Sri K.ramaraju

1C.C. 63/2015, U/sec. 304(A) IPC

IN THE NAME OF SPECIAL MAGISTRATE COURT- II, AT VISAKHAPATNAM

PRESIDING OFFICER: SRI KALIDINDI RAMA RAJU, B.Com., B.G.L.,

SPECIAL MAGISTRATE,

VISAKHAPATNAM

Friday, 23rd day of December, 2016

C.C. No. 63/2015

(old C.C. No. 411/2013, Honourable III Metropolitan Magistrate Court, Visakhapatnam)

This case is coming on for final hearing before me on 21-12-2016, in the presence of Smt. M. Chiranjeevi Kumari, Asst. Public Prosecutor, for the state and Sri. M.A. Raju, Advocate for accused and having stood over for consideration till this day, this court delivered the following:

JUDGMENT

1The serial No. of the case C.C. No.63/2015 2 The date of offence08-06-2013

State Represented by Sub-Inspector 3Name of the Complainant of Police, Pendurthy Police Station, Visakhapatnam.

Kaligatla Atchibabu, S/o. Late Gangaya, aged 43 years, SC Maga, E. No: 752246, driver 4Name of the Accused Madilapalem RTC Bus Depot, R/o. Kummapalli Sivaru Daggupeta, Vepada Mandal, Vizianagaram District. Driver of RTC Bus AP 28 Z 5461. 5Offence Punishable U/sec. 304(A) I.P.C.

The plea of the accused & 6Total Denial his Examination, if any

1. The then sub-Inspector of Police, Pendurthi Police Station,

Visakhapatnam City, filed a charge sheet U/sec. 304(A) I.P.C., in Crime No. 202/2013, and this case is of 2013. This case was originally filed before the III Metropolitan

Magistrate Court, Visakhapatnam and after taking cognizance of the offence

U/sec. 304(A) I.P.C., against the accused the case was registered as C.C.411/2013, and summonses were issued to the accused and during the stage of appearance of accused, this case was transferred to this court on 09-03-2015, and re-numbered as C.C.63/2015.

The brief charge sheet allegations are as follow:

2C.C. 63/2015, U/sec. 304(A) IPC

2.It is submitted in the charge sheet that the deceased- Choppa

Krishnamma, is working as Agricultural laborer and living with his elder son LW2- Chppa

Swamy Naidu, since 15 years and on 08-06-2013, at 06.20PM., the deceased- Choppa

Krishnamma started from Chinamusidivada to go to main road for purchase of Cheroots and at Santhi Nagar at about 06.45PM., attempted to cross the BRTC Road, accused being the driver of Bus AP 28 Z 5461, while proceeding from Gopalapatnam towards

Pendurthi drove the same in a rash and negligent manner and dashed the deceased-

Choppa Krishnamma, due to hit the deceased- Choppa Krishnamma, fell on the road and received head injury and while shifting to hospital in 108 ambulance, he died on the way.

LW15-N. Radha Rao, ASI 2521 registered the report of LW1 as FIR in Cr. No: 202/2013,

U/sec. 304-A IPC of said PS and took up investigation, visited the scene of offence examined the same in the presence of LW8 and LW9 (Vechalapu Varahala Babu and K

Appa Rao) directed LW12- Vanapalli Ramesh to take photographs of the scene of offence, examined LW1 to LW7 (Dadi Sri Rama Krishna, Choppa Samy Naidu, Choppa

Akkunaidu, Varri Swamy naidu, Vari Yerri Naidu, Varri Ramu Naidu and Kella

Satyanarayana) and held inquest over the dead body in the presence mediators and sent the body for autopsy. LW13 Dr. Y. Pydi RAJ, Asst. Professor, FM, AMC who conduced autopsy, over the dead body of the deceased- Choppa Krishnamma, opined the cause of death due to respiratory and circulatory failure due to injury to brain due to head injury and issued PM report No: 809/2013. LW14 DP Ranga Rao, MVI who inspected the accident vehicle opined that the accident was not due to any mechanical defects of the vehicle. LW15-N Radha Rao, ASI 2521 arrested the accused on 14-06-2013 and produced him before court along with remand report. On completion of investigation LW16- D.

Kondala Rao, SI of Police, filed charge sheet against accused U/sec. 304(A) IPC.

Hence, the charge.

3. Basing on the material available on record, cognizance of case was taken for the offence U/sec. 304-A I.P.C., against accused and after appearance of accused before the court, copies of documents were furnished to him U/sec. 207 Cr.P.C.

The accused was examined U/sec. 251 Cr.P.C., on the substance of accusation. He denied the accusation and claimed to be tried. After closure of the prosecution evidence, the accused was examined U/sec.313 Cr.P.C. The incriminating material appearing against 3C.C. 63/2015, U/sec. 304(A) IPC the accused was put to him. He denied the incriminating material. To prove the offence against the accused, for the offence U/sec. 304-A I.P.C., the prosecution all together cited LW1 to LW16 but examined PW1 to PW9 only and got marked ExP1 to ExP9 on their behalf. Heard the arguments.

4. The accused was examined U/sec. 251 Cr.P.C., wherein he denied having driven the crime vehicle i.e., AP 28 Z 5461, of Maddilapalem depot in a rash and negligent manner on 08-06-2013. After closure of the prosecution evidence accused was examined U/sec. 313 Cr.P.C., wherein he reiterated what he stated in his sec. 251Cr.P.C., examination and further stated that while deceased- Choppa Krishnamma, was crossing the divider there fell on the ground and received injury and crime vehicle did not touch the injured/deceased- Choppa Krishnamma, at all and this case has been filed un-fairly.

5. Therefore, prosecution need not examine anybody to establish that accused was driver of crime vehicle at the time of accident since accused admits the same in his sec. 251 & 313 Cr.P.C. examinations. Accused did not examine himself or anybody on his behalf in support of his contention.

6. Now the points for determination are:

1. Whether the accused drove the crime vehicle in rash and negligent manner at that time and leading death of deceased-Choppa Krishnamma?

2. Whether the prosecution has proved the guilt of the accused beyond all reasonable doubt for the offence U/sec. 304-A I.P.C.?

Point No. 1 :-

7. LW1- Dadi Sri Rama Krishna, is examined as PW1 to prove his report dated 14-06-2013 and facts of the occurrence etc., facts. PW1 deposed that on 08-06-2013, at about 06.45PM., while himself and Tulasi Rao/Advocate were talking on foot path there at Shanthinagar they heard sound and they rushed to the spot where some people are found around the person lying on the ground and they also noticed one

RTC bus stationed there and other people telephoned to 108 ambulance and shifted the injured to KGH. Later, he came to know that the injured died while taking treatment and he did not notice the bus driver on that day at that spot and he gave a report/ExP1 in the

PS about the accident and police examined him and recorded his statement. At this stage learned APP declared him as hostile with permission of the court and cross examine him, wherein he denied having stated before police as in ExP2. PW1 chief evidence is not 4C.C. 63/2015, U/sec. 304(A) IPC challenged in the cross examination on behalf of accused. As per report ExP1 while himself and other was talking at that spot they heard a sound and rushed to the spot and saw a person lying on the ground. Thus, as per ExP1 report, PW1 is not a direct witness to the manner of accident. Accused admitted in his sec. 251 & 313 Cr.P.C., examinations that he was the driver of crime vehicle at that time. Though, the evidence of PW1 coupled with ExP1 would go to establish that deceased died of injuries sustained on that day it is not clear and convincing whether the said injuries are received by any dash of any vehicle or crime vehicle.

8. LW2- Choppa Swamy Naidu, is examined as PW2 to speak to the facts of the occurrence known to him and to prove the inquest report. PW2 deposed that deceased C. Krishna is his father and he died in a RTC Bus accident on 08-06-2013, near

Raitubazar Pendurthi, Visakhapatnam and near by people informed him about the accident then he immediately went to scene of offence and his father was shifted to KGH in 108 ambulance. The cross examination of defence is reported nil by the learned advocate for accused. As per charge sheet it is not clear whether he is eye witness of the accident but his evidence would go to show that he went to the spot on information but by that time his father was shifted to KGH and his father/deceased died while taking treatment. PW2 did not whisper anything about the manner of accident. Therefore, the evidence of PW2 admittedly the son of deceased is of no use for prosecution case that the accident took place due to rash and negligent act of accused alone.

9. LW16- D. Kondala Rao, SI of Police is examined as PW3 to speak to the filing of charge sheet etc., facts. PW3 deposed that on 08-06-2013, at about 08.00PM., PW1 came to PS and presented ExP1 report and their the then ASI, registered the same as FIR in Cr. No: 202/2013, for the offence U.sec. 304(A) IPC and he conduct inquest over the dead body of deceased and after completion of investigation by him he filed charge sheet against accused. PW3 denied the suggestion that he filed charge sheet without verifying the documents and papers. As already stated PW1 presented ExP1 report before PS and it was registered as FIR in Cr. No: 202/2013, U/se. 304(A) IPC. The said evidence is supported by evidence of PW3. PW3 is not main IO for the offence. PW3 files charge sheet only after verifying the investigation by PW9. PW3 is not main IO in this case and his evidence is of no avail to support the prosecution case that he 5C.C. 63/2015, U/sec. 304(A) IPC examined some of the important witnesses relevant to the incident of accident.

10. LW14- DP Ranga Rao, MVI is examined as PW4 to prove the accident report etc., facts. PW4 deposed that on 10-06-2016, he received requisition from SHO, Pendurthi Traffic PS., Visakhapatnam with a request to inspect the vehicle bearing No: AP 28 Z 5461, APS RTC Bus, Maddilapalem depot, Visakhapatnam and he inspected the said vehicle at relevant PS on the same day and found no damages to the vehicle and he has conducted road test and found the brake system of the said vehicle in good in condition and finally he gave opinion that the accident is not due to any mechanical defects of the said vehicle and accordingly, he issued MVI Certificate ExP3.

PW4 cross examination is closed as nil. It is not the claim of accused that the accident took place due to any mechanical defects of the crime vehicle i.e., AP 28 Z 5461, APS

RTC Bus.

11. LW7- Kella Satyanarayana, is examined as PW5 to speak to the facts of the occurrence and the accused is the driver of accident vehicle etc., facts. PW5 deposed that he knows the accused, he is driver of RTC bus in their depot during his service. 3 years ago himself and accused as Conductor and Driver are on AP 28 Z 5461 from Visakhapatnam to G Madugula on the date of accident, after their bus passed

Vepagunta junction at 06.45PM., he was engaged in issuing tickets in the bus then the driver of the bus applied sudden brake then the passengers in the bus cried loudly and he came down along with passengers and saw one person 10 or 12 feet away in front of their bus, and the person lying on the road was alive then. PW5 further deposed that in the meanwhile 108 ambulance rushed to the spot and took the person lying on the ground and removed him to KGH and he found bleeding from his nose. PW5 further deposed that the accused/driver visited the PS nearby and he also went there to PS to give complaint. At this stage learned APP declared PW5 as hostile and cross examined him with permission of the court, wherein he denied having stated before police as in

ExP4. As per prosecution he was eye witness to the accident but he did not support the prosecution case for the reasons best known to him. It is common knowledge that conductor of any bus uses to issue tickets to the passengers and may not be in a position to witness the accident which took place front of in the bus driven by accused o n that day as bus driver. However, admittedly PW5 is no other than colleague of accused from 6C.C. 63/2015, U/sec. 304(A) IPC the same APSRTC department. Thus, PW5 evidence is of no help for prosecution case.

12. LW9- K. Appa Rao, is examined as PW6 to prove the scene observation report etc., facts. PW6 deposed that about 4 or 5 years back at about 07.0AM., when he was coming from Pendurthi Raithubazar, he saw people gathering around the site near but he found no person with injury there and police came to the spot and recorded scene observation report and took his signature on mediator report/ExP5. The scene observation was held in the same date after the accident. The

ExP5 mediator report has not clearly shown the manner of accident. It is clear from ExP5 mediator report regarding scene and about the roads leading to Pendurthi to Vepagunta and their width and also service rads on either side of the BRTS roads. As already stated the accused driver of RTC bus is not denying the place of accident and roads leading from

Pendurthi to Vepagunta. The rough sketch/ExP8 does not bear the signatures of people present there at that time and it does not bear police station stamp to evaluate its authenticity. Therefore, the said document shown on the rough sketch can not be considered to find out the manner of accident including rash and negligent act of accused.

13. LW10- Ganta Ramana Murthy is examined as PW7 to prove the inquest report etc., facts. PW7 deposed that he knows deceased/CH. Krishnamma, who died in RTC bus accident and he used to stay by the side of their house in

Chinamushidivada and the said person died in the year 2013 near Pendurthi PS.,

Visakhapatnam then he was at his house. PW7 further deposed that he went to KGH to see him and in his presence police conducted inquest over the dead body of deceased and ExP6 is inquest report and he signed on it. As per inquest report they opined that the deceased died of injuries sustained in the accident caused by RTC bus. PW7 denied the suggestion that the deceased did not die of injuries sustained in any accident caused by

RTC bus on that day. PW7 evidence would go to establish that deceased died on that day at the scene of offence but his evidence is not assertive to conclude the manner of accident and other circumstances leading to the accident wherein deceased received injuries and while taking treatment deceased later died for injuries sustained to him on that day.

