Smt. K. Sai Rama Devi B.A., L.L.M.,

1 S.C.No. 3 of 2012. I A.S.J.,

Dt. 08.02.2017. W.G., Dist., Eluru.

IN THE COURT OF SPECIAL JUDGE UNDER N.D.P.S. ACT-cum-I ADDITIONAL

DISTRICT AND SESSIONS JUDGE, WEST GODAVARI :: ELURU. Present: Smt. K.Sai Rama Devi, II Additional District and Sessions Judge, West Godavari, Eluru. FAC/I Additional Sessions Judge, West Godavari, Eluru.

Wednesday, the 07th day of February 2017.

N.D.P.S.SESSIONS CASE No. 03/2012.

Name of the Accused 1. Okkanti Vasu s/o Rama Rao, 30 years, and particulars:Kamma,GadepalliGunturupalli Village, Kapulakannaparthi Post, Sangem Mandal, Warangal District.

2. P.Siva Reddy s/o Mallareddy, 33 years, 6/1 Selva Street, 33 years, MdhurameenakshiNagar, Valasaravakkam, M.D.S., Chennai – 600 024.

3. Sai (absconded) (Case against A-2 and A-3 split up from this case and numbered as S.C.04 of 2013).

Charge:Under Section 20 (b) (ii) (c) of Narcotic Drugs and Psychotropic Substance Act, 1985.

Plea of the accused:Pleaded not guilty.

Finding of the judge:Found not guilty.

Sentence or Order: In the result,

A-1is found not guilty of the charge under

Section 20

(b) (ii) (c) of

Narcotic

Drugs and 2 S.C.No. 3 of 2012. I A.S.J.,

Dt. 08.02.2017. W.G., Dist., Eluru.

Psychotro pic

Substance

Act, 1985

and

accordingl y, A-1 is acquitted under

Section 235(1)

Cr.P.C., forthe said charge.

The property order in this case willbe passed in

S.C.No.4 of 2013, which is pending on the file ofthis

Court. The non- valuable and other unmarked property, ifany, shall be destroyed after 3 S.C.No. 3 of 2012. I A.S.J.,

Dt. 08.02.2017. W.G., Dist., Eluru.

appeal timeis over.

Surety bonds of surety persons and bail bonds of

A-1,if any, shall remain in force for a period of six months and shall stand cancelled after the expiry of six months period as contempla ted under

Section 437(A)

Cr.P.C.

Case against A-2 and A-3 split up from this case and numbered as S.C.04 of 2013. Counselforthe :Additional Public Prosecutor, W.G. District, prosecutionEluru.

Counsel for defence:Sri Ch.Rajendra Prasad, Advocate for A-1.

4 S.C.No. 3 of 2012. I A.S.J.,

Dt. 08.02.2017. W.G., Dist., Eluru.

This case is coming on 07.02.2017 for final hearing before me and, after hearing both sides and after perusing the material on record, having stood over for consideration till this day, the Court delivered the following:-

J U D G M E N T

1. P.W.4-Inspector of Police, Prohibition and Excise Station,

Jangareddigudem Circle has filed Charge Sheet against the accused 1 to 3 for the offence punishable under Section 8 (c) r/w 20 (b) (ii) (c) of Narcotic

Drugs and Psychotropic Substance Act, 1985 of Prohibition and Excise

Station, Jangareddigudem, in Crime No. 469/ 2008-2009.

2. The case of the prosecution, as revealed by the charge sheet is as follows:

3. A-1 and A-2 are close associates and they are habituated to transport and sell the Narcotic Drugs ‘Ganja’. On 18.09.2008 at about 10.00

A.M., during the route watch conducted by the officials of Vigilance and

Enforcement Department at Jeelugumilli Check post in the presence of P.W.1 and others, they noticed A-1 was in TATA Sierra Car bearing No.KA 03 N 209, transporting 307 KGs., of dry ’Ganja’ contained in 37 packets. Thereafter,

A-1 disclosed his identity and confessed that himself along with A-3 have purchased the dry ‘Ganja’ in agency areas of Narsipatnam of Visakhapatnam

District and Rampachodavaram of East Godavari District from 11.09.2008 onwards; that on 16.09.2008 A-2 who is the owner-cum-driver of the vehicle came from Warangal; that on 18.09.2008 at 5.00 A.M., that they all started from Gokavaram of East Godavari District with the load of ‘Ganja’ in the above vehicle; that on seeing the officials at Check post, A-2 and A-3 made good escape.

