched Complaint” 7).It is submitted that Section 177 and 178 of Crl.P.C. deals with ordinary place of inquiry and trial and place of inquiry or trial. It is further submitted that Section 188 of Crl.P.C. deals with Offences committed outside India.
8).It is submitted that based on above admissions of P.W-1 and
P.W-2 and finding of Learned Presiding Officer it is clear that no alleged offences took place in India and more over it is clear that the learned presiding Officer has categorically stated P.W-1 after reaching Hyderabad never stated that anything about Accused Nos. 2 and 3 were committed the alleged Offences contemplated under Section 498-A IPC or Section 3 and 4 of Dowry Prohibition Act and hence, said Offence is not a continue Offence 35
CC No.139 of 2015 Date: 27.01.2023
and hence, this Hon’ble Court does not possess territorial jurisdiction to entertain C.C. and hence, on this ground alone the C.C. has to be dismissed.
It is further submitted that P.W-1 and P.W-2 only requested
Accused Nos. 2 and 3 to keep P.W-1’s Gold, Silver etc., articles in Accused
Nos. 2 and 3’s Bank Locker and hence, Accused Nos. 2 and 3 kept their
Gold etc., in their Bank Locker. Whereas P.W-1 and P.W-2 only to harass
Accused Nos. 2 and 3 gave a false statements before Police to see that unnecessary Accused Nos. 2 and 3 be punished.
CITATIONS:
12016 (9) S.C.C. page 1 paragraphs 13 to 16. Manoj Kumar Sharma and others
Vs.
State of Chattisgarh and another.
2.2014 (2) A.L.D. (Crl) page 894 paragraphs 3 to 11. SivangalaThandi Deepak and others
Vs.
The State of Andhra Pradesh, represented by its Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, through S.H.O. Tenali Rural P.S and Another.
3.2014 (12) S.C.C. page 362 paragraphs 1 to 8. AmarenduJyoti and others Vs. State of Chattisghar and others.
2.WHETHER P.W.-2 Father of P.W-1 is having sources of income and capacity to pay dowry prior to and subsequent to Marriage between P.W-1 and Accused No.1and whether Accused Nos. 2 and 3 demanded any dowry prior and subsequent to the marriage between P.W-1 and Accused No.1.
Please see paragraph No.19 and contents in Point Nos. 1,2,3 and 5 above for factual position for conclusion.
CITATIONS:
36
CC No.139 of 2015 Date: 27.01.2023
1).2017 (1) A.L.D. (crl) page 579 un numbered paras 9 to 12. SangaSunithaVs. the State of A.P.
2).2014 ((9) S.C.C. page 365 paragraphs 10,11,19& 20. Ramaiah @ Rama Vs.State of Karnataka.
3.Whether suppression of material facts shall vitiate entire proceedings.
P.W-2 cross examination regarding non filing of Income Tax
Returns and especially cross examination of P.W-6 Investigating Officer evidence regarding letter addressed by him to Branch Manager, Andhra
Bank in connection with opening of Bank Locker stood in the name of
Accused Nos. 2 and 3 and handing over of Gold etc., to P.W-1.
It is submitted that these facts shall reveal that P.W-1 and P.W-2 intentionally with ill motive suppressed various material facts and hence, on this ground alone the accused are liable to be acquitted.
CITATION:
1.2016 (1) A.L.D. (Crl) page 667 paragraph No.7 Amit Kumar Yadav and others Vs. State of Telangana, Represented by its Public Prosecutor and another.
4.Non submission of Certificate as contemplated under Section 65-B of Evidence Act, the Documents marked through P.W-1 i.e., Ex.P-2 to
P-4 and the Charge Sheet filed by the P.W-6 be rejected.
CITATION:
12014 (10) S.C.C. page 473 paragraphs 1 to 23. P.V.AnvarVs. P.K.Basheer and others.
5.Whether without examining the author of Documents to prove the contents and signature, can it be marked through a stranger and whether it is presumed that contents and signature of documents is proved.
37
CC No.139 of 2015 Date: 27.01.2023
1)It is submitted that P.W-1 has marked Ex.P-5 which is letter issued by the Postal Department dated 29-10-2014, Ex.P-6 & 7 marked through P.W-1 which are alleged invoices, bills pertains to purchase of gold etc., and Ex.P-9 marked thorough P.W-1 which are alleged credit Card Bills pertain to uncle of P.W-1 who said to have been purchased the alleged Air ticket in favour of P.W-1.
2).It is an admitted fact that Ex.P-5 is letter dated 29-10-2014 issued by a concerned Postal Authority and is not a public document and hence, non-examination of the concerned author of Ex.P-5 document to prove its contents and signature, Ex.P-5 cannot be received in evidence. It is further submitted that mere marking of document shall not be treated that said document is an admission. It is further submitted that admission is different with that of proving a document and hence, on this ground alone
Ex.P-5 document is liable to be rejected.
3).It is submitted that Exs. P-6, 7 and P-9 are bills etc., It is further submitted that without examining the author of Documents it cannot be received in evidence and hence, those are liable be rejected.
CITATION:
2003 (8) S.C.C. page 745 paragraphs 13 to 16. Narbada Devi Gupta Vs. Birendra Kumar Jaiswal and Others.
6.Whether any improvements made by the Prosecution in their
Chief examination contrary to the Complaint, Section 161 Crl.P.C.
Statement shall binds the Hon’ble Court to come to a conclusion to convict any person.
A careful reading of Ex.P-1 Complaint and Section 161 Crl.P.C.
Statements of P.W-1 to P.W-5 with that of their Chief examination, which 38
CC No.139 of 2015 Date: 27.01.2023
shall reveal that they made lot of improvements in their chief before this
Hon’ble Court especially after going through the contents mentioned in
points 1 to 7 above it is clear that P.W-1 to P.W-5 with a mala fide intention and to cause a wrongful loss to Accused Nos. 2 and 3 made several improvements contrary to their earlier statements and hence, on this ground alone the C.C. has to be dismissed against Accused Nos. 2 and 3.
CITATION:
2004 (9) S.C.C. page 431 paragraphs 1 to 15. Ashok Vishnu DevareVs.State of Maharastra.
7.It is an admitted fact that documents marked through D.W-1 is part of original records and it is also a fact that D.W-1 died after marking his documents but due to various reasons D.W-1 was not cross examined.
Hence, the Documents marked through D.W-1 is part of Record and the same can be looked into as secondary evidence and said documents has possess evidential value and same be considered in the interest of justice.
25.Hence, for the reasons stated above it is therefore prayed that this Hon’ble Court may be pleased to acquit the Accused Nos. 2 as otherwise wise Accused Nos. 2 will be put to irreparable loss and injustice.
12.Coming to the evidence of P.W.1, she deposed that, L.ws.2 and 3 are her parents; L.w.4 is her uncle who is now no more; She know L.ws.5 to 7; A1 is her formal Husband. A2 and A3 are parents of Accused No.1; She got married to accused on 08.01.2010 as per Sikh customs; At the time of marriage her parents gave dowry and gold as demanded by A2 and A3; Her parents gave Rs. 35 lakhs of cash, 150 tulas of gold to accused
No. 2 and 3; After marriage she along with accused No.1 stayed for one week with her in laws at Hyderabad; After that they went to America; They stayed there one and half year.
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CC No.139 of 2015 Date: 27.01.2023
She further deposed that her husband and her in-laws have been constantly harassed her for want of additional dowry and they beat her at America; She was subjected to domestic violence; She was once sent to India by A1 for getting additional dowry; On that her father gave Rs.2 Lakhs cash to her and Rs.
1,50,000/- F.D. She gave Rs.2 Lakhs to her husband.
She further deposed that Accused No.1 again started harassing her for want of additional dowry; On 20.11.2011 A2 and
A3 beat her and necked out of the house in the mid night in
America; Accused No.1 to 3 took away all the jewellery and cash from her; Somehow she could contact one of her uncle by name
Mahender Oberai, he rescued her and he himself booked a ticket to her for India; She came to India and waited for some time.
Accused never contacted her; After that she lodged report Ex.P1 to the police.
P.W.2 deposed that, Pw1 is his daughter. Lw3 is his wife.
Lw4 G.S.Johar is his brother who is now no more. He know Lws 5 to 7 and they are his family members. A1 was husband of Pw1.
A2 and A3 are parents of accused No.1. Pw1 got married to accused on 08.01.2010 as per Sikh customs. At the time of marriage and pre-marriage events he gave nearly 100 tulas of gold to A1 to A3 as demanded by them. They also gave gold to daughter and son in law of A2 and A3. They also gave house appliances worth of 7 to 8 lakhs. Before marriage and at the time of marriage they gave nearly 33 lakhs to the accused. A1 to A3 have also demanded to give car to them and also to transfer the property in the name of Accused No.1. After marriage Pw1 joined the company of accused No.1 few days she stayed at Kanchan
Bagh. After that Pw1 and accused No.1 went to America. They stayed for 2 years at America. After one year his daughter came to India for the marriage of his brother’ son. At that time Pw12 requested A2 and A3 to give her jewellery. They have refused to give jewellery. Pw1 asked the jewellery for wearing a marriage.
After marriage Pw1 went to America. Accused No.1 constantly demanded for car and house. On that he requested accused No.2 and 3 to go to U.S.A and talk with accused No.1. His daughter 40
CC No.139 of 2015 Date: 27.01.2023
used to always about the character of Accused No.1. He asked his daughter to get adjusted. In the month of August, 2011 his daughter sent a mail to him in which she stated that accused
No.1 is beating her. Again he requested accused No.2 and 3 to go to U.S.A and settle the matter. Accused 2 and 3 went to U.S.A and thrown out his daughter in the month of November. His daughter only took few cloths along with her. As the cell phone of his daughter was not working, he spoke to his cousine Mahinder singh oberai. He went and picked up his daughter. Maninder
Singh Oberia purchased the tickets to India and gave his daughter money. On intervening night of 21/22 November, 2011 his daughter came to house. He spoke to his daughter. He asked his daughter is there is any chance of further adjustment. On that
Pw1 said that there is no chance of adjustment. After that they lodged report to the police. Police examined and recorded his statement.