14. LW12- Vanapalli Ramesh is examined as PW8 to speak to his 7C.C. 63/2015, U/sec. 304(A) IPC taking phtographs of the deceased and the scene of offence etc., facts. PW8 deposed that on 09-06-2013, at about 06.00AM., police called him to the accident spot for taking photographs and accordingly, he took about 10 photographs on that day and when he took photographs of scene of offence RTC bus was found parked there and he took photographs of the said RTC bus on that day. But prosecution agency did not file any photographs or negatives of the same which are said to have been taken by PW8.

According to him in the cross examination he was not taken to accident spot for taking photographs. Thus, the evidence of PW8 in the absence of any photographs and negatives of the scene observation report is of no use at all for prosecution. It is ridiculous as to why prosecution agency did not file any photographs of scene of offence including negative said to have been taken after accident. Non filing of the said photographs and negatives there on is fatal to the prosecution case. Men may lie but not the documents if photographs of scene of offence are taken they could have acted favourable to prosecution as circumstantial evidence. No explanation what so ever from prosecution as to why the photographs said to have been taken are produced in the court. Therefore, oral evidence of PW8 without photographs said to have been taken by photographer is of no use for prosecution case.

15. LW15- N. Radha Rao, ASI 2521 as PW9 to speak to the registration of FIR, his investigation and arrest of accused etc., facts. PW9 deposed that on 08-06-2013, PW1 came to the PS and presented ExP1 report and he registered the same as FIR in Cr.No: 202/2013, for the offence U/sec. 304(A) IPC and he submitted the original FIR/ExP7 and he examined PW1 at station and recorded his statement and he visited the scene of offence on 09-06-2013 located at Pendurthi Rythu Bazaar and observed scene of offence and prepared scene observation report/ExP5 in the presence of PW6, LW8-Varahababu. ExP8 is rough sketch. Later he visited KGH and conducted inquest over the dead body of deceased in the presence of mediators and relative, during the inquest he examined some witnesses and recorded their statements and he sent the dead body for PM examination. PW9 further deposed that at the scene of offence he seized the RTC bus bearing No: AP 28 Z 5461 of Maddilapalem depot and later he gave a requestion to MVI to inspect the crime vehicle and on 14-06-2013, accused surrendered

before him at the PS along with PW5 and he arrested him and sent him to judicial

8C.C. 63/2015, U/sec. 304(A) IPC custody. PW9 further deposed that he received SR from conductor/PW5 on that day. After completion of investigation and receipt of PM and MVI reports PW3 filed charge sheet against accused. PW9 lastly deposed that PW5 stated before him as in ExP4 statement.

PW9 denied the suggestion that he did not examine PW5 and PW6 at all and they did not speak about the accident. PW9 further denied the suggestion that the accused is nothing do with the accident. As already stated no witness examined on behalf of prosecution spoke nothing about accused driver of crime vehicle and the accident took place due to any rash and negligent act of accused as driver of crime vehicle. Thus, there is no any oral or circumstantial evidence in favour of prosecution against the accused establishing that the accident took place due to rash and negligent act of accused alone.

POINT NO:2

16. For proof of offence U.sec. 304(A) IPC., the death of human being that the accident caused the death of deceased by doing of a rash and negligent act must be established. But there is no cogent and satisfactory evidence from prosecution witnesses examined in this case U.sec. 304(A) IPC as alleged against accused by prosecution. To impose criminal liability U.sec.304(A) IPC, it is necessary that death should have been the direct result of rash and negligent act of accused and that act must be the proximate result without the intervention of any other negligence. In motor accident cases the question of accident rashness or negligence is a question of fact to be decided upon the circumstances of each case. Prima-facie such negligence could be presumed against one whose car leaves the road and dashes head long against a tree. If a person suddenly crosses the road bus driver however, expert he may be may not be in a position to save the accident. Thus, the bus driver can not be said to be negligent in a such cases. It is for the prosecution to prove the negligence and to show the act of omission of the accused contributory to the result. In the accident cases in my opinion there may be contributory negligence on the part of victim or injured to involve in the accident by walking on the road without observing rules. In this case, prosecution did not establish to the satisfaction of the court that the accident took place due to rash and negligent act of accused alone. The said fact must be established particularly because accused claims that the victim/deceased was crossing the divider there and fell on the ground and received injury and crime vehicle did not touch the injured/deceased- Choppa 9C.C. 63/2015, U/sec. 304(A) IPC

Krishnamma, at all and this case has been filed un-fairly. As already stated no prosecution witnesses assertively stated about the manner of accident and involvement of accused by driving the crime vehicle in a rash and negligent manner. Therefore, I feel it improper and judicious to hold that the accident took place due to rash and negligent act of accused alone. Simply because accused is driver of crime vehicle at the time of accident it is not at all proper and judicious to hold that the accident took place due to rash and negligent act of accused alone unless there is cogent and positive evidence from prosecution witnesses regarding the manner of accident and involvement of accused as driver of crime vehicle. It is established principle of law that prosecution has to prove the negligent and the act of omission of accused and there is no contributory negligence on the part of victim in the said incident of accident. In this case there is no plausible and circumstantial evidence too, from prosecution witnesses about the manner of accident. I doubt that there is contributory negligence on the part of injured as claimed by accused.

17. In the result, accused is found not guilty for the offence

U/sec. 304 (A)I.P.C. Therefore, he is acquitted U/sec. 255 (1) Cr.P.C., for the above said section of law. His bail bonds if any shall stand cancelled.

Sd:/ K. Rama Raju,

SPECIAL MAGISTRATE,

SPECIAL MAGISTRATE COURT-II,

VISAKHAPATNAM.

Dictated to Personal Assistant and transcribed by her and pronounced by me in open court this

Friday, 23rd day of December, 2016.

Sd:/ K. Rama Raju,

SPECIAL MAGISTRATE,

SPECIAL MAGISTRATE COURT-II,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE No.

OF WITNESS EXAMINED FOR

Prosecution:- 1.PW1. Dadi Sri Rama Krishna, 2.PW2. Choppa Swamy Nadu, 3.PW3. D. Kondala Rao , IO 4.PW4. D.P. Ranga Rao, MVI 5.PW5. Kella Satyanarayana, eye witnessing 6.PW6. K. Appa Rao, mediator of scene observation report 7.PW7. Ganta Ramana Murthy, inquestdhar 8.PW8. Anapalli Ramesh, Photographer 9.PW9. N. Radha Rao, ASI 2521 , IO.

10C.C. 63/2015, U/sec. 304(A) IPC

Defence:-

Nil Documents marked For

Prosecution:-

1. ExP1- report to police by PW1

2. ExP2- sec. 161Cr.P.C., statement of PW1

3. ExP3- MV report by PW4

4. ExP4- sec. 161Cr.P.C., statement of PW5

5. ExP5- mediator report by PW6

6. ExP6- inquest report by PW7

7. ExP7- FIR in Cr. No: 202/2013 by PW9

8. ExP8- rough sketch by PW9

9. ExP9- PM report by PW9

Defence:

NIL

Sd:/ K. Rama Raju,

SPECIAL MAGISTRATE,

SPECIAL MAGISTRATE COURT-II,

VISAKHAPATNAM.

11C.C. 63/2015, U/sec. 304(A) IPC

CALENDAR AND JUDGMENT

DISTRICT OF VISAKHAPATNAM

IN THE COURT OF SPECIAL MAGISTRATE - II, AT VISAKHAPATNAM

_______________________________________________________________________ Date of offence: 08-06-2013 Explanation for delay & remarks, Filling of charge sheet: 30-07-2013 Received by transfer from III MMC, VSKP on Appearance of accused : 02206-2015 09-03-2015, which was numbered as Release on bail: --- C.C.411/2013. Commencement of trial: 05-08-2015 Close of trail : 21-12-2016 Sentence or order: 23-12-2016

C.C. No: 63/2015: On the file of Special Magistrate Court II, at Visakhapatnam.

Name of the ComplainantState Represented by Sub-Inspector of Police, Pendurthy Police Station, Visakhapatnam.

Name of the Accused Kaligatla Atchibabu, S/o. Late Gangaya, aged 43 years, SC Maga, E. No: 752246, driver Madilapalem RTC Bus Depot, R/o. Kummapalli Sivaru Daggupeta, Vepada Mandal, Vizianagaram District. Driver of RTC Bus AP 28 Z 5461.

Offence Punishable U/sec. 304(A) I.P.C.

FindingFound not Guilty

Sentence In the result, accused is found not guilty for the offence U/sec. 304(A) IPC. Therefore, he is acquitted

U/sec. 255 (1) Cr.P.C., for the above said sections of law. His bail bonds if any shall stand cancelled.

.

Sd:/ K. Rama Raju,

SPECIAL MAGISTRATE,

SPECIAL MAGISTRATE COURT-II,

VISAKHAPATNAM.

1C.C. 151/2014, U/sec. 138 NI Act

IN THE NAME OF SPECIAL MAGISTRATE COURT- II AT VISAKHAPATNAM

PRESIDING OFFICER: SRI KALIDINDI RAMA RAJU, B.Com., B.G.L.,

SPECIAL MAGISTRATE COURT II,

VISAKHAPATNAM

Wednesday, 23rd day of November, 2016

C.C. No. 151/2014

(old C.C. No. 392/2014, of Honourable II ACMM, Visakhapatnam)

This case is coming on for final hearing before me on 21-11-2016, in the presence of Sri. V. Govinda Raju, the advocates for complainant and Sri. T. Bujanga Rao, Advocates for accused, and having stood over for consideration till this day, this court delivered the following:

JUDGMENT

1The serial No. of the case C.C. No. 151/2014 2 The date of offence21-02-2014 Marisetty Venkata Nageswara Rao, S/o. M. Venkata Ramana, Hindu, aged 35 3Name of the Complainant years, R/at. Dr.No: 1-52, Yellapuvanipalem, Gopalapatnam, Visakhapatnam.

Poosarla Nageswara Rao, 4Name of the Accused S/o. Late Kameswara Rao, Hindu, aged 48 years, R/of. Q.No: P11/1, Naushan Baugh, MES Colony, Visakhapatnam.

Dishonour of cheque for insufficiency of 5Offence funds punishable U/sec. 138 Negotiable Instrument Act

The plea of the accused & his 6Total Denial Examination, if any

1. This is a private complaint filed against the accused for the offence U/sec.

190(1) & 200 Cr.P.C., punishable U/sec. 138 of Negotiable Instrument Act, and this case is of 2014. This case was originally filed before the Honourable II Additional Chief

Metropolitan Magistrate Court, Visakhapatnam, and after taking cognizance of the offence U/sec. 138 N.I. Act, against the accused the case was registered as

C.C. 392/2014, and summons was issued to the accused and during the stage appearance of accused, this case was transferred to this court and re-numbered as C.C.

151/2014 The brief complaint allegations are as follow:

2. The complainant submits in the complaint that accused borrowed an

Rs. 2,00,000/- on 02-02-2013, from the complainant to discharge his sundry debts and 2C.C. 151/2014, U/sec. 138 NI Act to meet his family expenses, by executing a demand promissory note on the even date in favour of him and agreed to repay the said amount with an interest at 24% PA. On repeated demands and requests made by the complainant accused issued a cheque bearing No: 739927, for Rs. 1,50,000/-, for dated 10-02-2014, drawn on SBI,

Gopalapatnam branch, Visakhapatnam, in favour of complainant towards part payment of the amount due under the promissory note, when complainant presented the said cheque for collection on 19-02-2014, through his banker i.e., SBI, Gopalapatnam branch,

Visakhapatnam, the said cheque was returned unpaid with an endorsement “funds insufficient” on dated 21-02-2014. Then complainant got issued a registered lawyer notice dated 22-02-2014 and it was returned on 04-03-2014 with an endorsement “not claimed”. Hence, the complaint.

3. Basing on the material available on record, cognizance was taken under the offence U/sec. 138 Negotiable Instrument Act, against the accused. After appearance of accused before the court, copies of documents were furnished to him U/sec. 207 Cr.P.C.

The accused was examined U/sec. 251 Cr.P.C., on the substance of accusation. He denied the accusation and claimed to be tried. After closure of the prosecution evidence, the accused was examined U/sec. 313 Cr.P.C. The incriminating material appearing against the accused was put to him. He denied the incriminating material. To prove the guilt of the accused, complainant himself examined as PW1 and accused banker as PW2 and got marked ExP1 to ExP5 and ExX1 and ExX2 documents on his behalf. After closure of the complainant side evidence the accused was examined under section 313 Cr.P.C. All the incriminating material evidence appearing against the accused was put to him. Accused denied the same and reported defence evidence and he examined himself as DW1 and got marked no documents on his side. Heard, the arguments.