3.1. A-1 was detained and seized the contraband under the cover of

Mediatornama. P.W.8 drawn 74 samples of each 200 grams of ‘Ganja’ (two 5 S.C.No. 3 of 2012. I A.S.J.,

Dt. 08.02.2017. W.G., Dist., Eluru.

samples from each packet in total 37 x 200 grams) under the cover of 2nd

Mediatornama’ drafted at the scene of offence.

3.2. On the strength of the Mediators report, P.W.4 registered Crime

No.469 of 2008-09 under Sections 8 (c) r/w 20 (b) (ii) and (c) of The Narcotic

Drugs and Psychotropic Substances Act, 1985 of Jangareddigudem Police

Station on 18.09.2008 and forwarded A-1 for judicial custody.

3.3. Later, P.W.4 took up investigation, forwarded the samples to

Chemical Examiner, Kakinada; that the Chemical Examiner analyzed the same and send report by opining that the samples are dry ‘Ganja’. P.W.5 took up further investigation and after completion of investigation, laid the

Charge Sheet. Hence, the charge.

4. After observing all the formalities, this Court numbered the case as

Sessions Case No. 3 of 2012 since the offence under Sections 8 (c) and 20

(b) (i) of The Narcotic Drugs and Psychotropic Substances Act, 1985 is exclusively triable by this Court. Since A-2 and A-3 were flee away from the legal clutches, case against them was split up from this case and numbered as S.C.04 of 2013.

5. On appearance of the accused No.1 copies of the case documents were furnished to him as required under Section 207 Cr.P.C., and upon perusing the material on record and after having heard both sides, my learned predecessor brother has framed charge under section 20 (b) (ii) (c) of The Narcotic Drugs and Psychotropic Substances Act, 1985 against him.

The charge was read over and explained to A-1 in Telugu, for which A-1 pleaded not guilty and claimed to be tried.

6. The prosecution in order to prove the charge examined P.Ws. 1 to 5 and got marked Exs.P.1 to P.4 and M.Os.1 and 2. On behalf of defence none was examined and no document was marked.

6 S.C.No. 3 of 2012. I A.S.J.,

Dt. 08.02.2017. W.G., Dist., Eluru.

7. The learned Assistant Public Prosecutor has given up the evidence of L.W.1-Kalidindi Jankiramaraju; and L.W.3-Bolagani Ramakrishna.

8. After closure of prosecution evidence, A-1 was examined under

Section 313 Cr.P.C. with regard to the incriminating material available on record, A-1 termed the incriminating evidence as false and claimed innocence.

9. The learned Additional Public Prosecutor appearing for the prosecution vehemently argued that the prosecution proved the complicity of A-1 along with A-2 and A-3 in transporting the ‘Ganja’ which is the

Narcotic Drug and Psychotropic Substance for wrongful gain. P.W.4 the

Inspector of Police along with staff and mediators arrested A-1 while transporting the contraband ‘Ganja’ and A-1 gave his confessional statement

before the mediators and the same was reduced into writing. A-2 and A-3

were absconded at the time of arresting of A-1 and still they are not apprehended, hence, case against them was split up from this case and separately numbered.

10.He further submitted that examining independent Panch witnesses P.W.1, P.W.2 the V.R.O., and P.W.4 Sub Inspector of Police, the

Prosecution has established beyond all reasonable doubt that M.Os.1 and 2 were seized from the possession of A-1 and F.S.L., Report shows that the seized property is nothing but ‘Ganja’ a prohibited narcotic substance. He further submitted that A-1 is a habitual offender and he shall be convicted without any leniency. Therefore, he urged to convict A-1 without any leniency.

11.On the other hand, the learned counsel for the accused argued that A-1 has nothing to do with the alleged offence; that for the statistical purpose A-1 was falsely implicated by the Police in this case. He further submitted that the very search and seizure itself is vitiated as it is against the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985.

7 S.C.No. 3 of 2012. I A.S.J.,

Dt. 08.02.2017. W.G., Dist., Eluru.