8.P.W.3 deposed that, he know Pw1, 2 and Lw3. He know them sincce more than 20 years. He know the accused No 1 to 3. He saw them in Pw1’s marriage. The marriage of Pw1 was performed with accused No.1 in the year 2010. At the time of marriage, parents of Pw1 have given more than 100 tulas of gold to accused on demand. After marriage, Pw1 and the accused A1 left to America and stayed there till 2011. His daughter is the friend of Pw1. Pw1 informed to his daughter that the accused A1 and his parents A2 and A3 when they were with their son/A1 at Chicago, they harassed Pw1 by beating her and demanding additional dowry of car and gold etc., and PW1 was driven off out of her house in the night hours, thus Pw1 went to one of her friend’s house taking shelter and from there, Pw1 suddenly came back to
India. He came to know all these facts through his family friends.
Later, he came to know that Pw1 had lodged a complaint against her husband/ A1 and his family members. Police examined him and recorded his statement.
9.P.W.4 deposed that, he know Pw1, Pw2, so also A1 to A3.
The marriage of Pw1 with A1 had been taken place in the month of January 2010 and it was celebrated for three days. 6th January 41
CC No.139 of 2015 Date: 27.01.2023
was the ring ceremony between the couple and on 7th January there was a family gathering at the accused house and on 8th
January the marriage has taken place in Gurudwara. At the time of marriage, the parents of Pw1 have given 150 tulas of gold and other household articles towards dowry. After their marriage, Pw1 might have left abroad with her husband/ A1. Pw1 and her family members are very close to them since 25 years. In the month of
November 2011, Pw1 was driven out from her in-law’s house by her husband in U.S.A., and with the help of her uncle, she came back to India. He came to know from Pw1 that her husband/A1 and his parents A2 and A3 used to harass her for additional dowry.
Pw1 when she was in U.S.A she called her parents to share the harassment faced by her. During that time, even she informed him about the harassment of her in-laws on telephone.
After she came to India, when he met her, she explained her that their in-laws were harassing for additional dowry, beat her indiscriminately for not bringing sufficient dowry. Police examined him and recorded his statement.
10.PW5 deposed that, he know Pws.1 and 2. He know the accused /A1 and his parents/A2 and A3. Both the complainant family members and the accused family members are close family friends, he know them since many years. The marriage of
Pw1 was performed with A1 on 08.01.2010. At the time of marriage, the parents of Pw1 kept cash and some gold jewellery.
Pw1 is friend of his daughter as well. After marriage, Pw1 and the accused /A1 went to Chicago. Later, through his daughter and through his close common friends, he came to know that the accused /A1 harassed Pw1 for additional dowry and necked out her from the house, when Pw1 was removed from the house, she went to the house of one of the friend of her father/Pw2. Later, she came back to India and lodged a complaint against the accused/A1 to A3 under the section 498-A of IPC for harassing her and demanding additional dowry. Police examined and recorded his statement.
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CC No.139 of 2015 Date: 27.01.2023
11.P.W.6 deposed that, on 28.11.2011, Lw8 received a complaint from Pw1 and registered a case in Crime No. 710/2011 for the offence under section 498-A of I.P.C and Sections 3 and 4 of Dowry Prohibition Act and entrusted the C.D. file to him for further investigation. He received the file, examined and recorded the statements of Pw1 to 5, Lw 3 and 4.
Later, A2 and A3 as per the orders of the Metropolitan Sessions
Judge, L.B.Nagar vide Crl.M.P No. 2190/2011, dated 02.01.2012,
the accused/A2 and A3 surrendered before this Honourable Court.
Since A1 is residing in U.S.A., on 05.01.2012, LOC notice issued.
After completion of entire investigation he filed the charge sheet against A1 to A3 for the offences under section 498-A of IPC and 3 and 4 of DP act. Ex.P10 is the F.I.R.
This Court upon perusal of the entire evidence that was adduced by the prosecution through the evidence of Pws.1 to 6 coupled with the documentary evidence itself, found that the evidence of P.Ws.1 to 3 can certainly be treated as interested evidence, whereas the evidence of Pws.4 and 5 can certainly be treated as hearsay evidence, and the evidence of Investigating
Officer can certainly be treated to be formal evidence. The reason for coming to the conclusion that the evidence of Pws.1 to 3 as interested one, is that their evidence is completely uncorroborated with each other even in speaking about the harassment that was mated out by the accused towards PW1 so also with regard to the aspect of giving dowry and gold and silver ornaments, and their evidence is also contains full of exaggerations with regard to the very presentation of dowry to the accused as well as the very demand of additional dowry by the accused from PW1 and her parents. The evidence of PW4 also is not tallied with the evidence of PW1 coupled with their statements before the police – more particularly, the evidence of
PW5 is completely not tallied with either PW1’s evidence or PW4’s evidence and the cross examination of all the prosecution witnesses is very much helpful to the defence rather than the prosecution,even none of the witnesses evidence is in consonance with the statement that was given before police and 43
CC No.139 of 2015 Date: 27.01.2023
the e-mails sent by PW1 are not placed by her along with her report before police, which leads to suspect their truthfulness and therefore this Court is not inclined to attach much weight to the documents so filed by the prosecution through the petition filed under Section 242(3) Cr.P.C., as they are all the documents which have been filed as an after thought to implicate innocent in a false case foisted by PW1 with the active connivance of police and hence this court is inclined to discard the said documentary evidence along with oral evidence of PW1.
Even as per the own admission made by PW1 that she was subjected for harassment while she was stayed with A1, but she clearly admits that the said harassment was done by the parents of A1 through phones, it is not the case of PW1 that she has reported to USA police about the harassment that was mated out to her by the accused and that too, it is a matter of record that the DVC preferred by her was ended in dismissal for her non- prosecution, which itself disproved the very accusation as levelled against the accused. Even a bare perusal of prime witnesses evidence i.e., PWs.1 to 3, it is very much clear that they are not certain as to exact nature of the harassment that was mated out by the accused towards PW1 and during their respective cross examination, they have clearly admit that they have not witnessed any one of the incidents of harassment – more particularly PW1 only informed to her parents about the very asking the accused about their demand of additional dowry, and PW1 also did not reveal that the accused have been demanding for presentation of car as well as flat, but this particular aspect is a great development and it can be treated as an exaggeration by prosecution witnesses for the purpose of this case and out of their curiosity it was invented by them.
According to the prosecution version, the investigating officer clearly admits that he did not ascertain or produce call data to prove the alleged harassment mated out by all the accused towards PW1, more particularly, the parents of A1 who are no other than A2 and A3. The investigating officer’s evidence is very much helpful to disprove the very accusation as levelled 44
CC No.139 of 2015 Date: 27.01.2023
against the accused, instead of supporting the prosecution case in all respects – more particularly the very harassment of demanding additional dowry by the accused from the parents of
PW1 and the very accusation of accused with regard to harassment also is not proved, through the oral or documentary evidence that was adduced by the prosecution.
The prosecution further fails to prove that the accused are the persons who have committed any sort of domestic violence as alleged by PW1 and none of its speak about the same. The evidence of Pws.4 and 5 is no way helpful to prove that they are having sufficient knowledge even the very presentation of dowry and hence, they have deposed before this Court that they are completely at a bay about the same in their respective evidence, hence the question of accused demanding additional dowry does not arise and this Court has no hesitation to hold that the prosecution is unable to establish the very demand of dowry or
additional dowry by the accused from PW1 and her parents.
The prosecution further also failed to prove that the accused have demanded dowry much prior to the marriage, as admittedly none of its witnesses have deposed that the parents of PW1 gave dowry gold and silver ornaments, on the demand made by the accused to them and further its witnesses have also deposed their respective evidence according to their whims and fancies, as some of them have deposed about the presentation of household articles with description, and according to the marriage performed under sikh customs, list of presentation of dowry and other articles presentation at the time of marriage is not placed before this Court, which is a mandatory compliance of proving the presentation of dowry and hence it is very much clearly known to a prudent man that without reducing into writing the said list, itself tantamounts to disprove the very presentation of dowry and consequentially when the same is not proved, the question of demanding additional dowry by the accused to PW1 and her parents, does not arise. Therefore, this court is inclined to uphold the contentions raised by the learned counsel who has submitted written arguments, while rejecting the argument 45
CC No.139 of 2015 Date: 27.01.2023
advanced by the learned A.P.P., and the decisions so produced and relied upon by him, are quite helpful in disproving the prosecution case. The points so formulated by the defence, are hereby answered by this Court in a positive manner for holding that the prosecution is unable to establish the guilt of the accused beyond all reasonable doubt.
For all the above mentioned reasons, this Court is inclined to hold that the prosecution is unable to establish the guilt of the accused beyond all reasonable doubt.
In the result, the accused are found not guilty for the offence under Section 498A I.P.C., and Sections 3 and 4 of Dowry
Prohibition Act and hence they are accordingly acquitted of the said offences under Section 248(1) Cr.P.C., Their bail bonds shall stand cancelled.
Typed by the Stenographer and corrected and pronounced by me in the Open Court
this the 12 th day of October 2022.
X Addl. Metropolitan
Magistrate,
Cyberabad, Medchal
Appendix of Evidence
Witnesses Examined
For Prosecution
Exhibits Marked for Prosecution
(4)It is further submitted on 06-10-2018 L.W-1/P.W-1 further examined and Ex.P-2 to Ex.P-9 were marked.
1)Ex.P-2 is copy of E-Mail dated 06-12-2009 (subject to objection marked).
2)Ex.P-3 is copy of E-Mail dated 01-08-2011 (subject to objection marked).
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CC No.139 of 2015 Date: 27.01.2023
3)Ex.P-4 is copy of E-Mail dated 22-11-2011 (subject to objection marked)
4)Ex.P-5 is original letter issued by Postal Department dated 29-10- 2014.
5)Ex.P-6 is Certified copy of Air Ticket.
6)Ex.P-7 is certified copy of Bills.
7)Ex.P-8 is certified copy of orders in F.C.O.P.No. 423 of 2014.
8)Ex.P-9 is Original Credit Card Bills-10 sheets.
For DefenceNone
Exhibits Marked for Defence 1).Ex.D-1 is the marriage certificate dated 11-01-2010.
2)Ex.D-2 is marriage Photos (C.D. filed)
3)Ex.D-3 are two receipts dated 02-12-2011 and 06-12-2011 respectively issued by Defacto Complainant admitting receipt of gold etc., after reopening Bank Locker as per requisition issued by the I.O. on 02-12- 2011 (Ex-D-11).