4. The accused was examined U/sec. 251 Cr.P.C., wherein he completely denied any financial transaction between him and complainant. After closer of the complainant side evidence, accused was examined U.sec 313 Cr.P.C., wherein he completely denied any financial transaction between him and complainant at any point of time and he further stated that he does not know PW1 at all and he did not give any cheque ExP1 in favour of complainant and he closed his bank account five years back.

Accused also denied having received any demand notice from complainant in this case.

5. The provisions of sec. 138 Negotiable Instrument Act clause (a) (b) and 3C.C. 151/2014, U/sec. 138 NI Act © to the provisions there of indicate that a cheque has to be presented to the Bank within a period of six months for the date of which it is drawn on with in a period of its validity, whichever is earlier. Clause (b) indicates that the payee or the holder in due course of cheque, has to make demand for the payment of said amount of money by giving a notice in writing to the drawer of the cheque with in 30 days of receipt of information by him from the bank regarding the return of the cheque as unpaid and clause © provides that if the drawer of cheque fails to make the payment of said amounts to payee or holder in due course of the cheque within 15 days of receipt of said notice, payee or holder of the cheque may file a complaint U/sec. 142 of the act in the manner as prescribed.

6. Now the points for determination are:

1. Whether the accused executed for Rs.2,00,000/- as legally enforceable debt?

2. Whether the accused issued the cheque-ExP1, towards part payment of pronote as legally enforceable debt?

3. Whether the original of legal notice- ExP3, is issued by complainant in time and it was returned under ExP4?

4. Whether the complainant has proved the guilt of the accused beyond all reasonable doubt for the offence U/sec. 138 Negotiable Instrument Act?

Points No. 1 & 2:-

8. The complainant filed evidence affidavit U/sec. 145 (1) NI Act, wherein he reiterated what he stated in his complaint. The complainant examined himself as PW1, and got marked documents ExP1 to ExP5 on his behalf.

9. In his cross examination PW1 disclosed that they got acquaintance with each other and he got money paid to accused from his father retirement benefits.

PW1 also stated that he filed civil suit against accused for recovery of pronote debt and scribe and attestors under the pronote were also present on that day. According to PW1 cheque ExP1 was issued to discharge the pronote debt covered by ExP5-certified copy of judgment. PW1 denied the suggestion that the signature on ExP1 cheque does not belong to accused and similarly cheque leaf ExP1 does not belong to accused at all and accused/Posarla Nageswara Rao, is not the person who issued the cheque ExP1.

10. It is the claim of PW1 that he issued original demand notice under

ExP3 to the accused but the said notice cover was returned undelivered as “unclaimed” under ExP4. No suggestion is made to PW1 in the cross examination that accused never 4C.C. 151/2014, U/sec. 138 NI Act stayed at the address mentioned in the ExP4 cover. So, it can be safely concluded that demand notice was sent to accused address but it was returned as un-claimed under

ExP4. It is settled principle of law that the endorsement “unclaimed” on the cover amounts to service of the same. It is evident on the evidence of PW1 that he filed civil suit also against accused to recover the pronote debt due from the original of pronote. It is clearly mentioned in the certified copy of Judgment/ExP5 from the competent court in

O.S.598/2014 on the file of VI Addl. Senior Civil Judge Court, Visakhapatnam dated

03-03-2016. It is clear from the said judgment that the defendant is no other than accused herein who borrowed an amount of Rs. 2,00,000/- from plaintiff/complainant on 02-02-2013, for his family expenses and despite several demands accused failed to pay the pronote debt and even though the defendant filed written statement and he did not turn up for cross examination of PW1 and the said judgment was passed exparte finally.

The documents covered by ExP1 and ExP2 are clearly discussed in said judgment. As already stated there is no question put to PW1 in his cross examination about the judgment. Therefore, the judgment copy ExP5 can be accepted and PW1 also took steps on civil side on the basis of pronote and cheque/ExP1 filed herein. In his cross examination PW1 further disclosed that when cheque ExP1 was typed the accused was also present. PW1 denied the suggestion that the signature on ExP1 cheque does not belong to accused and similarly, the cheque ExP1 leaf does not belong to accused. As could be sen from the ExP2 cheque return memo, the cheque ExP1 is cheque leaf from the accused cheque book and it was returned unpaid as there is no sufficient funds in his account. The cheque return memo/ExP2 mentions the cheque number covered by ExP1 where the account number of accused is shown. PW1 denied the suggestion that the accused Poosarla Nageswara Rao, is not the person who issued ExP1 cheque and he did not take any amount from PW1. The chief evidence of PW1 is not shaken in the cross examination on material aspects.

11. The complainant examined accused banker as PW2. PW2 deposed that Poosala Nageswara Rao/accused holds SB account bearing No: 30891823899 and on 01-02-2014, their bank received ExP1 cheque for collection but it was returned unpaid with an endorsement “funds insufficient” under ExP2 memo. ExX1 is statement of account maintained in the name of accused. ExX2 is authorization letter. In his cross examination PW2 stated that he was not in the branch on 21-02-2014 when cheque 5C.C. 151/2014, U/sec. 138 NI Act shake the case of complainant because PW2 deposed as per their bank records confirming the cheque return memo ExP2. PW2 also denied the suggestion that the cheque ExP1 is out of the cheque book issued in the name of accused. Complainant clearly stated that accused issued ExP1 cheque out of the cheque book issued by him by his banker. The said contention of complainant is supported by PW2 who is banker of accused. Thus, the evidence of PW2 would support the complainant case that there is no sufficient balance in the account of accused cheque when cheque was issued. Thus, the evidence of PW2 would support the complainant case that ExP1 cheque was issued out of his cheque book issued by accused in favour of PW1 to discharge some amount due to him. The evidence of PW2 is quite assertive and there is no any reasons to disbelieve the evidence of PW2 who is no other than banker of accused.

12. It is one of the contentions of accused that he does not know PW1 at all and he did not give the cheque to PW1 and he closed his account 5 years back. In order to prove his contention accused examined himself as DW1. DW1 deposed that he does not know PW1 prior to this case and no financial transaction took place between them and he did not issue any cheque in favour of PW1 and the signature on ExP1 does not belong to him and cheque leaf is also does not belong to him. As already stated the evidence of PW2 who is banker of accused to establish through PW2 that the signature on ExP1 cheque belongs to accused. Therefore, the evidence of accused that the cheque leaf ExP1 and the signature there on do not belong him is not at all acceptable in the light of evidence of PW2 who is no other than banker of accused. PW2 has no necessity to speak untrue against their bank customer i.e., accused. The accused denied suggestion in the cross examination that PW1 filed O.S. 598/2014, on the file of

Honourable VI Addl. Senior Civil Judges Court, Visakhapatnam, wherein accused engaged

an advocate in the said court in a capacity of defendant. The said denial of accused is quite contra to the contents of ExP5/Judgment. The accused did not take any steps to deny his signature on ExP1 cheque for sending it to hand writing expert. As already stated PW2 who is accused banker assertively stated that ExP1 cheque belongs to accused account maintained in their bank and ExX1 statement of account of accused is support the same. It is to be mentioned here that accused filed a petition U.sec. 45 6C.C. 151/2014, U/sec. 138 NI Act

Evidence Act, seeking the court to send the admitted and disputed signatures of accused to hand writing expert on 21-11-2016. The petition was filed on 21-11-2016, U/sec. 45

Evidence Act, to send the disputed signature to hand writing expert when the main matter was stand posted for arguments. Where as accused was examined as DW1 on 16- 09-2016.

13. The accused claimed some witness on his behalf but he was examined himself as DW1 only and he did not examine anybody else. As already stated it is suggested to PW1 that accused is not the person by name Poosarla Nageswara Rao who issued ExP1 cheque. To prove the same accused did not take any steps that he is not the person by name Poosarla Nageswara Rao. As could be seen from the admitted signatures of accused on sec. 251Cr.P.C., examination and disputed on ExP1 cheque when compared appear quite similar and written by one and the same person. It is settled principle of law that court has got power U.sec. 73 Evidence Act, to compare the admitted and disputed signatures of accused to conclude the decision for correct decision. A petition was filed by accused U.sec . 45 Evidence Act vide Crl.M.P.

2392/2016 at a fag end of the proceedings and it is not considered to be sent to save further delay.

POINT NO:3

14. The complainant followed the provision U.sec. 138(b) NI Act well and he issued demand notice cover within time in writing and it was returned undelivered as “un-claimed”. It is my opinion if any registered post cover returned “un-claimed” it amounts to service of the same as per established principle of law. As already stated complainant filed civil suit against accused basing on pronote and cheque ExP1 issued by accused in his favour and obtained exparte decree covered by ExP5. The said document

ExP5 would clearly and categorically establish that accused borrowed an amount of

Rs. 2,00,000/- from PW1 and on demands he issued ExP1 cheque for Rs. 1,50,000/- towards part payment of the pronote debt. The said cheque is marked as ExP1 in this case. Thus, again the document ExP5 of civil court passed judgment against accused herein at the instance of plaintiff/complainant herein would further support the claim of complainant that he filed a civil suit against accused for recovery of debt covered by pronote and obtained decree and the said decree became final because there is no evidence from accused side that he preferred any appeal against civil judgment covered 7C.C. 151/2014, U/sec. 138 NI Act by ExP5.

15. The accused examined as DW1 denying any pronote transaction between him and complainant and he also denied having issued ExP1 cheque. But it is clearly established through the evidence of PW1 and PW2 coupled with ExP1 to ExP5 and

ExX1 documents that there is financial transaction taken place between the parties and accused issued ExP1 cheque to discharge the pronote debt without having any sufficient funds in the account of accused on the date of cheque as could be seen from the evidence of PW2 and ExX1 documents.

POINT No. 4

16. The case of the complainant does not at all sustain any infirmity or illegality. The ingredients of Section – 138 (a to c) Negotiable Instrument Act are fully satisfied. The material evidence and other circumstances cumulatively probabalise the case of complainant beyond reasonable doubt. I do not find any reason to discredit the evidence of PW1 & PW2 coupled with the documentary evidence ExP1 to ExP5 and ExX1 and ExX2. Their evidence is trust worthy and acceptable. On the other hand the defence taken by accused does not stand to any reason. Hence, the invariable presumption under 138 ( c ) NI Act is that pronote was executed for consideration and for discharge of said debt accused issued ExP1/cheque for a legally enforceable debt. In the light of above discussion I am fully satisfied that complainant has discharged his initial duty of proving his case as contemplated by sec. 138 NI Act. Now the burden shifts to accused to disprove the case of PW1 by way rebuttal evidence U/sec. 139 NI Act.

17. Now duty shifts on the Accused to prove his burden to rebut the case under Section – 139 of N.I. Act. It shall be presumed unless the contrary is proved, that the holder of the cheque cheque of nature referred to in Section – 139 of N.I. Act for the discharge in whole or in part, or any debt or other liability. The Honourable supreme

Court made it explicitly clear that payment made in favour of holder of the cheque that he received for discharge of a debt or liability, must be drawn at once unless the contrary is proved by rebuttal evidences and all payments by cheque are prima facie indicative of the fact that they are issued to discharge an existing debt or liability. That is what is inferable under Section – 139 of the Act. Therefore, it is open to the accused to establish that payment of the amount by cheque is, in fact, a loan or other liability. If the Accused fails to discharge the burden of proof by rebuttal evidence, the necessary 8C.C. 151/2014, U/sec. 138 NI Act consequences immediately follow is that the cheque is issued for payment of a legally enforceable debt only. As per sec. 118(a) of NI Act, the presumption is until the contrary is proved that every Negotiable Instrument is made or drawn for consideration.

Failure of accused in giving reply to legal notice issued by complainant is one of the strong circumstances to draw an inference that accused borrowed an amount for

Rs. 2,00,000/- and executed pronote in favour of PW1 and to issue ExP1/cheque to discharge a part payment towards a legally enforceable debt. Therefore, accused is said to have failed utterly to prove his contentions by way of rebuttal evidence U/sec. 139 NI

Act.

18. In the light of above discussion it is my considered opinion that complainant is able to prove the guilt of accused for the offence U.sec. 138 NI Act beyond all reasonable doubt.

19. In the result, the Accused is found guilty for the offence under Section – 138 of Negotiable Instrument Act. Therefore, he is convicted U/sec. 255 (2) Cr.P.C. for the above said section of law.

Sd:/ K. Raja Raju

SPECIAL MAGISTRATE,

SPECIAL MAGISTRATE COURT-II,

VISAKHAPATNAM.

Dictated to Personal Assistant and transcribed by her and pronounced by me in the open court, this

Wednesday, 23rd day of November, 2016. Sd:/ K. Raja Raju

SPECIAL MAGISTRATE,

SPECIAL MAGISTRATE COURT-II,

VISAKHAPATNAM.