Thus there is a clear violation Section 50 of Narcotic Drugs and

Psychotropic Substances Act. Another violation of the statutory is that under Section 57 Narcotic Drugs and Psychotropic Substances Act the

Police Officer who affected the arrest has to forward a report of the search and seizure to his official in superior within 48 hours. But the evidence of

P.W.4 does not show that he sent the report of the search and seizure to his official in superior. He further submitted that there is no corroboration in evidence of prosecution witnesses. The evidence of P.W.1, P.W.2 and P.W.4 disclosed the fact about the appraisal right of the accused under Section 50 of N.D.P.S. Act before seizing the property under Ex.P-2. P.W.2 has admitted that neither in Ex.P-1 or in Ex.P-2 there is no reference about the apprising right of the accused under Section 50 of the Act. Therefore, the alleged seizure of contraband and arrest of the accused in the presence of mediators is nothing but cock and bull story. Since the prosecution utterly failed to prove the guilt of the accused beyond all reasonable doubts, he prayed that

A-1 be acquitted of the offences charged. In support of his contention, the learned Counsel for accused submitted relevant case Laws.

Now the point that arises for consideration is whether the prosecution could prove the charge under Section 20

(b) (ii) (c) of Narcotic Drugs and Psychotropic Substance Act, 1985, beyond all reasonable doubt?

P O I N T:

12. The arraignment against A-1 to A-3 is that on 18.09.2008 at about 10.00 A.M., during the route watch conducted by the officials of Vigilance and Enforcement Department at Jeelugumilli Check post in the presence of

P.W.1 and others, they noticed A-1 was in TATA Sierra Car bearing No.KA 03

N 209, transporting 307 KGs., of dry ’Ganja’ contained in 37 packets.

Thereafter, A-1 disclosed his identity and confessed that himself along with

A-3 have purchased the dry ‘Ganja’ in agency areas of Narsipatnam of 8 S.C.No. 3 of 2012. I A.S.J.,

Dt. 08.02.2017. W.G., Dist., Eluru.

Visakhapatnam District and Rampachodavaram of East Godavari District from 11.09.2008 onwards.

13. P.W.1–V.Thrimurthula Raju, has testified that on 18.09.2008 at about 10.00 A.M., while he was proceeding on a motorcycle from Jeelugumilli – Aswararao Pet; that when he reached near the Check post of Jeelugumilli, he noticed the vehicular checking being conducted by the officials of several Departments; that he was called by the V.R.O., of Jeelugumilli and informed to him that the officials caught hold of the ‘Ganja’ in a TATA Siera vehicle bearing No.KA 03 N 2091; that he noticed one person sat in the vehicle and came to know that the remaining two other persons fled away that A-1 is the said person who sat in the said vehicle.

14. P.W.1 further deposed that the Vigilance Officials in their presence opened 37 packets of ‘Ganja’ which were kept in the back seat of the said vehicle; that each packet was in different weights approximately 7, 9 and 10 KGs respectively; that when the Vigilance Officials weighed 37 packets of contraband, the total weight comes to 307 KGs., that 37 samples were drawn from 37 bags and identity slips were affixed on them after seizing; that mediators report was also got drafted by P.W.2; that Ex.P-1 is the mediators report dated 18.09.2008 drafted at 10.00 A.M., signed by

L.W.1-Janaki Rama Raju and L.W.3-Bolagani Ramakrishna. In the cross- examination P.W.1 has admitted the Panch slips affixed on the sample packets do not contain his signature so also on 37 bags. P.W.1 further admitted that on 37 sample packets and bags, the Crime NO.469/2008-2009

dated 18.09.2008 was mentioned. According to P.W.1, he can read and writ.

P.W.1 in further spell of cross-examination has admitted that Ex.P-1 does not contain any recitals that the accused has apprized his right to check in the presence of the Magistrate or a Gazetteed Officer. Except on Ex.P-1, his signatures were not obtained on any document by the Vigilance Officials.

9 S.C.No. 3 of 2012. I A.S.J.,

Dt. 08.02.2017. W.G., Dist., Eluru.

15. P.W.2-G.V.N.Jogiraju is the V.R.O., of Jeelugmilli testified that on 18.09.2008 he was present at the time of Vigilance and Enforcement

Officials conducting route check of the vehicle at Forest Check Post,

Jeelugumilli; that on suspicion, they stopped the TATA Siera Company vehicle bearing No.KA 2091 which was coming from Jangareddigudem –

Aswarao Pet; that when they stopped the vehicle, they noticed two persons ran away from the vehicle by opening its door; that one person sat in the said Car; that A-1 is the said person; that the officials of Vigilance secured the presence of P.W.1, Janaki Rama Raju and Ramakrishna to act as mediators; that when questioned, A-1 disclosed his identity particulars and further revealed that he is indulging in purchase of contraband from

Warangal and Visakhapatnam District and used to sell the same in Shine

Area of Bombay with the active connivance of Mallesh and others.