4).Ex.D-4 is orders dated 08-09-2015 passed in D.V.C.No. 3530 of 2012. Ex.D-4 clearly exhibits that said D.V.C. is dismissed due to non- prosecution by the Defacto Complainant herein.
5).Ex.D-5 and D-6 are E-Mails which are addressed between A-1 and P.W-1 which is forwarded by A-1 to Accused Nos. 2 and 3. This mails clearly establishes that Accused No.1 was trying to contact P.W-1 and P.W-1 intentionally failed to give any reply since she already reached Hyderabad with previous conspiracy along with P.W-2 and LW-3 and launched present
Complaint which is Ex.P-1.
6)Ex.D-7 Boarding Pass and Flight Tickets (five in number).
These exhibits clearly establishes that Accused No.1 and P.W-1 travelled to 47
CC No.139 of 2015 Date: 27.01.2023
Nagpur and Bombay immediately after marriage and came back to
Hyderabad.
7).Ex.D-8 is certificate of Vehicle which is owned by Accused
No.3 and the same will establish that Accused Nos. 2 and 3 are well off in
Society and they were having own house and own Car.
8).Ex.D-9 are tax certificates.
9)Ex.D-10 is C.M.R. Gold purchase receipts (10 in numbers).
These exhibits shall establish that Accused Nos. 2 and 3 were having capacity to purchase gold and they gave it to P.W-1. Whereas P.W-1 having taken said Gold etc., simply denied that she does not possess the same which is nothing but cause wrongful loss to Accused.
10)Ex.D-11 is letter dated 02-12-2011 addressed by I.O./P.W-6 to the Branch Manager, Andhra Bank, BDL Campus Branch, Kanchanbagh,
Hyderabad requesting the Branch Manager to open Bank Locker stood in the names of Accused Nos. 2 and 3 in the presence of Defacto Complainant.
This document clearly establishes that P.W-1 and P.W-2 endorsed to effect that they received their items and put their signatures. Whereas when P.W-1 was cross examined she simply to overcome her own wrong simply stated that still some more Gold etc., with Accused Nos. 2 and 3 which is nothing but an after thoughts.
11).Ex.D-12 is Anticipatory Bail orders dated 02-01-2012 passed in
Crl.M.P.No. 2190 of 12 on the file of the Metropolitan Sessions Judge,
Cyberabad, at L.B.Nagar in favour of Accused Nos. 2 and 3.
12.Ex.D-13 is income certificate of Accused No.3. This document clearly establishes that Accused Nos. 2 and 3 were having sources of income and capacity to buy any items.
13.Ex.D-14 is Pension details of Accused No.3. This document clearly establishes that Accused Nos. 2 and 3 were having sources of income and capacity to buy any items that too even after retirement of Accused No.
3.
14.Ex.D-15 is Bank statement of Accounts of Accused No.3 which clearly establishes that Accused No.3 only gave Rs.9,00,000/- (Rupees Nine
Lakhs only) to Accused No.1 to create a fixed deposit in Postal Department but not money given by P.W-2 i.e., Father of P.W-1.
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CC No.139 of 2015 Date: 27.01.2023
Exhibits Marked for Prosecution
Exhibits Marked for Defence
Material Objects marked [
X Addl. Metropolitan Magistrate, Cyberabad, Medchal
CC No.362 of 20161 of 41
IN THE COURT OF THE X ADDITIONAL METROPOLITAN MAGISTRATE,
AT MEDCHAL.
Present: K.Pardha Saradhi Rao, X Addl Metropolitan Magistrate Medchal
Dated this the 30th day of December, 2022
C.C.No.362 of 2016
Between: Thatikonda Raju S/o Late Chittaraiah, Aged 45years, Occ: Business, R/ H.No.1-21-331, Bank Colony, Venkatapuram, Secunderabad.
....Complainant.
AND
Uma Maheswari D/o Late AKC Natarajan. R/o C-111, NE Ext. 5th Cross, Fort Station Road, Thillai Nagar, Trichy – 620018
...Accused.
*** This case is coming up for final hearing before me on this day in the presence of Sri Rama Subramanyam, learned counsel for the complainant and of Sri T.Shiva Kumar, counsel for the accused and upon perusing the material on record and upon hearing the arguments advanced by either side counsel, and the matter having stood over till this day for consideration, this Court delivered the following :
JUDGMENT
1.This is a complaint laid by complainant against accused for offence under Section 138 of Negotiable Instruments Act, (hereinafter referred to as ‘N.I.Act’) seeking to punish accused for her issuing dishonoured cheque
CC No.362 of 20162 of 41
knowing fully well that her bank account has intentionally closed by her, with a view to evade to discharge her borrowed amount from complainant.
2.The averments made in complaint in brief are as follows:
a.Complainant and accused are known to each other since 20 years through complainant’s ex-wife Sukanya, when accused used to stay in Flat
No.32, 3rd floor, Gopal Bhavan, opposite Hyderabad Nursing Home,
Basheerbagh, Hyderabad, and taking into consideration their acquaintance, due to urgent need of money, for accused necessities and to perform her parents 80th birthday at Trichy, in May 2010, she requested complainant for hand loan of Rs.5 lakhs, agreeing to repay it within 3 years.
b.Complainant gave hand loan trusting accused, for which accused herself has issued an undated cheque bearing No.417477, drawn on State
Bank of India, M.J.J.Road, Hyderabad, towards repayment of hand loan.
c.It is further averred that as per accused request, after lapse of 3 years, i.e., in March 2013, complainant went to her house for collection of hand loan amount, and on his verification, he was told that accused has vacated and went to Trichy, later at last, he has traced out Trichy address and wrote a letter requesting her for repayment of hand loan amount, but there was no response from her.
CC No.362 of 20163 of 41
d.Then complainant has presented cheque on 20.2.2015 with his banker, i.e., State Bank of Hyderabad, Venkatapuram Branch, Secunderabad, for collection, but to his utter dismay, it was dishonoured by his banker with an endorsement “account closed” and to that effect he has received cheque return memo dated 21.2.2015.
e.It is further averred that accused has thus failed to keep up her promise towards discharge of legally enforceable debt – subsequently complainant got issued legal notice dated 27.2.2015 to her, and she has received it on 3.3.2015 and issued reply notice dated 14.3.2015 with all false allegations.
f.Inspite of having knowledge and receiving of legal notice, accused has failed to repay hand loan amount and thus she has def rauded complainant with a mala fide intention and caused wrongful loss to him and to have wrongful gain to her.
g.Thus the accused has issued above said dischonoured cheque for dischare of legally enforceable debt, and knowing fully well, she has intentionally closed her account only with a view to cheat and dupe him, for which she is liable to be prosecuted and is liable for punishment according to law for the offence under Section 138 of N.I.Act so also Section 420 of Indian
Penal Code. Hence this complaint.
CC No.362 of 20164 of 41
3.This case was taken on file for offence under Section 138 of N.I.
Act against accused.
4.On her appearance, copies of documents have been supplied to her; she was examined under Section 251 Cr.P.C., she denied complaint contents and pleaded not guilty and claimed to be tried.
5.To prove complaint contents, complainant himself was examined as
PW1 and got marked Exs.P1 to P5 and reported no further evidence and hence his side of evidence is closed.
6.After closure of his side of evidence, accused was examined under
Section 313 Cr.P.C., she denied PW1’s evidence and reported that she has defence evidence and accordingly she was examined as DW1 and got marked
Ex.D1 and reported no further evidence and thus her side of evidence is closed.
7.Heard oral arguments submitted by either side learned counsel, apart from written arguments submitted by defence counsel.
8.Now the point for consideration is whether complainant has established accused guilt for her committing offence punishable under Section 138 of N.I.Act, for her issuing dishonour of cheque knowing fully well that her bank account has closed by her intentionally, with a view to evade to discharge legally enforceable debt contracted by her from PW1?
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9.a.Learned counsel for the complainant very vehemently argued that the evidence of PW1 coupled with the documentary evidence Exs.P1 to P5 clearly established the very existence of legally enforceable debt, to a tune of
Rs.5 lakhs, contracted by DW1 from PW1, for her necessities and also to perform her parents 80th birthday at Trichy.
b.It is further argued that even though accused herself agreeing to repay said sum within a period of 3 years, and in token of her receiving such a huge amount, she has issued one undated cheque bearing No.417477 drawn on State Bank of India, M.J.J.Road, Hyderabad which was dishonoured and her evidence alone is sufficient to prove her guilt for offence under Section 138 of
N.I. Act, as she herself has clearly admitted that she has borrowed amount from
PW1, but she has intentionally deposing false evidence with a view to evade to discharge the legally enforceable debt contracted by her from PW1 and hence she is liable to be prosecuted and thus arguing learned counsel for complainant urged to convict accused by invoking provisions of Section 138 of N.I.Act.
c.Learned counsel for the complainant also argued that complainant has proved his case beyond reasonable doubt, by adducing both oral and documentary evidence i.e., through his oral evidence as PW1 and also through
Exs.P1 to P5 as documentary evidence, which is crystal clear in proving accusation of accused that she was remained to be the person who was having
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financial transaction with him and that complainant has also proved that she had issued cheque in question, towards discharge of her legally enforceable debt or other liability and he has also been proved that cheque was dishonoured, as she herself has intentionally closed her bank account with a view to defraud bona fide complainant.
d.It is further argued that service of legal notice has also been proved and hence accused was liable to make repayment, however, she did not make it within stipulated time as promissed by her, despite service of legal notice and it is also proved that all steps that were taken by complainant within time as provided by law and that she has failed to rebut presumption as provided in law, even though she has adduced both oral and documentary evidence and hence, she may be convicted for offence punishable under Section 138, N.I. Act and thus arguing learned counsel for complainant urged to convict her for offence with which she stood charged.
10. Learned counsel for the accused filed written arguments and the gist of the same run in brief are as follows:
a) The complainant has to fulfill the following essentials for constituing the offence punishable under Section 138 of N.I.Act:
1) A person must have drawn a cheque on account maintained by him in a bank for payment of a certain amount of money to another person out of that account.
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2)Cheque should have been issued for discharge in whole or in part of debt or other liability.
3)That cheque has been presented to bank within a period of 6 months from date on which it is drawn or within period of of its validity whichever is earlier.