Quantum of sentence:

Therefore, accused is sentenced to undergo simple imprisonment for one year and shall also to pay a fine of Rs. 10,000/-, in default simple imprisonment for three months.

The period of detention under gone by the accused during the investigation and trial if any shall be given set off U.sec. 428 Cr.P.C., and he can prefer an appeal against the conviction and sentence passed by this court on him within 30 days.

Sd:/ K. Raja Raju

SPECIAL MAGISTRATE,

SPECIAL MAGISTRATE COURT-II,

VISAKHAPATNAM.

Pronounced by me in the open court dated this Wednesday,23rd day of November,2016.

Sd:/ K. Raja Raju

SPECIAL MAGISTRATE,

SPECIAL MAGISTRATE COURT-II,

VISAKHAPATNAM.

9C.C. 151/2014, U/sec. 138 NI Act

APPENDIX OF EVIDENCE No.

OF WITNESS EXAMINED FOR

COMPLAINANT:-

1. PW1:- Marisetty Venkata Nageswara Rao, Complainant

2. PW2:- M. Rajednra Prasad, Accused Banker.

DEFENCE:-

Nil

Documents marked For

COMPLAINANT:-

1. Ex.P1- cheque for Rs 1,50,000/- dated 10-02-2014

2. Ex.P2- cheque return memo dated 21-02-2014 with an endorsement “funds insufficient”.

3. Ex.P3- Office copy of legal notice dated 22-02-2014

4. Ex.P4- postal return cover dated 04-03-2014 with an endorsement “intimation served/unclaimed”

5. Ex.P5- certified copy of judgment in OS 598/2014, on the file of Honourable VI ASCJ Court, Visakhapatnam.

DEFENCE:

1. DW1- Poosarla Nageswara Rao, Accused.

Banker:

1. ExX1- copy of statement of account maintained in the name of complainant by PW2.

2. ExX2- authorization letter of PW2

Sd:/ K. Raja Raju

SPECIAL MAGISTRATE,

SPECIAL MAGISTRATE COURT-II,

VISAKHAPATNAM.

10C.C. 151/2014, U/sec. 138 NI Act

CALENDAR AND JUDGMENT

DISTRICT OF VISAKHAPATNAM

IN THE COURT OF SPECIAL MAGISTRATE-II, AT VISAKHAPATNAM

___________________________________________________________________ Date of offence:21-02-2014Explanation for delay & remarks, Date of Filling:09-05-2014 Received by transfer from Honourable Appearance of accused:10-02-2015 II ACMM, Visakhapatnam on 22-08-2014. Release on bail: --- which was numbered as CC.392/2014. Commencement of trail:23-07-2015 At the stage of arguments both side Close of trail :23-08-2016 took 12adjournments mostly at the instance Sentence or order :23-11-2016 of accused and filed petitions one after another. Accused paid Rs. 6,000/- only out of Rs.10,000/- fine amount and time is extended to deposit the remaining fine amount of Rs. 4,000/- on or before 28-11-2016 as per order in Crl.M.P. 2422/2016, filed U/sec. 424 Cr.P.C., dated 23-11-2016. Sentence is suspended till 23-12-2016, on executing a bond for an amount Rs. 10,000/-, with one surety for a like sum as per order in Crl.M.P. 2421/2016, filed U/sec. 389 (3) Cr.P.C., dated 23-11-2016, and the accused is released as he executed the bond as ordered in the above said Crl.M.P.2421/2016. --------------------------------------------------------------------------------------------------- C.C. No. 151/2014: On the file of Special Magistrate Court II, at Visakhapatnam. Name of the ComplainantMarisetty Venkata Nageswara Rao, S/o. M. Venkata Ramana, Hindu, aged 35 years, R/at. Dr.No: 1-52, Yellapuvanipalem, Gopalapatnam, Visakhapatnam.

Name of the Accused Poosarla Nageswara Rao, S/o. Late Kameswara Rao, Hindu, aged 48 years, R/of. Q.No: P11/1, Naushan Baugh, MES Colony, Visakhapatnam.

OffenceDishonour of cheque for insufficiency of funds punishable U/sec. 138 Negotiable Instrument Act.

FindingFound Guilty

Sentence In the result accused is found guilty for the offence U/sec. 138 Negotiable Instrument Act. Therefore, he is convicted U/Sec. 255(2) Cr. P.C. for the above said section of law. Accused is sentenced to undergo simple imprisonment for one year and shall also to pay a fine of Rs. 10,000/-, in default simple imprisonment for three months. The period of detention under gone by the accused during the trial if any shall be given set off U.sec.428 Cr.P.C., and he can prefer an appeal against the conviction and sentence passed by this court on her within 30 days. Free copy of Calendar and Judgment is furnished to accused. Sd:/ K. Rama Raju

SPECIAL MAGISTRATE,

SPECIAL MAGISTRATE COURT-II,

VISAKHAPATNAM.

11C.C. 151/2014, U/sec. 138 NI Act

1 C.C.131/2013, U/sec. 447, 427 & 506 r/w. 34 IPC

IN THE NAME OF SPECIAL MAGISTRATE COURT- II, AT VISAKHAPATNAM

PRESIDING OFFICER: SRI KALIDINDI RAMA RAJU, B.Com., B.G.L.,

SPECIAL MAGISTRATE,

VISAKHAPATNAM

Wednesday, 23rd day of November, 2016

C.C. No. 131/2013

(old C.C. No. 244/2010 of Honourable III Metropolitan Magistrate Court, Visakhapatnam)

This case is coming on for final hearing before me on 21-11-2016, in the presence of Smt. M. Chiranjeevi Kumari, Asst. Public Prosecutor, for the state and Sri. S.S. Chalam, Advocate for accused and having stood over for consideration till this day, this court delivered the following:

JUDGMENT

1The serial No. of the case C.C. No. 131/2013 2 The date of offence19-03-2009

State Represented by Sub-Inspector of 3Name of the Complainant Police, Kancharapalem Police Station, Visakhapatnam.

A1- Rayapureddy Srinivasa Rao, S/o. Late Atakeswara Rao, aged 48 years, Reddy by caste, R/o. Q.No: 16-B, S. Kota Railway quarters, S.Kota, Vizianagaram District, Indian Railways Employee. 4Name of the Accused A2- Vemala Hari Krishna Reddy, S/o. Y Rami Reddy, aged 39 years, Reddy by caste, Dr.No: 58-9-118, New Karasa, NAD Kotha Road, Visakhapatnam, (working as a fitter in GVMC, Visakhapatnam) 5Offence PunishableU/sec. 447, 427 & 506 r/w. 34 IPC,

The plea of the accused & his 6Total Denial Examination, if any

1. The then Sub Inspector of Police, Kancharapalem Police Station,

Visakhapatnam City, filed a charge sheet U/sec. 447, 427 & 506 r/w. 34 IPC, in Crime

No. 725/2009, and this case is of 2010. This case was originally filed before the

III Metropolitan Magistrate Court, Visakhapatnam and after taking cognizance of the offence U/sec. U/sec. 447, 427 & 506 r/w. 34 IPC, against the accused A1 and A2 the case was registered as C.C. 244/2010, and summons were issued to A1 and A2 and 2 C.C.131/2013, U/sec. 447, 427 & 506 r/w. 34 IPC during the stage of appearance of A2, this case was transferred to this court on 06-01-2013, and re-numbered as C.C. 131/2013. The brief charge sheet allegations are as follows:

2.It is submitted in the charge sheet that the defacto complainant/LW1-

Lakku Krishna Reddy, had purchased a vacant land including the asbestos shed bearing

Dr. No: 58-9-15/1, Assessment No: 72713/B, in S.No: 120 in an extent of 350 Sq.yards situated at Karasa, Ganesh Nagar area from his lawful vendors:1. Maratha Savithri, 2.

Reddypalli Chittemma by way of regular registered sale deed vide document No:

253/2009. Since, the date of purchase LW1-Lakku Krishna Reddy, is in peaceful possession and enjoyment of the said property. While so on noticing the threat from the accused who are trying to occupy the said site, LW1-Lakku Krishna Reddy, filed a suit against the accused vide OS No: 324/2009, in the court of III Addl. Junior Civil Judge

Court and obtained injunction order vide IA NO: 117/2009. While the injunction is in force, on 18-03-2009, the accused came to the schedule mentioned property of LW1-

Lakku Krishna Reddy, used unparliamentary language and warned LW1-Lakku Krishna

Reddy, to vacate his property, otherwise they will see the end of LW1- Lakku Krishna

Reddy. On 19-03-2009 the accused illegally trespassed into the site of LW1-Lakku

Krishna Reddy, demolished the compound wall, removed the caution board and dismantled the asbestos shed wherein LW1-Lakku Krishna Reddy, and the neighbours witnessed the same and LW1-Lakku Krishna Reddy, also took photographs to that effect.

After the demolition of the properties, LW1-Lakku Krishna Reddy, constructed th compound wall and room in his site and at mid night on 09-04-2009 again both the accused came to the said property and demolished the same and the complainant took photographers of the mishap. Since 10-04-2009 both of accused are visiting the property and they are scolding with filthy language LW1-Lakku Krishna Reddy. LW9-K. Prabhakar,

Inspector of Police, registered the court endorsed petition of LW1-Lakku Krishna Reddy, as a case in Cr. No: 725/2009, U/sec. 427, 447, 506 r/w. 34 IPC on 16-12-009 and endorsed the investigation to LW10-U. Thamma Rao, S of Police. After completion of investigation LW10 – U. Tamma Rao, filed charge sheet against accused. Hence, the charge.

3. Basing on the material available on record, cognizance of case was 3 C.C.131/2013, U/sec. 447, 427 & 506 r/w. 34 IPC taken for the offence U/sec. 427, 447, 506 r/w. 34 IPC, against A1 and A2 accused and after appearance of accused before the court, copies of documents were furnished to them U/sec. 207 Cr.P.C. The accused were examined U/sec. 251 Cr.P.C., on the substance of accusation. They denied the accusation and claimed to be tried. After closure of the prosecution evidence, A1 and A2 were examined U/sec. 313 Cr.P.C. The incriminating material appearing against all accused were put to them. They denied the incriminating material and reported no defence. To prove the offence against A1 and A2 for the offence

U/sec. 427, 447, 506 r/w. 34 IPC the prosecution all together cited LW1 to LW10 but examined PW1 to PW6 and got marked ExP1 to ExP8 documents on their behalf. Accused got marked ExD1 document on his behalf. Heard the arguments.

4. Accused A1 and A2 were examined U/sec. 251 Cr.P.C., they totally denied the offence levelled against them. After closure of the prosecution evidence A1 and A2 were examined U/sec. 313 Cr.P.C., wherein they reiterated what they stated in their sec.

251Cr.P.C. examination. A1 disclosed that they purchased the said disputed site first in the year 2008 from one Srinivasa Murthy and while he was in possession of the same paying taxes, PW2 trespassed the said site with the help of rowdies forcefully and he also filed OS 1519/2010 for injunction on the file of III Addl. Junior Civil Judges Court,

Visakhapatnam. While he was in possession of the said property PW2 trespassed the said land with the help of rowdies. A2 stated that he has nothing to do with said disputed property any way. Complainant alleged nothing specifically against A2.

5. Though, both parties claim the title and possession over the property in dispute they did not file any land/house tax receipts to show their possession and enjoyment of the same. Accused did not examine himself or anybody on his behalf and he got marked ExD1/sale agreement document on his behalf.

6. Now the points for determination are:

1. Whether all the accused criminally trespassed the land of PW2 on that day?

2. Whether all the accused damaged Rs. 30,000/- of the property of PW2 on that day?

3. Whether all the accused threatened PW2?

4. Whether the prosecution has proved the guilt of the accused beyond all reasonable doubt for the offence U/sec. 427, 447, 506 r/w. 34 IPC?

Point No. 1 to 3:-

6. LW3- Mariserla Ananth Kumar, cited to speak corroborated the statement 4 C.C.131/2013, U/sec. 447, 427 & 506 r/w. 34 IPC of PW2 in all material aspects etc., facts is examined as PW1. PW1 deposed that he knows A1 and A2 and PW2 and they all used to visit the site located by the side of building under his construction there in Karasa, Main Road. PW1 further deposed that he came to know the incident though his watchman 5 or 6 years back that some people quarreled each other regarding house site possession and enjoyment. PW1 stated that police did not examine him in this case. PW1 stated that he can not say among whom the quarrel took place there. At this stage learned APP declared the said witness as hostile and cross examined him with permission of the court, wherein he denied having stated

before police as in ExP1. Thus, PW1 cited to speak that while PW2 is in possession and

enjoyment of the said site by the side of his (PW1) house but his evidence reveals that the said site in issue is in dispute regarding possession and enjoyment between accused and PW2.