16. A-1 further informed that on 10.09.2008 he traveled in Godavari

Express, A-3 boarded in the said train at Khammam and both of them got down at Tuni; that from 11.09.2008 to 18.09.2008 he along with A-2 and A-3 collected huge quantity of ‘Ganja’ from Rampachodavaram – Narsimpatnam areas; that on 16.09.2008 A-2 came in TATA Siera vehicle from Warangal –

Rampachodavaram; that on 18.09.2008 at about 5.30 A.M., he along with A- 2 and A-3 packed the collected ‘Ganja’ into 37 bags and loaded the same in

TATA Siera vehicle and proceeded to Warangal; that when they reached near Jeelugumilli Check post, the Vigilance Officials caught hold of him along with the vehicle, A-2 and A-3 escaped.

17. It is the further evidence of P.W.2 that in the presence of mediators, 37 bags were weighed and found the bags are about 307 KGs., that when the officials searched A-1, they found the driving licence of A-2 in his pocket; that he drafted Ex.P-1 Mediators Report, contraband was seized and handed over to the Prohibition and Excise officials; that himself,

A-1 along with Tahsildar, Vigilance and Enforcement officials signed on Ex.P- 10 S.C.No. 3 of 2012. I A.S.J.,

Dt. 08.02.2017. W.G., Dist., Eluru.

1 mediators report; that the Excise Officials prepared Panchanama by drawing 37 samples weighing about 200 grams each in duplicate from 37 bags of ‘Ganja’; that the weighing machine was brought from nearby shop belonging to one Razaaq, identified slips were affixed on those packets and bags; that a separate mediators report was drafted for drawing samples from 37 bags on 18.09.2008 at 2.30 P.M., that Ex.P-2 is the mediators report; that M.O.1 is the 74 sample packets of ‘Ganja’ M.O.2 is the 37 polythene blue colour bags of ’Ganja’; and that the Excise Officials arrested

A-1, seized TATA Siera vehicle and the contraband and brought them to

Station. In the cross-examination it is elicited that in Exs.P-1 and P-2 there is no reference about the apprising of the rights of A-1 under Section 50 of the Act; that the accused has got right to be searched in the presence of the

Gazetteed Officer or before the Magistrate. Ex.P-1 does not contain the particular name of the officer, who recovered 37 bags from the vehicle and conducted proceedings. P.W.2 further admitted that Ex.P-2 also does not contain the names of the officer who drew samples and sealed the packets; that P.W.2 cannot say who conducted the Panchanama; P.W.2 also expressed his ignorance that he does not know whether the Test Memo or letter of advise are kept in the sample packets. P.W.2 further admitted that the Vigilance and Enforcement Officials have not issued any requisition to

Tahsildar to act as Gazetteed Officer.

18. P.W.3 is one Shaik Razaaq, running chicken shop in Jeelugumilli.

According to P.W.3, on 18.09.2008 the officials of several departments caught ‘Ganja’ and requested him to arrange weighing machine; that the officials obtained his weighing machine for weighing ‘Ganja’ which is in 34 bags and total weight is 307 KGs; that the officials collected 200 grams of ‘Ganja’ from each bag and kept in 74 small packets; and that the weighing of ‘Ganja’ and taking the ‘Ganja’ in small packets was done in his presence and he signed on Ex.P-2. In the cross-examination, it is elicited that Ex.P-2 was 11 S.C.No. 3 of 2012. I A.S.J.,

Dt. 08.02.2017. W.G., Dist., Eluru.

drafted at 2.30 P.M., that the weighing process was conducted only for one time under Ex.P-2. P.W.3 expressed his ignorance that he does not know whether the alleged ‘Ganja’ was weighed in between 10.30 A.M., to 2.30

P.M., by weighing the packets. He has not signed on the identity slips affixed on polythene bags.

19. P.W.4-N.Nageswararo is the Sub Inspector of Police, Prohibition and excise Station, Jangareddigudem, at the time of alleged offence.