4)that cheque is returned by bank unpaid, either because of amount of money standing to credit of account is in insufficient to honour cheque or that it exceeds amount arranged to be paid from account by an agreement made with bank.
5)Payer or holder in due course of cheque makes demand for payment of said amount of money by giving a notice in writing, to drawer of cheque within 15 days of receipt of information by him from bank regarding return of cheque as unpaid.
6)Drawer of such cheque fails to make payment of said amount of money to payee or to holder in due course of cheque, within 15 days of receipt of said notice.
7)The debt or other liability referred to under Section 138 of N.I.Act means of legally enforceable debt or other liability.
11. Though it is the specific case of the complainant that he gave hand loan of Rs.5 lakhs on 7.5.2010 to accused, who promissed that she would repay it within 3 years, for which she has issued undated cheque No.417447 drawn on SBI, MJJ Road, Hyderabad towards repayment of hand loan, and the same was mentioned in legal notice, dated 27.2.2015, and even the same was pleaded by him, basing on which, this case came to be registered, but the accused has issued specific reply notice dated 14.3.2015 through which, she has specifically stated that she was not in India on 7.5.2010, and she was in
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New Zealand on that day, but complainant stated above, that as if the transaction had taken place on 7.5.2010 at his residence i.e., at Venkatapuram, but finally at the time of filing his chief examination affidavit, he has changed his version mentioning that he has lent hand loan on 17.5.2010 (previously stated as its date as 7.5.2010 as a typographical error), but for the first time, in this regard, he has stated that it is typographical error, and even if it is so, he might have corrected it, in both his complaint and in his legal notice, but it was appeared suddenly in his chief examination affidavit, which version of complainant cannot be accepted as if it was done.
12. Though the complainant contended that the cheque in question was issued by accused towards discharge of legally enforceable debt, which was abruptly rebutted by the accused by way of examining himself as DW1 and got marked Ex.D1 passport copy, in which it was clearly show that accused was in New Zealand by 7.5.2010, hence question of happening transaction on 7.5.2010 does not arise and thus the said version of complainant, is proved to be false and on that count, accused is certainly entitled to be acquitted, as complainant has failed to prove the essential ingredients under Section 138 of
N.I.Act, (cheque should have been issued for the discharge of whole or in part of any debt or other liability).
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13.It is further contended that PW1 evidence is having inconsistent statements with regard to subsistence of legally enforceable debt, though he deposed that though he is income tax assesse, he clearly admits that did not file income tax returns and he has failed to file any documentary evidence to prove transaction in this case and as per his own admission in his evidence that he has no acquaintance with the accused, but through his wife only he got acquaintance with accused and hence question of his lending such a huge money to accused without obtaining any paper, is highly improbable to natural circumstances and conduct of human being and in which case, Court has to take judicial note of conduct of parties and thus it is proved that complainant comes to the Court with unclean hands, and thus his conduct is quite contrary to conduct of prudent man and his failure to explain as to why no instrument was executed all though a huge amount was allegedly paid to accused, and hence in this regard, Court has to draw presumption for coming to the conclusion that as no document has been executed and no interest clause has been incorporated for its charging, it is highly unbelievable to say that there is existence of legally enforceable debt muchless any other liability.
14.It is further contended that as complainant has failed to file income tax returns, it can certainly be said that the amount so lent by him to accused, is unaccount for amount, which cannot be termed as it is legally enforceable debt.
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15.It was held in SANJAY MISHRA VS. KANISHKA KAPOOR @
NIKKY, as follows:
when there is categoric admission on complainant’s part that the advanced unaccounted amount not disclosed in income tax returns, it can be said that liability to repay unaccounted cash amount is not legally enforceable liability within the meaning of Explanation to Section 138 of N.I.Act., as such the debt is not recoverable.
16. Hence, it is sufficient to hold that accused was able to rebut the relevant presumption as required to be proved under Section 138 of N.I.Act by eliciting true facts in the cross examination of PW1 and thus when the borrowed amount is not recoverable as legally enforceable debt within the meaning of the said Section, hence, Court can certainly draw presumption that the accused has successfully proved that he has rebutted that presumption.
17. In RANGAPPA VS. SRI MOHAN (2010) 11 SCC 441) the Hon’ble apex court held that the presumption availed under Section 139 of N.I.Act is a rebuttable presumption, which can be rebutted by the accused by raising any sort of defence,
18. Hence the accused in this case has already been examined as
DW1 and got marked Ex.D1 for proving her very absence on the date of alleged transaction in India.
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19.Therefore the question of her presence in this transaction remained to be unproved; consequentially, the very issuance of cheque in question by her does not arise. Therefore, Court can certainly draw presumption for coming to the conclusion that the accused has successfully proved rebuttable presumption, as required to be to be proved under Section 139 of N.I.Act.
20. In view of the law declared by apex court in RANGAPPA’s case and the case in JOHN K.JOHN VS. TOM VARGHESE, the accused in this case could dispel the above said presumption, and when accused dispelled such presumption, the burden of proof would automatically shifts on to the complainant to prove that the cheque was issued by the accused towards discharge of legally enforceable debt.
21. Though the complainant adduced evidence, he has fails to establish his lending amount in question, more so, if at all, he lents such amount, it can certainly be treated as unaccount for money, therefore he has failed to establish Ex.P1 is issued towards discharge of legally enforceable debt, hence the accused is certainly entitled to be acquitted in the presence of rebuttal oral and documentary evidence that was adduced by her and it is therefore crystal clear that the cheque in question was presented by the complainant for the time barred debt (without proving and admitting liability of loan), as such the present case is not maintainable and the present
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complaint/prosecution against the accused is not at all maintainable as it is time barred which was held in 2003(2) ALD (Crl) 707 and in view of the said facts and circumstances of the case on hand, it must be held that the complainant has utterly failed to prove his case and the accused has successfully rebutted the presumption under Section 139 of N.I.Act; hence she is entitled to be acquitted.
22.Learned counsel appearing for the accused further argued that the accused has been residing at New Zealand and hence question of her borrowing amount from the complainant does not arise and the cheque in question was used by the complainant by getting the same from the luggage kept by accused husband in three boxes and the signed cheque has been used by the complainant for the purpose of this case and no transaction took place as alleged by him as on the alleged date of transaction, the accused herself is staying at New Zealand and hence the accused did not commit any offence as alleged by the complainant and the evidence of DW1 and documentary evidence Ex.D1 itself clearly proved the same, and hence the evidence of PW1 and Ex.D1 can be treated as untrustworthy which does not prove the case against the accused, and thus arguing learned counsel for the accused urged that the accused is liable to be acquitted.
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23.Learned counsel for the accused argued that the complainant has failed to prove his case against the accused beyond reasonable doubt; the accused has been falsely implicated in this case through her signed cheque was misused by the complainant; as he does not have any document in writing to show that any such payment was made by him to the accused; the accused has rebutted the presumption by showing the contradictions and shortcomings in the material produced by the complainant and the accused has shown that she did not have legal liability to make repayment to the complainant and as the very contracting payment of debt by PW1 to accused is not proved, the question of the accused repayment of debt does not arise, hence, the accused cannot be convicted for the offence punishable under Section 138 N.I.Act and thus arguing, it is prayed that the accused may be acquitted for the offences with which she stood charged.
24.This Court has heard the rival submissions of the learned counsel of the parties and carefully perused the material available on record.
25.The law as laid down in relation to the Negotiable Instruments Act is discussed in various judgments.
26.It is settled position of law that there is a presumption in favour of the complainant and against the accused.
27.However, the presumption is rebuttable.
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28.Hon'ble Supreme Court of India in Rangappa vs Sri Mohan, (2010) 11 SCC 441 has discussed the law in detail. The Hon'ble Supreme Court has held as under:
"that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability.
As noted in the citation, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested.
However, there can be no doubt that there is an initial presumption which favours the complainant.
Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments.
While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation.
However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong, whose impact is usually confined to the private parties involved in commercial transactions.
In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused cannot be expected to discharge an unduly high standard or proof.
In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden.
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Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139 of N.I.Act, the standard of proof for doing so is that of 'preponderance of probabilities'.
Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or other liability, the prosecution/complainant can fail.
As clarified in the citation, the accused can rely upon the materials submitted by the complainant, in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of her own.
Thus, it has been settled law that there is a presumption in favour of the complainant and against the accused, that the cheque was issued for consideration.
However, the presumption is rebuttable.
The accused can prove that the cheque was not issued for consideration and that the accused did not have any liability to pay the amount.
It has also been held that the accused need not lead evidence in support of defence.
She can prove it on the balance of probabilities by showing the contradictions in the material produced by the complainant.
In the present case on hand, the accused has admitted her signature on the cheque.
It is also admitted that the cheque was drawn on account of the complainant.
It is also proved that the cheque was presented for encashment and that it was dishonored.
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29. ThisCourthasgonethroughtherespective submissions/arguments submitted by either side and considered them.
30.Learned counsel for the accused has also argued that the accused did not fill other particulars of the cheques in question and therefore presumption must be drawn that the accused is not liable to make any payment and that the complainant had misused the cheque.
31. It is no more res integra that the defence that particulars of the cheque were not filled by the accused is no defence in a trial under Section 138
NI Act.
32. The accused is liable for the offence under Section 138 NI Act, even if particulars of the cheques are not filled by the drawer of the cheque, if the liability of the drawer of the cheque / accused is proved as per law.
33. Hon'ble High Court of Delhi in Ravi Chopra vs State And Anr., decided on 13 March, 2008 : (2008) 102 DRJ 147: 2008 SCC OnLine Del 351 has discussed in detail the issue related to the defence that there was no liability as cheque was given in blank.
It has been held that even under the scheme of the NI Act it is possible for the drawer of a cheque to give a blank cheque signed by him to the payee and consent either implicitly or expressly to the said cheque being filled up at a subsequent point in time and presented for payment by the drawee.
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In the present case also, therefore, the defence taken by the accused that the cheque was blank is of no defence to avoid the liability. He has admitted his signatures. Therefore, the question to be decided by the Court is whether there was liability or not.
34. In the present case, the accused has admitted her signature on the cheque. However, the accused has denied her giving any cheque to the complainant in discharge of any legal liability.
35. She has stated that the complainant had taken the cheque from the box which was kept by her husband in complainant’s house, along with her luggage, when the accused left for New Zealand as security and that the cheque was undated.