7. LW1- Lakku Krishna Reddy, cited to speak to the contents of FIR, the offence committed by the accused and his filing of complaint through court on 16-09-2009 is examined as PW2. PW2 deposed that he owns a site of 350 Aq.yards in

Karasa in S.No: 120 and he purchased it on 18-02-2009 from one Savithramma and

R. Chittamma for Rs. 8,00,000/- and since then it is in his possession and enjoyment and he got arranged compound wall and obtained power connection of the site. PW2 further deposed that he appointed one V. Venkata Ramana watchman for the said site.

PW2 further deposed that A1 and A2 trespassed their site on 19-03-2009, at noon time.

Then he was in his site and A1 and A2 threatened him to go out of the site and removed a board set by them and A1 and A2 also caused damage of compound wall worth

Rs. 30,000/-. Then PW2 visited Kancharapalem PS., Visakhapatnam and presented a report but as police did not receive it he sent it through C.P., through RP but police did not take any action then he filed a private complaint. It is marked as ExP2. PW2 further deposed that he has sale deed showing that he purchased 350 yards for Rs. 8,00,000/- from Reddyplli Chitamma on 18-02-2009. The said certified copy of sale deed is marked as ExP3 consisting 27 pages. PW2 further deposed that he purchased the site and he erected a shed in the site removing the old shed there but the said shed was damaged due to recent cyclone. PW2 filed no piece of paper to show that he erected shed in the place of old shed and it was flown away due to recent cyclone. PW2 filed no land tax 5 C.C.131/2013, U/sec. 447, 427 & 506 r/w. 34 IPC receipts or house tax receipts of the scheduled property. In his cross examination PW2 stated that under ExP3 sale agreement he purchased 400 Sq.yards for Rs. 30,00,000/-.

ExD1 is said document. PW2 denied the suggestion that the boundaries shown in ExD1 and property purchased by A1 on 19-05-2009 are one and the same. A close perusal of documents ie., ExP3 and ExD1 shown the boundaries mentioned in the both documents are one and the same. Thus, the boundaries of the said documents and the evidence of

PW2 would show that both parties claim title and possession over a particular property.

In this case it is specific contention of PW2 that he is in possession and enjoyment of said property ever since he purchased. But PW2 did not file any documents like tax receipts, electrical bills etc., to establish that he is paying land/house tax of the scheduled property as owner of the same.

8. For the offence U.sec. 447 IPC, criminal trespass it is to be established that one has been in the possession and enjoyment of the said land with true (pakka) title and if anybody trespasses the same it amounts to criminal trespass. In this case there is no evidence from PW2 except certified copy of sale deed/ExP3 that he is in possession and enjoyment of the said site. The said fact has to be established by PW2 since accused also claims the same in this case. Apart from that PW2 admits that there are civil disputes between him and A1 with regarding the said disputed property. So, the said piece of evidence of PW2 would further strengthen the contention of accused that they are in possession and enjoyment of the said disputed site after they purchased it under ExD1.

9. It is another claim of PW2 that he approached civil court for declaration of his right and possession over the property but PW2 filed no piece of paper that he approached civil court for declaration over the right and title of the schedule property and for injunction against accused. Thus, PW2 oral evidence claiming the possession and title over the schedule property is not supported by any documentary evidence except sale deed/ExP3.

10. It is to be mentioned here that accused claims that he purchased the same property on agreement marked as ExD1. But the PW2 did not question ExD1 agreement in any court of law. Though, PW2 claims that he filed the civil suit for declaration over his right and title over the schedule property including possession he did 6 C.C.131/2013, U/sec. 447, 427 & 506 r/w. 34 IPC not file any piece of paper in support thereof. Therefore, the oral evidence of PW2 with regard to possession and title over the schedule property not acceptable particularly in the light of strong and specific claim of A1 of right and title over the schedule property including possession at the same time.

11. LW7- Bora Renukanadh Reddy and LW6- Kapil Charat Nak, are cited to speak about their witnessing the occurrence and the offence committed by the accused etc., facts and they are examined as PW3 and PW4 respectively. But they did not speak anything in favour of PW2. At this stage learned APP declared the said witnesses as hostile and cross examined them with permission of the court, where in they denied having stated before police as in ExP4 and ExP5.

12. LW10/ U. Thamma Rao, SI of police is examined as PW5 to speak about his investigation, arrest of A2 on 23-03-2010 and filing of charge sheet etc., facts.

PW5 deposed that on 16-12-2009 their CI received a complaint from court and he registered it as FIR under ExP6 and endorsed it to him (PW5) for conducting enquiry.

Then (PW5) proceeded to the scene of offence situated at Karasa, Survey No: 120 and prepared rough sketch ExP7. The date of offence and place of offence is undisputed. PW5 further deposed that he examined PW2, LW2- Benerjee and PW1 and recorded their statement in scene of offence. PW5 further deposed that on 20-12-2009, he again visited scene and examined Srinivas, PW3, PW4 and others and recorded their statements and on 23-03-2010, A2 surrendered in the PS and he arrested him and released him on station bail and on 26-03-2010 charge sheet was filed showing A1 was absconding. PW5 lastly sated that PW1, PW3 and PW4 stated before him as in ExP1 , ExP4 and ExP5.

13. As could be seen from the charge sheet the date of offence is 19-03-2009 but complaint was filed before PS on 16-12-2009. Thus, the complaint was filed roughly nine months after the date of offence but no delay for the filing of complaint is forthcoming from the charge sheet or in ExP2. According to PW5, defacto complainant/

PW2 did not file any document of title belonging to the said site in dispute. PW5 further says that they received injection order for said site. But no document is filed in this case.

It is clear from PW5 evidence that A1 purchased the said site prior to PW2. PW2 further disclosed that he did not find any marks of damage over the disputed site when he visited the scene of offence. It is one of the allegations of prosecution against accused 7 C.C.131/2013, U/sec. 447, 427 & 506 r/w. 34 IPC that they trespassed the schedule property and damaged some property like shed, compound wall. If it is so there must be marks of damages or debris of the property said to have been damaged. Admittedly, police did not seize and produce the piece of damages before the court. Prosecution filed some photos showing the scene of offence and property there on but the said photos are not marked as the police fails to produce negatives of the same. Thus, the evidence of PW5/IO., does not at all assertively establish that PW2 is in possession and enjoyment of schedule property and accused A1 and A2 trespassed the same without any right title and possession of the schedule property. As already stated though prosecution examined some independent witnesses to speak and support of their case about the damages, trespass and threat PW1, PW3 and

PW4 did not support the prosecution case.

14. LW8- P. Dharma Chandra Reddy, is examined as PW6 to prove the contents of his inquiry report vide LDC No: 287/2010/A, dated 12-03-201, etc., facts.

PW6 deposed that previously he worked as Tahasindar, Visakhapatnam urban from June 2009 to February, 2012. PW6 deposed that on requisition filed by the SHO,

Kancharapalem on 15-02-2010, he deputed his men to survey the site under S.No:

120/P, Marripalem area, in the presence of parties and also police on 005-10-2010 and he submitted his report on 09-10-2010.ExP8 is said certificate to the SHO concern. In his cross examination PW6 stated that both parties submitted their respective documents to him in respect of land under survey under ExP8. PW6 further deposed that when he was examined by police both parties presented their respective documents regarding their site they claim each other. PW6 opined that they are not supposed to decide the possession and title at this juncture. Thus, the evidence of PW6 Revenue Officer of concerned area the site in issue S. No: 120/P, is under dispute between parties here in regarding their title, possession and enjoyment. Therefore, the evidence of PW6 is of no avail for prosecution to conclude that by the date of offence PW2 is in exclusive possession and title over the schedule property. Therefore, the evidence of PW5 and PW6 particularly is not at all useful for prosecution that the defacto complainant/PW2 was in possession and enjoyment of site in dispute and accused trespassed the same who is said to have been caused damage to the schedule property in the site worth Rs. 30,000/- as alleged.

8 C.C.131/2013, U/sec. 447, 427 & 506 r/w. 34 IPC

15. PW5/IO did not state specifically that accused gave a threat to

PW2 not to enter in to the land in dispute. As already stated the witness PW1, {W3 and

PW4 cited to establish that there is threat from accused A1 and A2 against PW2 but as already stated, they remained hostile, for the reasons best known to them.

16. As per my opinion th evidence of some of the witnesses examined on behalf of prosecution would clearly indicate that there was civil dispute with regard to title and possession of the same site respectively. Claiming that they purchased some site from different owners. Because prosecution did not examine original vendors/owners of the property in dispute or file any relevant document in that regard. It is not at all proper and judicious to conclude that particularly which of the two parties purchase the said property at the relevant point of time and in possession thereon. In the absence of any such evidence I am unable to conclude that prosecution is able to establish the ingredients U.sec. 447, 427, 506 r/w. 34 IPC beyond all reasonable doubts.

POINT NO: 4

17. Sec. 447 IPC Criminal Trespass:- Whoever enters into or upon property in the possession of another, with intent to commit an offence or to intimidate, insult, or annoy any person in possession of such property. In this case there is no evidence that any of the accused trespassed the site of PW2 and damage the schedule property worth Rs. 30,000/-. Therefore, the charge for the offence U.sec. 447 IPC can not be said to have been established.

18. Sec. 427 IPC -Mischief causing damage to the amount of fifty rupees. Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished. There is no evidence from prosecution witnesses that there is damage worth of Rs. 30,000/- to shed and compound wall of the schedule property. Therefore, the charge for the offence U.sec. 427 IPC can not be said to have been established.

19. Se. 506 IPC- criminal intimidation. There is no evidence from prosecution that accused A1 and A2 intimidated to PW2. Therefore, the charge for the offence U.sec. 506 IPC can not be said to have been established.

20. Therefore, viewing from any angle the prosecution miserably fails to prove its case U.sec. U/sec. 447, 427, 506 r/w. 34 IPC, against accused beyond all 9 C.C.131/2013, U/sec. 447, 427 & 506 r/w. 34 IPC reasonable doubts.

21. In the result, accused A1 and A2 are found not guilty for the

offence U/sec. 447, 427 & 506 r/w. 34 IPC. Therefore, they are acquitted

U/sec. 255 (1) Cr.P.C., for the above said sections of law. Their bail bonds if any shall stand cancelled.

Sd:/ K. Rama RAJU,

SPECIAL MAGISTRATE,

SPECIAL MAGISTRATE COURT-II,

VISAKHAPATNAM.

Dictated to Personal Assistant and transcribed by her and pronounced by me in open court this

Wednesday, 23rd day of November, 2016. Sd:/ K. Rama RAJU,

SPECIAL MAGISTRATE,

SPECIAL MAGISTRATE COURT-II,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE No.

OF WITNESS EXAMINED FOR

Prosecution:-

1. PW1. Mariserla Ananth Kumar

2. PW2. Lakku Krishna Reddy, , de-facto complainant

3. PW3. Bora Renukandh Reddy

4. PW4. Kapil Charat Naik

5. PW5. U. Thama Rao, IO

6. PW6. P. Dharma Chandra Reddy, Tahasildar. Defence:-

Nil Documents marked For Prosecution:- 1)ExP1- sec. 161Cr.P.C., statement of PW1 2)ExP2- original complaint of PW2 3)ExP3- certified copy of registered sale deed (27 pages) 4)ExP4- sec. 161Cr.P.C., statement of PW3 5)ExP5- sec. 161Cr.P.C., statement of PW4 6)ExP6- Original FIR in Cr. No: 725/2009 by PW5 7)ExP7- rough sketch of scene of offence by PW5 8)ExP8- certificate given by PW6 to SHO by P W6

Defence:

1) ExD1- certified coy of sale agreement.

Sd:/ K. Rama RAJ,

SPECIAL MAGISTRATE,

SPECIAL MAGISTRATE COURT-II,

VISAKHAPATNAM.

10 C.C.131/2013, U/sec. 447, 427 & 506 r/w. 34 IPC

CALENDAR AND JUDGMENT

DISTRICT OF VISAKHAPATNAM

IN THE COURT OF SPECIAL MAGISTRATE - II, AT VISAKHAPATNAM

_____________________________________________________________

Date of offence: 19-03-2009 Explanation for delay & remarks, Filling of charge sheet: 26-04-2010 Received by transfer from Appearance of accused1&2:06-05-2015 III MMC, Visakhapatnam on Release on bail: --- 06/11/2013 which was numbered as Commencement of trial: 15-07-2015 C.C. 244/2010. Close of trail : 21-11-2016 Sentence or order: 23-11-2016 _____________________________________________________________

C.C. No. 131/2013: On the file of Special Magistrate Court II, at Visakhapatnam.

Name of the ComplainantState Represented by Sub-Inspector of Police, Kancharapalem Police Station, Visakhapatnam.

Name of the Accused A1- Rayapureddy Srinivasa Rao, S/o. Late Atakeswara Rao, aged 48 years, Reddy by caste, R/o. Q.No: 16-B, S. Kota Railway quarters, S.Kota, Vizianagaram District, Indian Railways Employee.