According to his version, on 18.09.2008 in between 11.0 A.M., and 12.00

Noon he received a phone call from the Vigilance and Enforcement Officials who are performing their duties at Jeelugumilli Check Post and informed that they caught hold of ‘Ganja’ at Forest Check post of Jeelugumilli and asked him to come that place; that by the time he reached there, the Vigilance and Enforcement Officials were drafting mediators report; that about 1.00

P.M., the Vigilance and Enforcement Officials handed over Ex.P-1, the accused and seized ‘Ganja’ to him; that he found there were 37 polythene bags contained with ‘Ganja’; that he drawn two samples each weighing 200 grams from each 37 polythene bags under the cover of Ex.P-2; that identity slips were affixed to sample packets and polythene bags by giving numbers and sealed all the packets; that he seized TATA Siera Vehicle; that he arrested the accused and brought him to Station along with the seized ‘Ganja’ and vehicle.

20. P.W.4 further testified that he registered a case in

P.R.No.469/2008-2009 under Section 8 (c) r/w 20 (b) (ii) and C of N.D.P.S.

Act; that Ex.P-3 is the First Information Report; that the accused was forwarded to the learned Judicial Magistrate of I Class, Jangareddigudem for judicial custody; and that the seized samples were sent to Chemical Analyst.

In the cross-examination, P.W.4 admitted that no separate inventory was prepared while taking the recovered property from the Vigilance and

Enforcement Officials. Ex.P-2 does not contain the method and mode of 12 S.C.No. 3 of 2012. I A.S.J.,

Dt. 08.02.2017. W.G., Dist., Eluru.

packing of the samples. He has not recorded the statement of the officer who caught the accused and ‘Ganja’. P.W.4 further admitted that Ex.P-1 does not contain the name of the officer who conducted the proceedings.

P.W.4 has not obtained the signatures of Vigilance and Enforcement Officials on Ex.P-2. In Ex.P-1 there is no mention about the description of the contraband so also in Ex.P-2. In Ex.P-1 it was mentioned that the contraband was weighed even before 2.30 P.M. In Ex.P-2 it was mentioned that the property was again weighed and samples were drawn from the polythene bags.

21. When the polythene bags were shown to the witness P.W.4 admitted that the polythene bags do not contain the identification numbers.

He cannot say from which of the 37 polythene bags the sample packets under M.O.1 were drawn. P.W.4 cannot say whether the seals on M.O.2 belong to him or not. He has not prepared any letter of advise or test memo.

In Ex.P-2 the facsimile of seal affixed on samples are not mentioned. In Ex.P- 2 there is no mention about the description of the seal affixed to sample packets. P.W.4 further admitted that on all the sample packets, there is no seal of the laboratory. There is no seal of the laboratory on the sample packet bearing No.7/2. In Ex.P-2 it was mentioned that the accused was apprehended by him even prior to drawing of the samples. In Ex.P-2 it was mentioned that the Panchanama was concluded at 3.30 P.M. In Ex.P-1 at last page, he mentioned that a case was registered at 4.30 P.M.

22. In further course of cross-examination P.W.4 has admitted that in

Ex.P-1 or Ex.P-2 the weight of the individual bag is not mentioned. On M.Os.1 and 2 identity slips the crime number was mentioned. In Ex.P-2 there is no mention that the samples were drawn by him personally. As per Ex.P-2, the

Tahsildar and V.R.O., were acted as mediators. P.W.4 has not appraised the accused about the existing right under Section 50 of N.D.P.S. Act before seizing the property under Ex.P-2.

13 S.C.No. 3 of 2012. I A.S.J.,

Dt. 08.02.2017. W.G., Dist., Eluru.

23. P.W.5-N.V.Ramanacharyulu, the Inspector of Police, Prohibition and Excise Station has testified that he took up further investigation in this case; that he made efforts to trace out A-2 and A-3 and filed a memo permitting him for destruction of seized ‘Ganja’ and disposal of the vehicle; that Ex.P-4 is the chemical analysis report; that pending arrest of A-2 and A- 3, he laid the Charge Sheet. In the cross-examination, it is elicited that along with the charge sheet the register as to how the samples were handled form the date of seizure till ending to laboratory is not filed. No seal was affixed after handing over the samples and contraband to him. P.W.5 received only 74 samples from his predecessor. P.W.5 expressed his ignorance whether the case in Cr.No.189 of 2014-2015 of Kuduvllaphur

Police Station registered against A-1 was ended in acquittal.