36.Be that as it may, the first question which requires consideration in the present case is whether the complaint of the complainant is legally maintainable or not.
37.The question is with regard to the meaning to be assigned to the expression 'legally enforceable debt or other liability' as contained in explanation to section 138 of the N.I. Act.
38.Perusal of the testimony of the complainant would show that in his affidavit of evidence, the complainant though did provide date, month or year of advancing loan to the accused, which is not supported by his own complaint
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averments and his legal notice contents and the same was not proved through any documentary evidence to prove the same.
39.Because the complainant has corrected the date of lending loan in his chief examination affidavit is dated 17.5.2015, by showing 7.5.2015 as a typographic error, but the legal notice and complaint contains its date as 7.5.2015.
40.It is pertinent to note that such error in the date cannot be rectified even if complainant sought to file any amendment of the same, as the date itself is crucial for adjudicating this case.
41.He also did not provide the date when the cheque was handed over to him by the accused.
42.In his cross- examination PW1 has stated that the loan was given to the accused in the year 2010.
43.He has also stated that the cheque in question was given to him by the accused in the year 2015.
44.As per the records the cheque was presented for encashment on 11.02.2016 i.e., after more than 5 years of issuing of the cheque and the year of the alleged loan.
45.As per law, limitation period to recover a loan amount is three years.
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46. Therefore, the period to recover the loan amount, even if the contention of complainant is accepted, had expired in the year 2013 maximum.
Thus, on the date of presentation of the cheque in question, the debt had become barred by law of limitation.
47.The question is whether the time barred debt is a legally enforceable debt under section 138 N.I. Act.
48.This issue has been dealt with in Sasseriyil Joseph v. Devassia 2001 CriLJ 24.
49.The Hon'ble High Court of Kerala has held as under :- "The only question that arises for consideration in this appeal is whether the respondent who issued the cheque in question in discharge of a time barred debt is liable under Section 138 of N.I. Act.
In this case, the complainant had admitted that the loan was advanced to the accused in the year 2010, and the cheque was issued in February, 2016.
Thus, by the time the cheque was issued, the debt was barred by limitation since there was no valid acknowledgment of the liability within the period of limitation.
According to the learned counsel for the complaint, the promise made by the accused to repay the time barred debt would come within the purview of Section 25(3) of the Indian Contract Act.
No doubt, the promise to pay a time barred cheque is valid and enforceable, if it is made in writing and signed by the person to be charged therewith.
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But, it is clear from Section 138 of N.I.Act that in order to attract the penal provisions in the bouncing of a cheque in Chapter XVII, it is essential that the dishonoured cheque should have been issued for discharge, wholly or in part, of any debt or other liability of the drawer to the payee.
Explanation to Section 138 defines the expression 'debt or other liability' as a legally enforceable debt or other liability.
Thus, Section 138 of N.I.Act is attracted only if the cheque is issued for the discharge of a legally enforceable debt or other liability.
In this case, admittedly, the cheque in question was issued in discharge of a time barred debt.
It cannot be said that a time barred debt is a legally enforceable debt.
50.In this connection, it is also relevant to note the decision of the
Andhra Pradesh High Court reported in Girdhari Lal Rathi v.
P.T.V.Ramanujachari (1997 (2) Crimes 658).
It has been held in that case that if a cheque is issued for a time barred debt and it is dishonoured, the accused cannot be convicted under Section 138 of N.I. Act, simply on the ground that the debt was not legally recoverable.
51.Similarly, Hon'ble High Court of Delhi, in M/s. Vijay Polymers Pvt.
Ltd. vs M/s. Vinnay Aggarwal, Crl.M.C.1682/2008, decided on 24 April, 2009, has also discussed the law whether a complaint filed under Section 138 of
N.I.Act is maintainable in law, if the same is based upon the dishonour of a
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cheque which was issued in lieu of a debt which was not legally recoverable at the time of issuance of the said cheque. It has been held as under:
"A perusal of the aforesaid provision clearly goes to show that for analyzing the limitation of a civil liability beyond a period of three years, the acknowledgement, if any, must be there before period of limitation is over, which is not the case. "It may also be relevant to take note of the judgment delivered by the Bombay High Court in Smt. Ashwini Satish Bhat Vs. Shri Jeevan Divakar Lolienkar & Another [2000(5) Bom CR 9], wherein also in a similar case when a cheque was dishonoured which issued beyond the period of limitation the appeal filed by the complainant was dismissed. The relevant observations made in this regard in the aforesaid judgment are reproduced hereunder:- "On the other hand, learned Advocate Shri C.A. Ferreira, appearing for the respondent, submitted
before me that the dishonoured cheque in question
was not in respect of a legally enforceable debt and in view of Explanation to section 138 of N.I.Act, the
Magistrate has rightly acquitted the respondent on the
said count as well as on the ground that there was doubt as to whether the amount mentioned in the said cheque was in the handwriting of the respondent as the defence of the respondent is that he had handed over to the appellant a blank cheque. In support of his submission that the dishonoured cheque in question is not in connection with any legally enforceable debt, reliance was placed by him on Girdhari Lal Rathi v. P.T.V. Ramanujachari and another, 1998 Bank J. 127 : 2000 Do Ch. (A.P.)420. He, therefore, submits that there is no case for interference with the acquittal. "The complainant, respondent and one Shankar Prabhudessai had entered into partnership vide
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Partnership Deed Exhibit P.W. 1/D on 24th August 1990.
Hon'ble High Court of Delhi in M/s. Jage Ram
Karan Singh & Anr vs State & Anr, Crl. Rev. P. no. 82/2013, decided on 31 July, 2019, has summarized the law in this regard. It has been held as under: "A bare perusal of the aforesaid provision clearly goes on to show that for analyzing the limitation of a liability beyond a period of three years, the acknowledgment, if any, must be there before the period of limitation is over, which is not the case in hand. "Further, it has been held time and again by the Apex Court as well as by the various High Courts that mere giving of a cheque, without anything more, will not revive a time-barred debt, because cheque has to be given, as contemplated by the Explanation, in discharge of a legally enforceable debt. In this regard, it may be relevant to take note of the order dated 10.9.2001 relied upon by the learned counsel for the respondent No.2 titled Sasseriyil Joseph v. Devassia (supra) wherein, in a similar case, it has been held by the Supreme Court that, a cheque which has been issued by the accused for a due which was barred by limitation, the penal provision under Section 138 of the NI Act is not attracted. "In Vijay Polymers Pvt. Ltd. & Anr. v. Vinnay Aggarwal (supra), relying upon the judgment of the Supreme Court in Sasseriyil Joseph (supra), it has been observed that, cheques issued for a time- barred debt would not fall within the definition of 'legally enforceable debt', which is the essential requirement for a complaint under Section 138 of the NI Act; the extended meaning of debt or liability has been explained in the Explanation to the Section which means a legally enforceable debt or liability. "Useful reference may also be made to the case titled Prajan Kumar Jain v. Ravi Malhotra, 2009 SCC Online Del 3368, wherein, like the case in hand, it has been held by another Coordinate Bench of this Court that,
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an acknowledgment to be encompassed within the ambit of Section 18 of the Limitation Act has to be an acknowledgment in writing as also within the prescribed period of limitation. "....This acknowledgment even as per the complaint was much after the statutory period of three years which is the prescribed period of limitation for the recovery of an outstanding amount. An acknowledgment to be encompassed within the ambit of Section 18 of the Limitation Act has to be an acknowledgment in writing as also within the prescribed period of limitation. These are the twin requirements which have to be fulfilled in order to be a valid acknowledgment under Section 18 of the Limitation Act which is admittedly not so in the instant case. Thus, it has been settled through judicial pronouncements that for a time barred debt, proceedings under section 138, the N.I. Act are not maintainable. Section 138 is attracted only if the cheque is issued for the discharge of a legally enforceable debt or other liability. No doubt, time barred debt would come within the purview of Section 25(3) of the Indian Contract Act. The promise to pay a time barred debt is valid and enforceable, if it is made in writing and signed by the person to be charged therewith. But, it is clear from Section 138 of N.I.Act that in order to attract the penal provisions in the dishonouring of a cheque in Chapter XVII, it is essential that the dishonoured cheque should have been issued in discharge, wholly or in part, of any debt or other liability which is legally enforceable by the drawer to the payee. So, as per the ratio in the above mentioned judgments, if any cheque is issued for a time barred debt, the complaint under section 138 NI Act is not maintainable.
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52.In the present case also admittedly, as per the complainant, the loan was given in the year 2010.
53.Thus, there was no promise/ acknowledgment in writing by the accused to the complainant to pay the time barred debt.
54.The debt itself had become barred by limitation.
55.Hence, the present complaint is not maintainable.
56.Even on merits, the complainant has failed to prove his case. No doubt, there is presumption in favour of the complainant and against the accused, as argued by learned Counsel for the complainant.
57.However, as discussed hereinabove, the said presumption is rebuttable.
58.It is also settled position of law that an accused can rebut the presumption by showing the shortcomings in the material produced by the complainant.
59.The accused can show that the material produced by the complainant is not sufficient to prove his guilt beyond reasonable doubts.
60.It is settled position of law that whenever there are two views possible, the view which favours the innocence of the accused has to be accepted by the Court.
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61.In his affidavit of evidence, he has stated that the accused had issued the cheque to him to discharge his liability.
62.A prudent person would not advance such a heavy loan amount to another person without executing some document to witness the advancement of the loan.
63.The accused cannot be asked by the Court to bring evidence to prove that he had not taken any loan from the complainant.
64.No such negative evidence is possible to be produced.
65.There is one more aspect worth noting.
66.Section 269- SS of the Income Tax Act provides, inter-alia, that no person shall take or accept from any other person any loan or deposit or any specified sum, otherwise than by an account payee cheque or account payee bank draft or use of electronic clearing system through a bank account, if the amount of such loan or deposit or specified sum or the aggregate amount of such loan, deposit and specified sum is twenty thousand rupees or more.
67.In the absence of material to prove his guilt beyond reasonable doubts, the accused cannot be convicted for the offence punishable under the
Income Tax Act as abovesaid.
68.Hence, she can also not be convicted for an offence punishable under Section 138, the NI Act.
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69.In the light of discussion herein above, this Court is of the considered opinion that the complaint is based upon a time barred debt and therefore it is not maintainable.
70.The complainant has also failed to prove his case beyond reasonable doubt.