A2- Vemala Hari Krishna Reddy, S/o. Y Rami Reddy, aged 39 years, Reddy by caste, Dr.No: 58-9-118, New Karasa, NAD Kotha Road, Visakhapatnam, (working as a fitter in GVMC, Visakhapatnam)

Offence Punishable U/sec. 447, 427 & 506 r/w. 34 IPC,

FindingFound not Guilty

Sentence In the result, accused A1 and A2 are found not guilty for the offence U/sec. 447, 427 & 506 r/w. 34

IPC. Therefore, they are acquitted U/sec. 255 (1)

Cr.P.C., for the above said sections of law. Their bail bonds if any shall stand cancelled.

.

SPECIAL MAGISTRATE,

SPECIAL MAGISTRATE COURT-II,

VISAKHAPATNAM.

1C.C. 237/2015, U/sec. 138 NI Act

IN THE NAME OF SPECIAL MAGISTRATE COURT- II AT IMPROVISATIONAL

PRESIDING OFFICER: SIR KALINDI RAMA RAJU, B.Com., B.G.L.,

SPECIAL MAGISTRATE COURT II,

VISAKHAPATNAM

Friday, 18th day of November, 2016

C.C. No. 237/2015

(old C.C. No. 353/2015, of Honourable II ACMM, Visakhapatnam)

This case is coming on for final hearing before me on 15-11-2016, in the presence of Sri. KMM Srnivasa. Reddy, the advocate for complainant and Sri. Kandala Srinivasa Rao, Sri. Kandala Sarweswara Sastry and Sri. Prem Kumar, Advocates for accused, and having stood over for consideration till this day, this court delivered the following:

JUDGMENT

1The serial No. of the case C.C. No. 237/2015 2 The date of offence25-06-2013

Sathi Sathi Reddy, S/o. Satyanarayana Reddy, aged 32 years, 3Name of the Complainant Hindu, Business and cultivation, Dr.No: 1-45, Ramavaram, Anaparthi Mandal, Anaparthi PS Limits.

Tangeti Prasanthi, W/o. Vijayakumar, aged about 30 years, 4Name of the Accused Private employee, R/o. Dr.No: 38-11-98/5, Pattabhireddi Thota Main Road, Muralinagar, Visakhapatnam -7.

Dishonour of cheque for insufficiency of 5Offence funds punishable U/sec. 138 Negotiable Instrument Act

The plea of the accused & his 6Total Denial Examination, if any

1. This is a private complaint filed against the accused for the offence U/sec.

190(2) Cr.P.C., r/w. Sections U/sec. 138 & 142 of Negotiable Instrument Act, 1881 as amended by Act 66/1988 and this case is of 2015. This case was originally filed before the Honourable II Additional Chief Metropolitan Magistrate Court, Visakhapatnam, and after taking cognizance of the offence U/sec. 138 N.I. Act, against the accused the case was registered as C.C. 237/2015, and summons was issued to the accused and during the stage appearance of accused, this case was transferred to this court and renumbered as C.C. 237/2015. The brief complaint allegations are as follow:

2. The complainant submits in the complaint that accused borrowed an

Rs. 1,50,000/- on 15-01-2012, from the complainant for her family expenses and for 2C.C. 237/2015, U/sec. 138 NI Act discharging sundry debts, agreeing interalia to repay the said amount together with subsequent interest at the rate of 24 % PA and executed a demand promissory note on the even date. On repeated demands and requests made by the complainant accused issued a cheque bearing No: 009761, Rs. 1,50,000/-, for dated 10-06-2013, drawn on

State Bank of Travencore, Visakhapatnam branch, in favour of complainant towards part payment of the amount due under the promissory note, when complainant presented the said cheque for collection on 14-06-2013, through his banker i.e., SBI, Mahendrawada branch, the said cheque was returned unpaid with an endorsement “funds insufficient” on 25-06-2013. Then complainant got issued a registered lawyer notice date 08-07-2013 and it was served on accused but she did not pay the cheque amount or issue reply to the same. Hence, the complaint.

3. Basing on the material available on record, cognizance was taken under the offence U/sec. 138 Negotiable Instrument Act, against the accused. After appearance of accused before the court, copies of documents were furnished to him U/sec. 207 Cr.P.C.

The accused was examined U/sec. 251 Cr.P.C., on the substance of accusation. She denied the accusation and claimed to be tried. After closure of the prosecution evidence, the accused was examined U/sec. 313 Cr.P.C. The incriminating material appearing against the accused was put to him. He denied the incriminating material. To prove the guilt of the accused, complainant himself examined as PW1 and got marked ExP1 to

ExP5 documents on his behalf. After closure of the complainant side evidence the accused was examined under section 313 Cr.P.C. All the incriminating material evidence appearing against the accused was put to her. Accused denied the same and reported defence evidence but she did not examine herself or anybody on her side. Heard, the arguments.

4. The accused was examined U/sec. 251 Cr.P.C., wherein she completely denied any financial transaction under any pronote between her and complainant, but she took Rs. 15,000/- only from complainant who is running finance business and she repaid same at Rs. 7050/- per week and there remained Rs.5,000/- to be paid. After closer of the complainant side evidence, accused was examined U.sec 313 Cr.P.C., wherein she disclosed that he took only Rs. 15,000/- and the said amount was also repaid and that when she raised an amount from PW1, she gave empty cheque to the complainant and there was no balance by the date of cheque. Accused further disclosed 3C.C. 237/2015, U/sec. 138 NI Act that she did not receive any legal notice under ExP5 acknowledgment. Though accused wishes to examine some witness on her behalf she did not examine herself or anybody on her behalf.

5. The provisions of sec. 138 Negotiable Instrument Act clause (a) (b) and © to the provisions there of indicate that a cheque has to be presented to the Bank within a period of six months for the date of which it is drawn on with in a period of its validity, whichever is earlier. Clause (b) indicates that the payee or the holder in due course of cheque, has to make demand for the payment of said amount of money by giving a notice in writing to the drawer of the cheque with in 30 days of receipt of information by him/her from the bank regarding the return of the cheque as unpaid and clause © provides that if the drawer of cheque fails to make the payment of said amounts to payee or holder in due course of the cheque within 15 days of receipt of said notice, payee or holder of the cheque may file a complaint U/sec. 142 of the act in the manner as prescribed.

6. Now the points for determination are:

1. Whether the accused executed pronote/ExP1 for Rs.1,50,000/- as legally enforceable debt?

2. Whether the accused issued the cheque-ExP2, towards part payment of pronote as legally enforceable debt?

3. Whether the original of legal notice- ExP4, is issued by complainant in time and it was served ExP5?

4. Whether the complainant has proved the guilt of the accused beyond all reasonable doubt for the offence U/sec. 138 Negotiable Instrument Act?

Points No. 1 -

8. The complainant filed evidence affidavit U/sec. 145(2) NI Act, wherein he reiterated what he stated in his complaint. The complainant examined himself as

PW1, and got marked documents ExP1 to ExP5 on his behalf. Complainant filed written arguments on his behalf.

9. In his cross examination PW1 admits that he is not income tax assesee. PW1 denied the suggestion that accused has no necessity to borrow any amount. No suggestion is made to PW1 that empty pronote and empty cheque were taken from accused when she purchased any cooker or grinder from him as contended by accused. PW1 also denied the suggestion that no financial transaction took place between him and accused at any point of time. As per statement of accused 4C.C. 237/2015, U/sec. 138 NI Act

U.sec. 251Cr.P.C., examination she took Rs. 15,000/- from PW1 and PW1 runs finance business and she could not pay the balance amount of Rs. 5,000/- towards loan amount.

As per statement of accused in her sec. 313Cr.P.C., examination also she took Rs.

15,000/- only from PW1 and she paid back the said amount completely but this case is filed unfairly to gain wrongfully. It is also clear from the statement of accused U.sec.

313Cr.P.C., examination that there was no balance in her account when she gave cheque to PW1. It is settled principle of law that giving cheque without there being any balance for the cheque amount amounts as claim U.sec. 138 NI Act. It is suggested in his cross examination of PW1 that accused has no necessity to borrow any amount but accused in her sec. 313Cr.P.C., statement no where stated that she has no necessity to raise any amount from PW1. According accused in her sec. 251 and 313 Cr.P.C., examinations she raised loan from finance business of PW1 and could not pay the balance of Rs. 5,000/- to the complainant finance company. But, the accused did not examine herself and filed any documents in support of her contention that she borrowed some amount from finance business of PW1 and took Rs. 15,000/- only from him and paid back entire amount except Rs. 5,000/-. Accused did not examine herself or any body on her behalf in support of her contention that she raised Rs. 15,000/- only from PW1 finance business and Rs. 5,000/- only remained unpaid to him. It is another contention of accused that she did not execute any pronote like ExP1 in faovur of PW1 but there is no evidence or suggestion to PW1 that the signature on ExP1 pronote does not belong to accused. As already stated accused admits the signature on ExP2 cheque as that of her. Though accused states that she gave empty cheque to PW1 covered by ExP2. She did not produce any documents or oral evidence that the cheque ExP2 was empty and it was given to PW1 as security.

POINT NO:2

10. In this case complainant did not examine and produce the bankers to prove the presentation of ExP2 cheque and it was returned for want of sufficient funds under ExP3 in the account of accused. Accused admits that there is no balance in her account by the date of cheque. Non examination of bankers will not affect the case of complainant. In fact it is established principle of law that as per sec. 146 of Negotiable

Instrument Act, none examination of bank officials does not weaken the case of complainant, because, court shall in respect of every proceedings under this chapter, on 5C.C. 237/2015, U/sec. 138 NI Act production of banks slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved.

POINT NO:3

11. It is another contention of accused that she did not receive any demand notice covered by ExP4. It is the case of PW1 that he sent a demand notice ExP4 to the accused and it was served on her at her house address under ExP5 acknowledgment.

When compared the signature on ExP5 acknowledgment and other signatures on admitted documents of accused appear quiet similar to each other. ExP5 is acknowledgment containing the signature of accused obtained by postman after delivering the notice cover at her house address. Therefore, I believe that legal notice was delivered at the house of accused under ExP5 acknowledgment. Thus, I do not find any reason to accept the statement of accused that she did not receive any legal notice under ExP5 acknowledgment as per sec. 313Cr.P.C., examination of accused. It is also to be mentioned here that accused clearly admits in her sec . 313Cr.P.C., examination that there was no balance in her account by the date of cheque ExP2.

12. The learned advocate for accused submits that accused denies having taken loan from PW1. Therefore, non production of passbook or any other documents from PW1 to show that he lent amount to accused at the relevant point of time and complainant had that much of amount creates a doubt and the said doubt must be given in favour of accused.

(a) While arguing so relies up a reported decision 2016 A C 221 (KAR) in the lordship of Justice Pradeep D. Waingankar in Crl.A.No: 815/2010, dated 22-006-2015 between AM Govindegowda VS BV Ravi, with great respect, it is my opinion that the facts and circumstances of the instance case are not applicable to the facts and circumstances of the case on hand, because accused clearly admits her rasising loan from PW1 and giving empty documents like pronote and cheque to PW1. Therefore, capacity of complainant to lend a amount undebatable.

13. The learrned advocaes for accused further argues that PW1 fails to substantiate that there is debtor and creditor relationship between him and accused.

(b) While arguing so he relies upon a reported decision 2016 A CD 223 (KAR) in the lordship of Justice AV CHandrasekhar in Crl.R.P.No: 98/2012, dated 18-12- 6C.C. 237/2015, U/sec. 138 NI Act 2015 between Prabhakar Murty VS SG Shankaraiah.

(c) While arguing so relies up on a reported decision 2008(1) Supreme 306,

Supeme Court of India in the lordship of Justice SB Sinha & Justice Harjit Singh Bedi between Krishna Jahardhan Bhat VS Dattatraya G Hedg in Crl. A. No: 518/2006, decided on 11-01-2008.

(d) While arguing so he relies upon a reported decision 2007(7) Supreme 500 Supeme Court of India in the lordship of Justice SB Sinha & Justice Harjit Singh Bedi between K Prakashan VS PK Surenderan in Crl. A. No: 1410/2007, decided on 10-10-2007.

With great respect, it is my opinion that the facts and circumstances of the instance case are not applicable to the facts and circumstances of the case on hand, because accused herself admitedly stated in her sec. 313Cr.P.C., examination that she raised loan from PW1 who runs a finanice business and she discharged the said loan almost. But as already stated accused did not examine herslef or anybody or file any document to show that complainant runs any finance business in which accused was one of the members or other in the said busienss and raised a loan and later she repaid the same except Rs. 5,000/-. Accused failed to discharge her burden of disproving the case of complainant cast up on her U.sec. 139 NI Act. It is a common knowledge that if any finance business is started it must have acounts for finance/chit business and payments there for towrds installments. In this case accused did not file any paper or receipts in support of her contention that she took loan from PW1 as one of the members in the finance business said to have been run by PW1. The said contetnion has to be proved by the accused only. Thus, in my opinion accused is not able to prove that there was no debtor and creditor relationship between them. Accused is not examined herself or anybody on her behalf in support of her oral contention. Therefore, provision U.sec. 118

NI Act have not been affectively rebuted by accused. It is established principle of law that in these nature of cases U.sec. 138 NI Act the intial burden is cast up on complainant to prove his/her case. As already stated the evidence of PW1 is not effectively cross examined on the point that complainant ran finance business with his members including accused. So, the said contention that PW1 runs finance business as claimed by accused is not at all established from any point of view of accused.