24. The entire case of the prosecution revolved upon the search and seizure of the contraband from the possession of A-1 under the cover of

Exs.P-1 and P-2 which are mediator reports. The learned defence Counsel mainly attacked the case of the prosecution with respect to the procedural aspect followed by the Panch witnesses at the time of arrest of the accused and seizure of the property. A perusal of the entire material on record, it is clear that place of arrest in this case, even according to the prosecution and as per the evidence of P.Ws.1 to 4, at the Check post of Jeelugumilli which is a public place. Public place includes any public conveyance, hotel, shop or other place intended for use by, or accessible to, the public. It is explained like that in explanation to Sec.43 of Narcotic Drugs and Psychotropic

Substances Act.Therefore, Section 43 of Narcotic Drugs and Psychotropic

Substances Act deals with manner of seizure and arrest by an officer authorized in Sec.42 of Narcotic Drugs and Psychotropic Substances Act.

25. Section 43 of Narcotic Drugs and Psychotropic Substances Act deals with manner of seizure and arrest by an officer authorized in Section 42 of Narcotic Drugs and Psychotropic Substances Act.Section 43 of Narcotic 14 S.C.No. 3 of 2012. I A.S.J.,

Dt. 08.02.2017. W.G., Dist., Eluru.

Drugs and Psychotropic Substances Act authorized officers mentioned in

Sec.42 of Narcotic Drugs and Psychotropic Substances Act to seize in any public place any Narcotic Drugs or Psychotropic Substances or any article which has reason to believe may furnish evidence of the commission of an offence punishable under the Act.

26. Section 43 of Narcotic Drugs and Psychotropic Substances Act authorizes Officers named in Sec.42 of Narcotic Drugs and Psychotropic

Substances Act to detain and search any person who has reason to believe to have committed an offence punishable under the Act and if such person has any Narcotic Drugs or Psychotropic Substances in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.

27. The infirmity in the present case on hand is about the non- compliance of the rigorous statutory provisions. As per Section 42 (2) of the Act when an officer takes down any information in writing under sub-

Section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. P.W.4 was cross-examined with regard to the compliance of this provision, he stated that he is empowered officer under Section 42 of the

N.D.P.S. Act. He further admitted that he has not appraised the accused about the existing right under Section 50 of N.D.P.S. Act before seizing the property under Ex.P-2. P.Ws.1 and 2 also admitted that Ex.P-1 does not contain any recital that the accused being apprized of his right to check in the presence of the Magistrate or a Gazetted Officer. Therefore, in the absence of any Prosecution evidence about the compliance with mandatory provisions presumption would be that the Provisions under Section 42 were not complied with.

28. In this regard reliance is placed on Abdul Rashid Ibrahim

Mansuri Vs. State of Gujarat, AIR 2000 SC 821. As I have already 15 S.C.No. 3 of 2012. I A.S.J.,

Dt. 08.02.2017. W.G., Dist., Eluru.

adverted supra the Prosecution has not produced the information which was reduced into writing by P.W.2. As P.W.1 stated in the cross-examination that he reduced the information into writing, he ought to have filed the information before the Court as per the mandatory requirement under

Section 42 (2) of the Act. But P.W.2 has not followed the provision. He also did not send the copy of the information to his immediate official superior.

Mere informing to official superior in phone is not sufficient compliance of this provision. When Section 42 (2) of the Act mandates that copy of the information has to be delivered to the immediate official superior within 72 hours after recording of the information. It is a compliance of the Section 42 (2) of the Act.

29. Section 50 (5) of Narcotic Drugs and Psychotropic Substances Act denotes thatafter the search is conducted under Sub Section 5 of Section 50 of Narcotic Drugs and Psychotropic Substances Act the Officer shall record the reasons for such belief which necessitated such search and within seventy two hours sent a copy thereof to his immediate official superior.

There is no evidence on record to show that a search proceedings i.e., copy of Ex.P-1 to his immediate official superior within 72 hours. In the absence of any evidence to that effect the only inference that can be drawn is that

P.W.2 has not complied with this provision.

30. Section 50 of Narcotic Drugs and Psychotropic Substances Act says that if the arrested person requires that search shall be made before

Gazetted Officer, the arrested person must be taken to the nearest Gazetted

Officer or to the nearest Magistrate. Admittedly, as discussed earlier, the essential ingredients are absent in the present case on hand.