71.The accused is therefore entitled to be acquitted.
72.Section 138 of N.I. Act provides that a drawer of a cheque is deemed to have committed the offence if the following ingredients are fulfilled:
(i) A cheque drawn for the payment of any amount of money to another person;
(ii) The cheque is drawn for the discharge of the ‘whole or part’ of any debt or other liability. ‘Debt or other liability’ means legally enforceable debt or other liability; and
(iii) The cheque is returned by the bank unpaid because of insufficient funds.
73.However, unless the stipulations in the proviso are fulfilled, the offence is not deemed to be committed.
The conditions in the proviso are as follows:
(i) The cheque must be presented in the bank within six months from the date on which it was drawn or within the period of its validity;
(ii) The holder of the cheque must make a demand for the payment of the ‘said amount of money’ by giving a notice in writing to the drawer of the cheque
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within thirty days from the receipt of the notice from the bank that the cheque was returned dishonoured; and
(iii) The holder of the cheque fails to make the payment of the ‘said amount of money’ within fifteen days from the receipt of the notice.
74.The primary contention of the first respondent is that the offence under Section 138 was not committed since the amount that was payable to the appellant, as on the date the cheque was presented for encashment, was less than the amount that was represented in the cheque.
75.The question before this Court is whether Section 138 of the Act would still be attracted when the drawer of the cheque makes a part payment towards the debt or liability after the cheque is drawn but before the cheque is encashed, for the dishonour of the cheque which represents the full sum.
76.It must be noted that when a part-payment is made after the issuance of a post-dated cheque, the legally enforceable debt at the time of encashment is less than the sum represented in the cheque. A part-payment or a full payment may have been made between the date when the debt has accrued to the date when the cheque is sought to be encashed.
77.Therefore, there cannot be a hard and fast rule that a cheque which is issued as security can never be presented by the drawee of the cheque.
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78.If such is the understanding a cheque would also be reduced to an ‘on demand promissory note’ and in all circumstances, it would only be a civil litigation to recover the amount, which is not the intention of the statute.
79.When a cheque is issued even though as ‘security’ the consequence flowing therefrom is also known to the drawer of the cheque and in the circumstance stated above if the cheque is presented and dishonoured, the holder of the cheque/drawee would have the option of initiating the civil proceedings for recovery or the criminal proceedings for punishment in the fact situation, but in any event, it is not for the drawer of the cheque to dictate terms with regard to the nature of litigation.”
80.Based on the above analysis of precedent, the following principles emerge:
(i) Where the borrower agrees to repay the loan within a specified timeline and issues a cheque for security but defaults in repaying the loan within the timeline, the cheque matures for presentation. When the cheque is sought to be encashed by the debtor and is dishonoured, Section 138 of the Act will be attracted;
(ii) However, the cardinal rule when a cheque is issued for security is that between the date on which the cheque is drawn to the date on which the cheque matures, the loan could be repaid through any other mode.
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81.It is only where the loan is not repaid through any other mode within the due date that the cheque would mature for presentation; and
(iii) If the loan has been discharged before the due date or if there is an ‘altered situation’, then the cheque shall not be presented for encashment.
82.In Sunil Todi v. State of Gujarat, a two judge Bench of this Court expounded the meaning of the phrase ‘debt or other liability’.
It was observed that the phrase takes within its meaning a ‘sum of money promised to be paid on a future day by reason of a present obligation’.
The court observed that a post-dated cheque issued after the debt was incurred would be covered within the meaning of ‘debt’.
The court held that Section 138 would also include cases where the debt is incurred after the cheque is drawn, but before it is presented for encashment.
In view of the discussion above, we summarise our findings below:
(i) For the commission of an offence under Section 138, the cheque that is dishonoured must represent a legally enforceable debt on the date of maturity or presentation;
(ii) If the drawer of the cheque pays a part or whole of the sum between the period when the cheque is drawn and when it is encashed upon maturity, then the legally enforceable debt on the date of maturity would not be the sum represented on the cheque;
(iii) When a part or whole of the sum represented on the cheque is paid by the drawer of the cheque, it must be
CC No.362 of 201630 of 41
endorsed on the cheque as prescribed in Section 56 of the Act.
The cheque endorsed with the payment made may be used to negotiate the balance, if any.
If the cheque that is endorsed is dishonoured when it is sought to be encashed upon maturity, then the offence under Section 138 will stand attracted; 83.a.Coming to the evidence of PW1, his chief affidavit is completely verbatim to that of his complaint averments.
b.During the course of cross examination, PW1 deposed that though he is B.Sc., LL.B., graduate, he is into real estate business and doing the same business in Venkatapuram, by earning monthly income of Rs.70,000/- per month and thus his annual income comes around Rs.8.5 lakhs. He further admits that though he is having bank account, he did not file bank statement for the month of May 2010.
c.He further admits that he is an income tax assessee for the last 20 years and he is filing his income tax returns.
d.He further admits that the amount of Rs.5 lakhs which he lent to accused was from his personal savings and from profits derived out of his real estate business and he has disclosed his profits in his income tax returns filed in the year 2010.
CC No.362 of 201631 of 41
e.He further clearly admits that he has paid that amount in his house at Venkatapuram.
f.He abruptly denied that he did not mention in his complaint that the alleged amount has been handed over to accused by him on 7.5.2010 at his house.
g.But, he clearly admitted that in his legal notice ExP3 the date of transaction was noted as 7.5.2010, which was a typographical error, but it was on 17.5.2010 and the same was rectified by him while he has filed his chief affidavit.
h.He denied in this regard, that he has correct date as 17.5.2010, from that of 7.5.2010, after coming to know about the accused is in New
Zealand on 7.5.2010, but he clearly admitted that the date of transaction is different in his complaint as well as in his chief affidavit.
i.He further clearly admitted that though he has received reply notice
Ex.P5, he did not sent any reply to it.
j.Pw1 clearly admitted in his further cross examination, that he did not enter into any agreement with the accused prior to alleged transaction, as he does not know that he has to enter into an agreement while dealing wih this type of transactions with regard to higher amounts.
CC No.362 of 201632 of 41
k.PW1 further deposed that he has received Ex.P1 cheque from accused at his residence and the accused has issued it as undated, but he himself wrote the date on cheque while he has presented the cheque.
l.He has denied that he did not mention the place either in his complaint, legal notice or in his chief affidavit that where he has received Ex.P1 cheque from the accused and that the operative portion of Ex.P1 cheque i.e., name and amount is not in accused handwriting and that the handwritings therein are written in same ink.
m.Pw1 clearly admits that he did not meet the accused personally from the date of alleged transaction till the filing of this case in this court and he further admits that except his oral evidence, he did not possess any documentary proof pertaining to the alleged transaction and to show that he lent Rs.5 lakhs to the accused and that his ex wife and accused are friends and in the year 2012, his ex wife filed a dowry harassment case against him.
n.He further admits that he is having an e-mail I.D.He further admits that before filing this complaint against the accused, he had a conversation with her through e-mails and in that conversation, he never disussed about this case and there was no conversation pertaining to this alleged transaction and the present complaint.
CC No.362 of 201633 of 41
o.He further clearly admits that he did not lent any amount to accused on 7.5.2010, but it was on 17.5.2010.
p.He clearly denied that whenever accused go to foreign, she would hand over all valuable things and documents to his ex-wife, who has filed a recovery of articles petitiion against him.
q.He finally denied that on 7.5.2012, the accused was in New
Zealand and there was no transaction between them and he did not lent any amount to the accused and in repayment of amount, the accused never issued a cheque of Rs.5 lakhs in his favour, he foisted the case against the accused and deposing false.
r.For proving the complaint averments and also for proving the very accusation as levelled the accused for constituting the offence under Section 138 of Negotiabe Instruments Act, PW1 has placed heavy reliance upon Exs.P1 cheque, P2 cheque return memo, P3 office copy of notice, P4 postal acknowledgement, P5 reply notice.
84.To attack the evidence of P.W.1 and also to disprove the case of the complainant, accused herself has examined as DW1 and she has deposed her evidence as rebuttal one in the following lines.
CC No.362 of 201634 of 41
85.a.DW1 deposed that she know PW1 as he is ex-husband of her friend Sukanya, through whom she know him, when Sukanya resided in
Venkatapuram in the year 2010.
b.She further deposed that she is a permanent resident of New Zealand and that she has frequently travelled to India, from New Zealand to see her old parents.
c.For proving the said fact, she has produced Ex.D1 – attested copy of her passport consisting of 10 pages, containing VISA copy, emigration stamp of her departure and arrival to India as well as New Zealand.
d.She further deposed that her husband in the year 2005, before he leaves for New Zealand, he has packed DW.1’s belongings in three boxes and handed over them to her friend Sukanya.
e. Her evidence further reveal that, thereafter she came to know that her cheque book was in that box, in which there was one signed cheque and P.W.1 being ex-husband of her friend, misused the cheque and filed this false complaint against her.
f.It is her further evidence that she came to know about this, when she has received legal notice from P.W.1 on 14-03-2015 and thus P.W.1 foisted this false case against her, alleging that D.W.1 has borrowed Rs. 5,00,000/- from him on 07-05-2010, on which date D.W.1 was in New Zealand and she went to
CC No.362 of 201635 of 41
New Zealand on 23-08-2009 and returned to India on 15-05-2010 and hence her borrowing above said amount from P.W.1 is utterly false. She further deposed that she is permanent resident of New Zealand and in support of her contentions, she has placed her passport copy which show her departure and arrival about details of her trip to India.
g.She further deposed that she did not file any criminal complaint or police complaint against P.W.1 for misusing her cheque after receiving legal notice.
h.On confrontation of Exhibit P.6 Shathabhishekam invitation, D.W.1 admitted her writing on it while DW1 writes P.W.1’s name on it, which is in her hand writing. She further admits that signature on Ex. P.1 is that of herself.
But the witness added that it was given to her husband and it was unexpectedly went with luggage boxes.
i.Further D.W.1 admits that she does not remember as to how many signed cheques were given to her husband way back in the year 2005.
j. She further deposed that she left for New Zealand in the year 1999; thereafter she regularly come to India, and during that time she gave only one signed cheque to her husband as per her knowedge. But she does not remember as to the exact year of handing over signed cheque to her husband.