14.It may be true that it is for the complainant to prove his case first.

7C.C. 237/2015, U/sec. 138 NI Act

In this case it isheld that the compliant is able to prove his burden to prove his case as laid down U.sec. 138 NIAct, whereas accused fails to discharge the burden cast upon her by U.sec. 139 NI Act by examining herself or anybody in support of her contention that she raised a loan and paid back the same to PW1. As per sec. 101 Indian Evidence Act,

Burden of proof lies on whoever desires any court as to any legal right dependent on the existence of facts which he asserts, must prove those facts but accused fails to disprove the cse of complainant.

POINT No. 4

15. The case of the complainant does not at all sustain any infirmity or illegality. The ingredients of Section – 138 (a to c) Negotiable Instrument Act are fully satisfied. The material evidence and other circumstances cumulatively probabalise the case of complainant beyond reasonable doubt. I do not find any reason to discredit the evidence of PW1 coupled with the documentary evidence ExP1 to ExP5. PW1 evidence is trust worthy, consistent and acceptable. On the other hand the defence taken by accused does not stand to any reason. The signatures on cheque/ExP2 are admitted by accused in her sec. 313 Cr.P.C., examination. Hence, the invariable presumption under 138 ( c )

NI Act is that pronote/ExP1 was executed for consideration and for discharge of said debt accused issued ExP2/cheque for a legally enforceable debt. In the light of above discussion I am fully satisfied that complainant has discharged initiate his duty of proving his case as contemplated by sec. 138 NI Act. Now the burden shifts to accused to disprove the case of PW1 by way rebuttal evidence U/sec. 139 NI Act.

16. Now duty shifts on the Accused to prove his burden to rebut the case under Section – 139 of N.I. Act. It shall be presumed unless the contrary is proved, that the holder of the cheque cheque of nature referred to in Section – 139 of N.I. Act for the discharge in whole or in part, or any debt or other liability. The Honourable supreme

Court made it explicitly clear that payment made in favour of holder of the cheque that he received for discharge of a debt or liability, must be drawn at once unless the contrary is proved by rebuttal evidences and all payments by cheque are prima facie indicative of the fact that they are issued to discharge an existing debt or liability. That is what is inferable under Section – 139 of the Act. Therefore, it is open to the accused to establish that payment of the amount by cheque is, in fact, a loan or other liability. If the Accused fails to discharge the burden of proof by rebuttal evidence, the necessary 8C.C. 237/2015, U/sec. 138 NI Act consequences immediately follow is that the cheque is issued for payment of a legally enforceable debt only. As per sec. 118(a) of NI Act, the presumption is until the contrary is proved that every Negotiable Instrument is made or drawn for consideration.

Failure of accused in giving reply to legal notice issued by complainant is one of the strong circumstances to draw an inference that accused borrowed an amount for

Rs. 5,00,000/- and executed ExP1 pronote in favour of PW1 and issued ExP2/cheque to discharge a part payment towards a legally enforceable debt. Accused did not examine herself or anybody to prove her contentions that she gave cheque to 3rd party. Therefore, accused is held to have failed utterly to prove her contentions by way of rebuttal evidence U/sec. 139 NI Act.

17. In the light of above discussion it is my considered opinion that complainant is able to prove the guilt of accused for the offence U.sec. 138 NI Act beyond all reasonable doubt.

18. In the result, the Accused is found guilty for the offence under Section – 138 of Negotiable Instrument Act. Therefore, she is convicted U/sec. 255 (2) Cr.P.C. for the above said section of law.

Sd:/ K. Rama Raju,

SPECIAL MAGISTRATE,

SPECIAL MAGISTRATE COURT-II,

VISAKHAPATNAM.

Dictated to Personal Assistant and transcribed by her and pronounced by me in the open court, this

Friday, 18th day of November, 2016.

Sd:/ K. Rama Raju,

SPECIAL MAGISTRATE,

SPECIAL MAGISTRATE COURT-II,

VISAKHAPATNAM.

Quantum of sentence:

Therefore, accused is sentenced to undergo simple imprisonment for six months and shall also to pay a fine of Rs. 10,000/-, in default simple imprisonment for three months.

The period of detention under gone by the accused during the investigation and trial if any shall be given set off U.sec. 428 Cr.P.C., and she can prefer an appeal against the conviction and sentence passed by this court on her within 30 days.

Sd:/ K. Rama Raju,

SPECIAL MAGISTRATE,

SPECIAL MAGISTRATE COURT-II,

VISAKHAPATNAM.

9C.C. 237/2015, U/sec. 138 NI Act

Pronounced by me in the open court dated this Friday,18th day of November,2016.

Sd:/ K. Rama Raju,

SPECIAL MAGISTRATE,

SPECIAL MAGISTRATE COURT-II,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE No.

OF WITNESS EXAMINED FOR

COMPLAINANT:-

1. PW1:- Sathi Sathi Reddy, Complainant

DEFENCE:-

Nil

Documents marked For

COMPLAINANT:-

1. Ex.P1- pronote dated 15-01-2012

2. Ex.P2- Ex.P5- cheuqe dated 10-06-2013 for Rs. 1,50,000/-

3. Ex.P3- cheque return memo dated 25-06-2013 with an endorsement “funds insufficient”.

4. Ex.P4- Office copy of legal notice dated 08-07-2013

5. Ex.P5- postal Acknowledgment dated nil from accused

DEFENCE:

NIL Sd:/ K. Rama Raju,

SPECIAL MAGISTRATE,

SPECIAL MAGISTRATE COURT-II,

VISAKHAPATNAM.

10C.C. 237/2015, U/sec. 138 NI Act

CALENDAR AND JUDGMENT

DISTRICT OF VISAKHAPATNAM

IN THE COURT OF SPECIAL MAGISTRATE-II, AT VISAKHAPATNAM

___________________________________________________________________ Date of offence:25-06-2013Explanation for delay & remarks, Date of Filling:20-05-2015 Received by transfer from Honourable Appearance of accused:31-03-2016 II ACMM, Visakhapatnam on 16-10-2015 Release on bail: --- which was numbered as CC.353/2015. Commencement of trail:28-07-2016 Close of trail :15-11-2016 Sentence or order : 18-11-2016 Accused paid the fine amount of Rs. 10,000/-. Sentence is suspended till 19-12-2016, on executing a bond for an amount Rs. 5,000/-, with one surety for a like sum as per order in Crl.M.P. 2380/2016, U/sec. 389 (3) Cr.P.C., dated 18-11-2016, and the accused is released as she executed the bond as ordered in the above said

Crl.M.P.2380/2016.

______________________________________________________________________ C.C. No. 237/2015: On the file of Special Magistrate Court II, at Visakhapatnam.

Name of the ComplainantSathi Sathi Reddy, S/o. Satyanarayana Reddy, aged 32 years, Hindu, Business and cultivation, Dr.No: 1-45, Ramavaram, Anaparthi Mandal, Anaparthi PS Limits.

Name of the Accused Tangeti Prasanthi, W/o. Vijayakumar, aged about 30 years, Private employee, R/o. Dr.No: 38-11-98/5, Pattabhireddi Thota Main Road, Muralinagar, Visakhapatnam -7.

OffenceDishonour of cheque for insufficiency of funds punishable U/sec. 138 Negotiable Instrument Act.

FindingFound Guilty

Sentence In the result accused is found guilty for the offence U/sec. 138 Negotiable Instrument Act. Therefore, she is convicted U/Sec. 255(2) Cr. P.C. for the above said section of law. Accused is sentenced to undergo simple imprisonment for six months and shall also to pay a fine of Rs. 10,000/-, in default simple imprisonment for three months. The period of detention under gone by the accused during the trial if any shall be given set off U.sec.428 Cr.P.C., and she can prefer an appeal against the conviction and sentence passed by this court on her within 30 days. Free copy of Calendar and Judgment is furnished to accused.

Sd:/ K. Rama RAJ,

SPECIAL MAGISTRATE,

SPECIAL MAGISTRATE COURT-II,

VISAKHAPATNAM.

11C.C. 237/2015, U/sec. 138 NI Act

Date: 18-11-2016

Complainant: Absent

Accused: Present

Judgmentpronouncedvideseparate Judgment:

In the result accused is found guilty for the offence U/sec. 138 Negotiable Instrument Act. Therefore, she is convicted U/Sec. 255(2) Cr. P.C. for the above said section of law. Accused is sentenced to undergo simple imprisonment for six months and shall also to pay a fine of Rs. 10,000/-, in default simple imprisonment for three months.

Spl. Magistrate-II, Visakhapatnam.

1C.C. 248/2013

IN THE NAME OF SPECIAL MAGISTRATE COURT- II, AT VISAKHAPATNAM

PRESIDING OFFICER: SRI KALIDINDI RAMA RAJU, B.Com., B.G.L.,

SPECIAL MAGISTRATE,

VISAKHAPATNAM

Wednesday, 14th day of December, 2016

C.C. No. 248/2013

(old C.C. No. 683/2011, Honourable III Metropolitan Magistrate Court, Visakhapatnam)

This case is coming on for final hearing before me on 07-12-2016, in the presence of Smt. M. Chiranjeevi Kumari, Asst. Public Prosecutor, for the state and Sri.M. Maheswara Rao, Advocate for accused and having stood over for consideration till this day, this court delivered the following:

JUDGMENT

1The serial No. of the case C.C. No.248/2013 2 The date of offence18-09-2011

State Represented by Sub-Inspector 3Name of the Complainant of Police, Kancharapalem Traffic Police Station, Visakhapatnam.

Yelagada Viswanath, S/o. Late Raju,21 years, SC by caste, 4Name of the Accused R/o. Dr.No: 40-31-15, Dharma Nagar Near Ramalayam, Visakhapatnam. Rider of motor cycle AP 31 M 9922.

5Offence Punishable U/sec. 338 I.P.C.

The plea of the accused & 6Total Denial his Examination, if any

1. The then Inspector of Police, Kancharapalem Traffic Police Station,

Visakhapatnam City, filed a charge sheet U/sec. 338 I.P.C., in Crime No. 317/2011, and this case is of 2011. This case was originally filed before the III Metropolitan Magistrate

Court, Visakhapatnam and after taking cognizance of the offence U/sec. 338 I.P.C., against the accused the case was registered as C.C. 683/2011, and summons was issued to the accused and during the stage of appearance of sec. 251 Cr.P.C., examination of accused, this case was transferred to this court on 06-11-2013, and re-numbered as

C.C. 248/2013. The brief charge sheet allegations are as follow:

2.It is submitted in the charge sheet that on 18-09-2011, at abut 2015

LW1-Gatta Demudu, started from his house at Dharmanagar to attend calls of nature at 2C.C. 248/2013

Sulab Complex and crossed the NH-5 road, and at about 08.30PM,while he was crossing the service road at Dhama Nagar, accused being the rider of Motor cycle AP 31 M 9922 while proceeding from Kancharapalem towards Tatichetlapalem, drove the same in a rash and negligent manner and dashed him at Dharmanagar junction and caused grievous injuries to his head left forearm, right ribs and he was shifted to KGH. LW7 recorded the statement of LW1- Gatta Demudu and registered the same as FIR in Cr.No: 317/2011,

U/sec. 338 IPC of said PS and during the course of investigation, visited the scene of offence examined LW1 to LW4 (Gatta Demudu, Mallavarapu Srinivasa Rao, Kari

Ewaramma and Gatta Murthy) and recorded their statements. LW5- Dr. P. Kusuma

Kumari, who treated the injured opined that the injuries to LW1- Gatta Demudu, are grievous in nature. LW6-AK Khan, AMVI, who inspected the accident vehicle opined that the accident was not due to any mechanical defects of the accident vehicle. On 12-10-2011, at 09.30AM., LW7- K. Appa Rao, SI of Police arrested the accused at said PS when he surrendered in the P.S., and sent him to judicial remand. On completion of the investigation LW7 K. Appa Rao, SI of Police, filed charge sheet against accused

U.sec. 338 IPC. Hence, the charge.

Seshu, IO, filed charge sheet against the accused U/sec. 338 IPC. Hence, the charge.

3. Basing on the material available on record, cognizance of case was taken for the offence U/sec. 338 I.P.C., against the accused and after appearance of accused before the court, copies of documents were furnished to him U/sec. 207 Cr.P.C.