31. In Ankireddy Ramana Reddy Vs. State of A.P., 2005 (3) ALT (Crl.) 176 (A.P.), it was held that though a crime was registered on the basis of a Panchanama no material was placed by P.W.4 to show that any report was sent to the superior officers regarding the seizure of Ganja and 16 S.C.No. 3 of 2012. I A.S.J.,

Dt. 08.02.2017. W.G., Dist., Eluru.

arrest of the Appellant. The absence of such report is a clear indication that

P.W.4 failed to comply the requirements of Section 57 of the Act.

Therefore, the trial is vitiated on this account also. Thus in this case all the three necessary legal requirements are not complied with by P.W.4-

Investigating Officer.

32. Section 57 of Narcotic Drugs and Psychotropic Substances Act is another provision which was alleged to have been violated by P.W.4-

Investigating Officer. Section 52 of the Act denotes about the procedure sending report of arrest and seizure to his superior officer. The Provision under Section 57 is not mandatory but contradictory and non-compliance which is not fatal and may not ipso facto violate trial or conviction. But non- observance of requirements of section shall have a bearing on appreciation of evidence regarding the arrest of the Accused and seizure of the article.

33. Taking into consideration the non-observance of the Section 42 (2), 50 (5) and 57 of the Narcotic Drugs and Psychotropic Substances Act, the admissions made by P.Ws.1, 2 and 4 discussed in the precedent Paras, I have no hesitation to come to conclusion that the Prosecution has miserably failed to establish the guilt of A-1 beyond all reasonable doubt and A-1 is entitled for acquittal on the ground of benefit of doubt.

IN THE RESULT, A-1 is found not guilty of the charge under Section 20 (b) (ii) (c) of Narcotic Drugs and Psychotropic Substance Act, 1985 and accordingly, A-1 is acquitted under Section 235 (1) Cr.P.C., for the said charge. The property order in this case will be passed in S.C.No.4 of 2013, which is pending on the file of this Court. The non-valuable and other unmarked property, if any, shall be destroyed after appeal time is over.

Surety bonds of surety persons and bail bonds of A-1, if any, shall remain in force for a period of six months and shall stand cancelled after the expiry of six months period as contemplated under Section 437 (A) Cr.P.C.

17 S.C.No. 3 of 2012. I A.S.J.,

Dt. 08.02.2017. W.G., Dist., Eluru.

Typed to my dictation by the Stenographer on computer system, corrected and

pronounced by me in open Court, on this the 08th day of February 2017.

II ADDITIONAL SESSIONS JUDGE,

WEST GODAVARI, ELURU.

FAC/ SPECIAL JUDGE UNDER N.D.P.S. ACT-CUM-

I ADDITIONAL SESSIONS JUDGE,

WEST GODAVARI, ELURU.

APPENDIX OF EVIDENCE:

WITNESSES EXAMINED:

FOR PROSECUTION:

P.W.1-Kusampudi Trimurthy Raju. P.W.2-G.V.N.Jogi Raju. P.W.3 -Shaik Razak. P.W.4-N.Nageswara Rao. P.W.5-N.V.Ramanacharyulu.

FOR DEFENCE :- N O N E.

EXHIBITS MARKED

FOR PROSECUTION:

Ex.P.1/18.09.2008:Mediators Report. Ex.P.2/18.09.2008:2nd Mediators Report. Ex.P.3/18.09.2008:First Information Report. Ex.P.4/30.10.2008:Analysis Report.

FOR DEFENCE:- -N I L-.

MATERIAL OBJECTS MARKED

M.O.1: 74 Sample packets of Ganja.

M.O.2: 37 Blue Colour bags.

Sd/- K.Sai Rama Devi,

II ADDITIONAL SESSIONS JUDGE,

WEST GODAVARI, ELURU.

FAC/ SPECIAL JUDGE UNDER N.D.P.S. ACT-CUM-

I ADDITIONAL SESSIONS JUDGE,

WEST GODAVARI, ELURU.