CC No.362 of 201636 of 41
k. She further deposed that she has received e-mails from P.W.1 in unparliamentary language and she has handed over copies of those e-mails to her counsel.
l.She denied that the allegations made in this case, reply legal notice is to mislead the Court and that she futher denied on 17-05-2010 when she went to
P.W.1’s house to give an invitation, at which time D.W.1 requested P.W.1 to arrange Rs 5,00,000/- and PW1 by accepting her request, P.W.1 arranged the same, at the same time, to D.W.1 and D.W.1 filled all the columns of cheque except the date, and issued the same to P.W.1.
m.She denied that without making attempt to collect the luggage from P.W.1 under the false assumption, D.W.1 blaming P.W.1 with an assumption that he might have opened the boxes and misused cheque, and thus D.W.1 misleading court.
n.D.W.1 finally denied that apart from denying the dishonour of cheque,
D.W.1 included other false allegations by bringing P.W.1’s personal life into this case. D.W.1 finally added that she is no way concerned with P.W.1’s personal life
84.The entire complainant’s story is not at all believable in the presence of rebuttal evidence both oral and documentary evidence that was produced by the accused; more particularly, the complainant has failed to prove
CC No.362 of 201637 of 41
the very existence of legally enforceable debt in between himself and the accused so also any other debt.
85.The accused has discharged his burden in producing the rebuttal evidence whereas the complainant has not discharged his burden in proving the very existence of legally enforceable debt or other liability. The complainant has also failed to prove that the transaction was happened on 17.5.2010, but not 7.5.2010 and even if the transaction has been taken into consideration, the debt itself can certainly be treated to be a time barred debt, which cannot be recoverable. Admittedly, though the transaction took place in the year 2010, the complainant has presented cheque in the year 2015, i.e., nearly after 2 years of limitation period, and he ought to have been filed this complainant at the best in the year 2013; but it was not done so. Hence, this Court has no other option except to hold that this complaint is not at all maintainable as it is filed beyond the limitation period. Further the debt in this case can certainly be treated as time barred debt, which cannot be recoverable after limitation period. There is no existence of legally enforceable debt in between the complainant and accused even by the date of presentation of cheque in question, but the complainant has filed this complaint with a belated stage and hence his complaint is liable to be thrown out.
CC No.362 of 201638 of 41
86.The complainant further admits in his evidence that he has not personally met the accused, but he known her through his wife only and thus he has no prior acquaintance much prior to the transaction and the accused has successfully proved about her non presence as on the date of Ex.P1 through the documentary evidence Ex.D1 – passport copy, which clearly evidenced that the accused is not present on the date of transaction in this case.
87.The complainant has shown the date of transaction as 17.5.2010 straight away in his chief examination affidavit, all of a sudden, even though he has mentioned the said transaction had been taken place on 7.5.2010 and even by the date of his issuing legal notice also he has not realised that the transaction date is 17.5.2010, but not 7.5.2010, but he simply stated that it is a typographical error in the date portion and the said correction in the date portion is not curable one in the presence of legal notice and complaint contents.
88.PW1 further admits in one breadth that he has no personal acquaintance with accused, but in another breadth he has stated that he has given the amount to the accused at his house and the said discrepancy is not at all explained by the complainant by way of producing either oral or documentary evidence.
89.DW1 has clearly admits that she is a permanent resident of New
Zealand, but she used to visit India now and then to see her old parents.
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Further she admits that by the date of Ex.P1 he was at New Zealand and Ex.D1 is the document which proved his arrival and departure of New Zealand and
India and hence according to her version as DW1 and also documentary evidence Ex.D1, it is clearly proved that the accused is not present in India by the date of Ex.P1 and she was at New Zealand, but the complainant changed the transaction date from that of 7.5.2010 to 17.5.2010 for his convenience, after issuance of reply notice given by the accused to him. The complainant has not initiate any steps to get the transaction date amended much prior to his entering into making his evidence, but to suit his convenience he has noted transaction date as 17.5.2010 instead of 7.5.2010 as a typographical error in his chief examination affidavit, which cannot be permissible under law.
90.Even assuming for the sake of arguments that the transaction date is 17.5.2010, the same can be treated as time barred transaction, as admittedly, the complainant has filed this complaint beyond the limitation period and hence the transaction covered by Ex.P1 can itself be treated as a time barred debt, which cannot be recoverable after the limitation period and hence the complainant has no word to say that the complaint is maintainable.
91.The decisions relied upon by the learned counsel for the accused are squarely applicable to the facts and circumstances of the case on hand, in proving that the transaction covered under Ex.P1 is a time barred debt which
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cannot be recoverable and further in proving that there is no existence of legally enforceable debt in between himself and the accused and hence his complaint can certainly be treated as not maintainable as it is filed beyond limitation period.
92.For all the above mentioned reasons, this Court is left with no other option except to answer the point in favour of the accused and against the complaint holding that the accused is not liable for punishment for the offence under Section 138 of N.I.Act, as the complainant has utterly failed to prove the essential ingredients in proving the guilt of the accused for the offence under
Section 138 of N.I.Act, in the presence of rebuttal evidence that was adduced by the accused by way rebuttal presumtpion as required to be proved by the accused.
93.In the result, the accused is found not guilty for the offence under
Section 138 of N.I.Act and hence he is acquitted of the said offence under
Section 255(1) Cr.P.C., His bail bonds shall stand cancelled.
Typed to my dictation, computerised by steno, corrected and
pronounced by me in open court, this the 30 th day of December 2022.
X ADDITIONAL METROPOLITAN
MAGISTRATE, MEDCHAL
CC No.362 of 201641 of 41
APPENDIX OF EVIDENCEA
WITNESSES EXAMINED
FOR COMPLAINANT FOR ACCUSED
PW1 : Thatikonda RajuDW1: Uma Maheswari
DOCUMENTS MARKED
FOR COMPLAIANANT:
Ex.P1 Cheque Ex.P2 Cheque return memo Ex.P3 Legal notice Ex.P4 Postal acknowledgement Ex,P5 Relpy notice Ex.P6 Shatabhishekam invitation
FOR ACCUSED:
Ex.D1 passport copy
X ADDITIONAL METROPOLITAN
MAGISTRATE, MEDCHAL
CC No.362 of 201642 of 41
30.12.2022
Judgment pronounced vide separate typedone.
In the result, the accused is found not guilty for the offence under Section 138 of N.I.Act and hence he is acquitted of the said offence under Section 255(1)
Cr.P.C., His bail bonds shall stand cancelled.
1
CC No.1983 of 2021 Date: 2.1.2023
IN THE COURT OF III ADDL. JUNIOR CIVIL JUDGE – CUM
X ADDL METROPOLITAN MAGISTRATE,
CYBERABAD AT : MEDCHAL
Present: Sri. K.Pardha Saradhi Rao X Addl. Metropolitan Magistrate Cyberabad, at Medchal
Dated this the 2 nd day of January, 2023
CC No.1983 of 2021
Between:- The State through Sub Inspector of Police Jawahar Nagar P.S.
......Complainant
AND Kothojju Sandeep Chary @ Sandeep S/o K.Narsimha Chary, Aged 21 years, Occ: Processing Associate in Genpac at Uppal/ Cellphone repairing R/o H.No. 13-13/1 Shivaji Nagar Colony Balaji Nagar, Medchal District N/o Mothukur Village, Athmakur Mandal, Nalgonda District. ……Accused
This case came up before me for final hearing and disposal in the presence of A.P.P for the State and Sri G.Gopal, Advocates for the Accused and having stood over for consideration till this day this court delivered the following:-
J U D G M E N T
1. The Sub Inspector of Police, P.S.Jawaharnagar, filed charge sheet against the accused in Cr.No.360/2021 for the offences under sections 392 of IPC against accused.
2. Brief averments in the charge sheet are as follows:
a) On 7.5.2021 LW-1/ Kasturi Palli Venkatesh lodged a report stating that on 5.5.2021 his mother-in- law Minapurma Sujatha came to complainant’shouse to see her daughter Sukanya as her health was not good. On 7.5.2021 complainants mother Balamani and his mother-in-law Sujatha went for blood test at Balajinagar and at around 1145 hours they returned to home by walk and when they reached near complainant’s house at Mohan Rao Colony, an unknown person came from backside and snatched gold Mangalasutra Chian ( weighs approximately 2.5 ) tulas from Sujatha’s neck and fled away on scooty.
2
CC No.1983 of 2021 Date: 2.1.2023
(b) Basing on the report LW-12/K.Pandu Ranga Reddy / Detective inspector of police incharge officer Jawahar Nagar PS registered a case in Cr.No.
360/2021 for the offence under section 392 of IPC. During the course of investigation he recorded the statement of defacto complainant so also witness, visited scene of offence, conducted scene observation panchanama , drawn rough sketch of the scene in crime detail form (CDF). Later handed over the case file to
LW-13/ M.Madhu Kumar, I.O. for further investigation who collected CC footages at near Bajrang Nagar colony with the help of technician LW-11 and deployed the staff with CC footages to trace out the accused persons. On 18.6.2021 at about 0800 hours apprehended the accused, on interrogation he confessed to have committed this offence. After completion of investigation he filed charge sheet.
3. This case was taken on file for the offence under section 392 of IPC and against accused.
4.On appearance of the accused before the court, copies of documents upon which the prosecution proposed to be relied upon, were furnished to them as required U/sec.207 of Cr.P.C.
5.The accused was examined U/sec.239 Cr.P.C., and charges framed for the offence under section 392 of IPC against accused was read over and explained to him in vernacular language to which he pleaded not guilty and claimed to be tried.
6.To prove its case, the prosecution examined witnesses. PW-1 and
PW-6 and got marked Ex.P1 to P3 on behalf of the prosecution. The learned APP has givenup the evidence of remaining witnesses.
7.After closure of prosecution evidence, the accused is examined
U/Sec.313 Cr.P.C in respect of incriminating material appearing against him in the version of prosecution witnesses and he reported no defence. No witnesses are examined and no documents are marked on behalf of the accused.
8.Heard both sides and perused the record.
9.Now the point of determination is :
3
CC No.1983 of 2021 Date: 2.1.2023
Whether the Prosecution proved the guilt of accused for the offence
U/Sec.392 of IPC beyond all reasonable doubt?