The accused was examined U/sec. 251 Cr.P.C., on the substance of accusation. He denied the accusation and claimed to be tried. After closure of the prosecution evidence, the accused was examined U/sec. 313 Cr.P.C. The incriminating material appearing against the accused was put to him. He denied the incriminating material. To prove the offence against the accused U/sec. 338 I.P.C., the prosecution all together cited LW1 to LW7 but examined PW1 to PW4 only and got marked ExP1 and ExP2 on their behalf. Heard the arguments.

4. Accused was examined U/sec. 251 Cr.P.C., wherein he denied having caused the accident due to any rash and negligent act on his part while admitting himself as driver of the crime vehicle No: AP 31 M 9922 motor cycle. After closure of the prosecution evidence accused was examined U/sec. 313 Cr.P.C., wherein he reiterated 3C.C. 248/2013 what he stated in his sec. 251Cr.P.C., examination.

5. Therefore, prosecution need not examine anybody to establish that accused was driver of crime vehicle at the time of accident since accused admits the same in his sec. 251 & 313 Cr.P.C. examinations.

6. Now the points for determination are:

1. Whether the accused drove the crime vehicle in rash and negligent manner at that time and caused grievous injuries to PW1?

2. Whether the prosecution has proved the guilt of the accused beyond all reasonable doubt for the offence U/sec. 338 I.P.C.?

Point No. 1 :-

7. LW1- Gatta Demudu, is examined as PW1 to speak to the facts of the occurrence to prove his statement receipt of grievous injuries and etc., facts. PW1 deposed that about 4 years back the accident took place at about 08.30PM., then he was crossing the road at Dharmanagar, NH-5 road and one motor cycle came from

Tatichetlapalem side and dashed him, then he fell down and sustained injuries on his head and on his hands, people gathered there informed his family members about the accident then his wife came there and all of them shifted him to KGH for treatment but the motor cycle rider ran away after the dash and he (PW1) did not observe him them.

So, he can not identify the person who drove the crime vehicle on that day. As already stated accused admits himself as driver of crime vehicle at the time of accident while denying any rash and negligent act on his part in causing the accident and therefore, non identification of accused by PW1 is of no affect for prosecution case. Cross examination of PW1 is closed as nil rejecting the request of accused for time to cross examine the witness . Thus, the unchallenged evidence of PW1 would go to establish that accused is driver of crime vehicle at the time of accident. He did not speak about the manner of accident despite his presence as eye witness. Therefore, the evidence of PW1 is of no use for prosecution that the accident took place due to rash and negligent act of accused alone.

8. LW2- Mallavarapu Srinivasa Rao, is examined as PW2 to speak to the facts of the occurrence corroborating with PW1 etc., facts. PW2 deposed that the accident took place four years ago at Dharmanagar junction about 8.30PM., and he witnessed the accident, on that day PW1 was crossing the road to go tot Sanjeevayya 4C.C. 248/2013 colony, then one bike came at high speed from Tatichetlapalem and dashed against PW1 then PW1 fell aside and sustained head injury but he can not identify the driver of the motor cycle. The identification of accused is not disputed. In his cross examination PW2 stated that the injured and himself stay in one street and they are neighbours. PW2 denied the suggestion that no accident is seen by him. PW2 further denied the suggestion that had he seen the accident he would have told about the bike number and otherparticulars.Asalreadystatedaccusedhimselfadmitsthat he is the driver of crime vehicle at that time. Therefore, non speaking of crime bike number by PW2 can not be taken that as he has not witnessed the accident. According to

PW2 the accident took place behind him at a distance of 3 feet. Thus, his evidence would go to indicate that he noticed the injured and crime vehicle after the accident that took place behind him. Thus, there is prudent doubt arises whether PW1 could see the manner of accident that took place behind him on that day. It is a common knowledge that if any accident took place the surrounding people of the accident would generally pay attention as to what happened after hearing sound. Therefore, in my opinion the evidence of PW2 as eye witness can not be considered in favour of prosecution but as the benefit of doubt arises, the said benefit of doubt must be given in favour of accused as per established principle of law. Therefore, in my opinion the evidence of PW2 is also of no avail for prosecution to conclude that the accident took place due to rash and negligent act of accused alone.

9. LW3- Kari Eswaramma, is examined as PW3 to speak tot he facts of the occurrence corroborating with PW1, and she attended the injured etc., facts. PW3 deposed that the accident took place four and half years back at about 08.30PM., in the high way at Dharmanagar colony, Visakhapatnam, then she was at her house and some known person informed her about the accident, then she rushed to the spot and found his father (PW1) lying there with injuries to his head and she also found crime motor bike lying there. Accused is not disputing his driving the motor bike at that time of accident.

In her cross examination PW3 fairly disclosed that she did not see the accident actually and she came to know of it through somebody and she followed his father to KGH from the scene of offence. It is a fact that PW3 is relative to injured and she rushed to the spot and shifted the injured to the hospital. PW3 denied the suggestion that accused is 5C.C. 248/2013 not the driver of crime vehicle. The said suggestion gathers no weight having regard to the fact that accused himself admits that he was the driver of crime vehicle at the time of accident. PW3 also denied the suggestion that his father/injured did not sustain any injury in any accident. It is a fact that the injured/PW1 received injuries on that day at the place of accident on road but accused though the crime vehicle driver did not admit that he caused the accident and PW1 sustained injuries in the accident caused by him in negligent manner. It is for the prosecution to establish that the injured/PW1 sustained injuries in the accident due to rash and negligent act on the part of accused alone. The sole evidence of PW3 can not be considered to conclude that the accident took place due to rash and negligent act of accused alone because she was not eye witness to the accident as she came to the spot after the accident to lift the injured to hospital along with people present there.

10. LW6-AK Khan, AMVI, is examined as PW6 to prove the accident report. PW6 deposed that on 13-10-2011, he received a requestion from SHO,

Kancharapalem Traffic PS, Visakhapatnam requesting him to inspect the vehicle bearing

No: AP 31 M 9922, motor bike and he inspected the said vehicle at relevant PS on the same day and he found speedo meter cover damaged and on road test he found the brake system satisfactory and goo in condition. PW6 finally opined that the accident is not due to any mechanical defects of the said vehicle and accordingly, he issued MVI certificate/ExP2. PW6 evidence is not challenged in the cross examination and it is closed as nil. As already stated accused admits himself as driver of the same. It is also not the case of accused that the accident took place due to any mechanical defects of the motor bike i.e., crime vehicle.

11. The prosecution cited LW4- Gatta Murthy, to speak about the facts of the case and occurrence as eye witness but he was not produced and examined by prosecution in support their case as eye witness. The prosecution also did not produce

LW5/Dr. P. Kusuama Kumari, to prove the wound certificate of the PW1 and his treatment. PW1/injured deposed that he sustained injuries by falling on the road from his bike due to dash from crime vehicle of accused. The accused claims that the injured/PW1 did not receive any injuries due to dash by his vehicle on that day. In my opinion if the

Government Doctor cited as LW5 is examined to prove the fact or otherwise that the 6C.C. 248/2013 injuries of PW1 are due to dash of any vehicle or his falling ground from his vehicle. The

Government Doctor is proper person to speak about it. In my opinion non examination of the Government Doctor to speak about injuries is detrimental to claim of prosecution that the injuries on the body of PW1 were caused due to dash of crime vehicle and he was treated by Government Doctor of KGH, Visakhapatnam.

POINT NO:2

12. The prosecution did not examine LW7-K. Appa Rao, SI of Police, to speak to the registration of FIR, his investigation, arrest of accused and filing charge sheet etc., facts. Thus, the material documents such as FIR, Rough sketch, scene observation report and etc., remained un-marked. Non examination of IO is fatal to the prosecution case mainly because accused vehemently denies that he caused the accident by driving the motor cycle in a rash and negligent manner. As already discussed above the prosecution witnesses examined did not depose with any assertiveness that accused drove the crime vehicle in a rash and negligent manner and caused the accident on that day. As per prosecution the said eye witness stated before IO/LW7 that they witnessed the accident and it took place due to rash and negligent act of accused alone but the claim of prosecution is not established due to non examination of IO. As could be seen from the docket the prosecution agency did not produce IO despite opportunity afforded to them. It is pertinent to mention here that this court issued summonses to Official witnesses but prosecution agency did not even return summonses either served or unserved. Thus, there is very amount of inaction on the part of prosecution agency in producing witnesses including Officials. The prosecution did not make any endeavor to produce IO with any reopening petition for prosecution side evidence. The failure of prosecution agency to produce relevant and material witnesses helps accused rather to go scott free from the accusation levelled against him. It is to be mentioned here that this matter is of 2011 originally. Therefore, in my opinion non examination of IO definitely amounts to fatal to the prosecution case. Therefore, it is not proper and judicious to come to a conclusion that accident took place due to rash and negligent act of accused alone unless there is any cogent evidence from the prosecution side as discussed above. I further opinion that the responsible police officials concerned in not producing relevant witnesses shall be dealt with departmentally after due enquiry. There 7C.C. 248/2013 is no cogent evidence for the offence U.sec. 338 IPC, against accused as commanded by the act.

13. To impose criminal liability U.sec. 338 IPC, it is necessary that grievous injuries should have been the direct result of rash and negligent act of accused and that act must be the proximate result without the intervention of any other negligence. In this case there is no substantive piece of evidence that the grievous injuries to PW2, are direct result of rash and negligent act of accused alone. In this case accused admits himself as driver of crime vehicle but there is no acceptable evidence that accused caused the accident and the said injuries are caused by driving the crime vehicle in a rash and negligent act by accused. In this case there is no plausible and circumstantial evidence too, from prosecution witnesses about the manner of accident.

According to accused driver he did not cause accident but the victim hit his vehicle by going rash and negligent manner. If a person suddenly crosses the road the Bus driver however slowly he may be driving may not be in a position to save the accident.

Therefore, the bus driver can not be said to be negligent in a such cases. It is established principle of law that prosecution has to prove the negligent and the act of omission of accused and there is no contributory negligence on the part of victim in the said incident of accident. In this case there is no plausible and circumstantial evidence too, from prosecution witnesses about the manner of accident. I doubt that there is contributory negligence on the part of injured as claimed by accused.

14. In the result, accused is found not guilty for the offence

U/sec. 338 I.P.C. Therefore, he is acquitted U/sec. 255 (1) Cr.P.C., for the above said section of law. His bail bonds if any shall stand cancelled.

Sd:/ K. Rama Raju

SPECIAL MAGISTRATE,

SPECIAL MAGISTRATE COURT-II,

VISAKHAPATNAM.

Dictated to Personal Assistant and transcribed by her and pronounced by me in open court this

Wednesday, 14th day of December, 2016.

Sd:/ K. Rama Raju

SPECIAL MAGISTRATE,

SPECIAL MAGISTRATE COURT-II,

VISAKHAPATNAM.

8C.C. 248/2013

APPENDIX OF EVIDENCE No.

OF WITNESS EXAMINED FOR

Prosecution:- 1.PW1. Gatta Demudu, injured 2.PW2. Mallavarapu Srinivasa Rao, Eye witness 3.PW3. Kari Eswaramma 4.PW4. AK Khan, AMVI

Defence:-

Nil Documents marked For

Prosecution:-

1. ExP1- statement of PW1 to police, dated 18-09-2011

2. ExP2- MV report by PW4

Defence:

NIL

Sd:/ K. Rama Raju

SPECIAL MAGISTRATE,

SPECIAL MAGISTRATE COURT-II,

VISAKHAPATNAM.

9C.C. 248/2013

CALENDAR AND JUDGMENT

DISTRICT OF VISAKHAPATNAM

IN THE COURT OF SPECIAL MAGISTRATE - II, AT VISAKHAPATNAM

_______________________________________________________________________ Date of offence: 18-09-2011 Explanation for delay & remarks, Filling of charge sheet: 31-10-2011 Received by transfer from III MMC, VSKP on Appearance of accused : 06-06-2012 06-11-2013, which was numbered as Release on bail: --- C.C.683/2011. Commencement of trial: 09-05-2014 Close of trail : 07-12-2016 Sentence or order: 14-12-2016

C.C. No. 248/2013: On the file of Special Magistrate Court II, at Visakhapatnam.

Name of the ComplainantState Represented by Sub-Inspector of Police, Kancharapalem Traffic Police Station, Visakhapatnam.

Name of the Accused Yelagada Viswanath, S/o. Late Raju,21 years, SC by caste, R/o. Dr.No: 40-31-15, Dharma Nagar Near Ramalayam, Visakhapatnam. Rider of motor cycle AP 31 M 9922.

Offence Punishable U/sec. 338 I.P.C.

FindingFound not Guilty

Sentence In the result, accused is found not guilty for the offence U/sec. 338 IPC. Therefore, he is acquitted

U/sec. 255 (1) Cr.P.C., for the above said sections of law. His bail bonds if any shall stand cancelled.

.

Sd:/ K. Rama Raju

SPECIAL MAGISTRATE,

SPECIAL MAGISTRATE COURT-II,

VISAKHAPATNAM.