POINT:
10.Learned APP very vehemently argued that the evidence let in by prosecution both oral and documentary is sufficient to connect the accused with the offence with which he stood charged – more particularly, the evidence of
Investigating Officer alone is sufficient to convict the accused, and thus arguing learned A.P.P.has strongly stressed for convicting the accused.
11.On the other hand, learned counsel for the accused very vehemently argued that the evidence so adduced by the prosecution itself is not at all sufficient to convict the accused, as none of the prosecution speak about the very accusation as levelled against the accused and about their witnessing the accused while he is committing the offence with which he stood charged and further there is no independent or corroborative evidence to speak about the prosecution case and hence the accused cannot be convicted and thus arguing learned counsel for the accused urged to acquit the accused.
12.PW-1 deposed that on 07.05.2021, at about 10.00 a.m., his mother /
LW-3 and mother- in-law / PW-2 went to hospital to give blood samples at Lions
Club Diagnostic centre and while returning from the diagnostic centre at about 11.00 to 1130 a.m., on the way, some unknown offender came from backside and snatched away gold pusthelathadu from PW-2's neck and fled away from the spot.
The gold chain is about 2 ½ tulas. At the time of incident, he was present at his house. PW-2 informed him about the incident. On the same day, he went to the police station and lodged the report. Ex. P-1 is the report.
4
CC No.1983 of 2021 Date: 2.1.2023
13.PW-3 Kavali Nagaraju, panch for confession deposed that on 18.06.2021, at about 9.30 a.m., on the instructions of M.R.O., along with LW-7 went to Jawahar Nagar police station,the S.I. of Police informed that one Sandeep
Chary is involved in chain snatching offence, the S.I. requested us to cause enquiry with Sandeep Chary who was present in the police station at that time. On his enquiry with Sandeep Chary, he confessed before him that he had committed chain snatching offence in 4-5 areas in Jawahar Nagar, Balaji Nagar, Vigneshwara
Colony, Geetanjali School, C.P.I. Colony. He further confessed that he used his bike while committing the offences, he further confessed that he had stolen 3 rold gold chains and two gold chains by snatching. He had thrown the rold gold chains at Malkaram Cheruvu and he pledged the two gold chains in one bank at R.P.
Road, Secunderabad. Accused/ Sandeep Chary removed two gold chains and one pustelu from his pocket and shown to him and the same was seized by the S.I. of
Police in his presence under the cover of panchanama and obtained his signature on it. Himself and LW-7 signed on the panchanama. Ex. P-2 is the confession and seizure panchanama. The he identified the accused who is standing in the dock of the court hall. Ex. P-2 is the scene of offence panchanama. During cross examination nothing is elicited from the witness which connect the accused with this crime. He deposed that when he went to police station, he did not see any of the gold items either on the table or in surrounding area in the police station.
14.PW-2 M. Sujatha, victim deposed that On 05.05.2021, she went to
PW-1's house and on 07.05.2021 at about 10.00 a.m., herself and LW-3 went to hospital to give blood samples at Lions Club Diagnostic centre and while returning from the diagnostic centre at about 11.00 to 1130 a.m., on the way, some unknown offender came from my backside and snatched away my gold pusthelathadu and fled away from the spot. The gold chain is about 2 ½ tulas. They came to house and informed to PW-1. On the same day. PW-1 went to the police station and 5
CC No.1983 of 2021 Date: 2.1.2023
lodged the report. Police examined me and recorded my statement. She saw the offender while snatching her chain and she can identify him, if seen once again.
The witness identified the accused who is standing in the dock of the court hall.
Police did not recover the chain. During cross examination she deposed that that she did disclose the physical features of the offender at the time of recording of her statement. she saw the side face of the offender. Earlier, she saw the accused person in the police station. She denied to the suggestion that she could be able to identify the accused with the help of the police and deposing false at the instance of police.
15.PW-4 K. Balamani, eye witness to the incident, deposed that at about 10 months back, along with PW-2 went to hospital for regular check-up and while returning from the hospital, one unknown person came from my behind and snatched gold pusthelathadu from PW-2's neck and fled away from the spot on a scooty. she cannot identify the said person. During cross examination she deposed she denied to the suggestion that no such incident has been taken place, no person snatched the gold pusthelathadu from the neck of PW-2, as a complainant is his son, to support his case, she is deposing false.
16.PW-5 K.satyanarayana, deposed that he have taken out the photographs and collected CCTV footage being a technician in CCTV footage and to that effect gave one certificate to the effect that he have done the job of collecting CCTV footage pertains to this case as requested by police. Today he did not brought C.D. as it is lying with police station . During cross examination he deposed that he do not have any official authorization to collect the CCTV footage either from State Government or from local bodies like Municipality. He do not possess any license in this regard. He did not receive any written requisition from police to collect CCTV footage, and he do not know contents therein. He denied to 6
CC No.1983 of 2021 Date: 2.1.2023
the suggestion that he is deposing false at the behest of police without taking out or collecting CCTV footage, only for the purpose of this case with a view to implicate innocent accused in this false case with a view to help police who have foisted the case against the accused for the purpose of the department statistics.
17.PW-6 Madhu Kumar, IO deposed that on 7.5.2021 at 1400 hours
LW-12 received complaint from PW-1, registered it as FIR in Cr.No.360/21 U/sec 392 IPC Ex.P3 is FIR. Later LW-12 handed over CD file to him for further investigation. During the course of investigation, he recorded the statement of witnesses, visited scene of offence, drawn rough sketch, conducted scene observation panchanama, check CCTV footage of alleged scene of offence. On 18.6.2021arrested the accused near TVS showroom Balajinagar, got recorded the confession panchanama of accused. Accused informed that as stolen gold is a rold gold he has thrown away it in to Malkaram cheruvu , hence property could not be recovered in this case. During cross examination he admitted that complaint does not contain specific description of stolen property. He has not collected any receipt from PW-1 to prove that stolen property belongs to her. The distance between police station and scene of offence place is 2 kilometers which is situated in a busy locality. He did not secure the presence of vicinity people to act as panchas. He also admited that he did not examined local people and he did not enquire as to who is owner of vehicle through which accused alleged to have escaped after commissioner of offence. He denied to the suggestion that the other witnesses examined are not close relatives of Pw-1 and certainly they are hand in glove with
Pw-1 and hence he failed toe examined vicinity people. He admitted that he did not obtained official stamp or signature from concerned authorized institution or persons, for proving CCTV footage and that he did not seized any inward number of certificate and other particulars. CD or pen drive have not been produced before this court. He has no personal knowledge about LW-12 investigation. He has not 7
CC No.1983 of 2021 Date: 2.1.2023
examined any witnesses or recorded their statements. He denied to the suggestion that though he has no personal knowledge about the case facts and he is deposing false evidence for this case purpose and they have conducted table investigation for statistical purpose and accused is nothing to do with this case.
18.It is a matter of record that investigating officer alone is remained on record, who speak about his conduct of investigation, by examining prosecution witnesses and about his entire investigation part which is his bounden duty as and when any offence that was happened and during the course of cross examination, investigating officer has clearly admitted that no independent witness was examined by him and there is no eye witness to speak about the very commission of offence by the accused on the date of offence and the other evidence so adduced by the prosecution is not at all sufficient to base conviction as against the accused and hence this Court is only inclined to record finding of acquittal as against the accused, as the prosecution itself is unable to establish the very accusation of the accused as levelled against him for the offence with which he stood charged.
19.IN THE RESULT: The accused is found not guilty for the offence under Section 392 of IPC. Accordingly accused is acquitted of the said offences
U/sec.248(1) of Cr.P.C. The bonds and bail bonds of the accused shall stand cancelled U/sec. 437-A of Cr.P.C.
Typed to my dictation by the Stenographer, corrected and pronounced by me in the Open Court this the 2 nd day of January, 2023.
X Addl. Metropolitan Magistrate, Cyberabad, Medchal
Appendix of Evidence
Witnesses Examined
For Prosecution
Pw.1 K.Venkatesh/complainant Pw.2 Sujatha/victim Pw.3 Kavali Nagaraju/panch for confession Pw.4 K.Balamani/ eye witness 8
CC No.1983 of 2021 Date: 2.1.2023
Pw.5 K.Chandra Shekar/ Pw.6 M.Madhu Kumar/IO
For DefenceNone
Exhibits Marked for Prosecution
Ex.P1 Report Ex.P2 Confession and seizure panchanama Ex.P3 FIR
Exhibits Marked for Defence Nil
Material Objects marked -Nil-
X Addl. Metropolitan Magistrate, Cyberabad, Medchal
Order Record 3 total
| Case No. | Parties | Date | Type | Outcome |
|---|---|---|---|---|
| CC/200139/2015 | alwal vs BAMBAH AVNIT SINGH | 27 Jan 2023 | Judgement | Acquitted |
| CC/1983/2021 | Jawahar Nagar - Palli Venkatesh vs Vskathoju Sandeep | 02 Jan 2023 | Judgement | Acquitted |
| CC/200362/2016 | THATIKONDA RAJU vs UMA MAHESHWARI | 30 Dec 2022 | Judgement | Acquitted |
Frequently Asked Questions
How many cases has Sri.K.Pardha Saradhi Rao handled?
Sri.K.Pardha Saradhi Rao has handled 3 court orders since 2022 at Medchal, ADJ Court Complex.
What types of cases does Sri.K.Pardha Saradhi Rao hear?
Based on available records, Sri.K.Pardha Saradhi Rao primarily handles Criminal matters (Criminal Cases) at Medchal, ADJ Court Complex.
Where is Sri.K.Pardha Saradhi Rao currently posted?
Sri.K.Pardha Saradhi Rao is posted as III Addl.Junior Civil Judge-cum-X Addl.Judicial Magistrate of First Class at Medchal at Medchal, ADJ Court Complex, Medchal Malkajgiri, Telangana.
Are judgments by Sri.K.Pardha Saradhi Rao available online?
Yes. 3 judgments by Sri.K.Pardha Saradhi Rao are available on Legistro with full text, outcome, and sections cited.
Since when is Sri.K.Pardha Saradhi Rao serving?
Sri.K.Pardha Saradhi Rao has been serving at Medchal, ADJ Court Complex since 2022.
Case Types
Posting History
-
Sep 2022 — Aug 2023III Addl.Junior Civil Judge-cum-X Addl.Judicial Magistrate of First Class at Medchal · 3 orders
Outcomes on Record
Other Judges at this Court