Copies to:

1. The Registrar (Judicial) High Court of Judicature at Hyderabad for the State of Telengana and the State of Andhra Pradesh, Hyderabad (through C.D)

2. The District Collector, West Godavari District, Eluru.

3. The Superintendent of Police, West Godavari, Eluru.

4. The Director of Prosecution, Hyderabad.

5. The Addl. Public Prosecutor, West Godavari, Eluru.

// T.C.F.B.O.// 18 S.C.No. 3 of 2012. I A.S.J.,

Dt. 08.02.2017. W.G., Dist., Eluru.

Superintendent, I Addl.Session Judge’s Court, W.G., Eluru.

TABULAR FORM ANNEXED TO THE JUDGMENT IN S.C.No.3/2012 ON THE FILE

OF SPECIAL JUDGE UNDER N.D.P.S. ACT-cum-I ADDITIONAL DISTRICT AND

SESSIONS JUDGE, WEST GODAVARI, ELURU UNDER RULE 354 OF THE

CRIMINAL RULES OF PRACTICE.

1. Sessions Case No. and :S.C.No: 3/2012. P.R.C.No. with name of the committal Court

2. Name of the Police :ProhibitionandExciseStation, Station and Crime No.Jangareddigudem, Cr.No. 469/ 2008- 2009.

3. Description of the :1.Okkanti Vasu s/o Rama Rao, 30 Accused:years, Kamma, Gadepalli Gunturupalli Village,KapulakannaparthiPost, Sangem Mandal, Warangal District.

2.P.Siva Reddy s/o Mallareddy, 33 years, 6/1 Selva Street, 33 years, MdhurameenakshiNagar, Valasaravakkam, M.D.S., Chennai – 600 024.

3.Sai s/o not known.

(Case against A-2 and A-3 separated and numbered as S.C.4 of 2013 since NBWs are pending)

4.Date of Offence:18.09.2008. Complaint:18.09.2008. Apprehension:18.09.2008. Release on bail: -- NBWs pending against A-2 and A-3. Committal :-- Commencement of trial:24.08.2015. Close of Trial:12.11.2015. Sentence or Order:08.02.2017.

In the result, A-1 is found not guilty of the charge under Section 20

(b) (ii) (c) of Narcotic Drugs and Psychotropic Substance Act, 1985 and accordingly, A-1 is acquitted under Section 235 (1) Cr.P.C., for the said charge. The property order in this case will be passed in S.C.No.4 of 2013, which is pending on the file of this Court. The non-valuable and other unmarked property, if any, shall be destroyed after appeal time is over.

Surety bonds of surety persons and bail bonds of A-1, if any, shall remain in force for a period of six months and shall stand cancelled after the expiry of six months period as contemplated under Section 437 (A) Cr.P.C.

5. Explanation for the delay. : No avoidable delay

Sd/- K.Sai Rama Devi,

II ADDITIONAL SESSIONS JUDGE,

WEST GODAVARI, ELURU.

FAC/ SPECIAL JUDGE UNDER N.D.P.S. ACT-CUM-

I ADDITIONAL SESSIONS JUDGE,

WEST GODAVARI, ELURU.

// T.C.F.B.O.//

Superintendent, I Addl.Session Judge’s Court, W.G., Eluru.

1 Crl. A.No.61 of 2012 II A.S.J.,

Dt. 28-12-2016 W.G., Dist., Eluru.

IN THE COURT OF II ADDITIONAL DISTRICT & SESSIONS JUDGE, WEST

GODAVARI :: ELURU.

Present: Smt.K.Sai Rama Devi

II Additional Sessions Judge, West Godavari, Eluru.

Wednesday, the 28th day of December, 2016

CRIMINAL APPEAL No. 61/2012

From what Court the:IIAdditionalJuniorCivilJudge, appeal is preferredTadepalligudem.

Number of the case in:C.C.No.717/2006 that Court Number of the Appeal:Criminal Appeal No.61/2012 Name and description of:Baisetti Satyanarayana, S/o Baisetti Rama the AppellantRao, Male, Hindu, 2-163 Bazar Road, Opp. PasalaAchaiahHouse,Pentapadu, W.G.District. Name and description of:1)Sree Chilaka Veera Venkata Naga the respondent.Ramalinga Sreedhara Rao, represented by G.P.A. Holder, Smt Chilaka Anuradha, W/o Telagareddi Suresh, 40 years, Female, Teacher, Subbarao Peta, Tadepalligudem. 2)State represented by its P.P., W.G., Eluru. The sentence and law: Accused is found guilty for the offence under which it waspunishable under section 138 of N.I.Act and imposed in the Lowerhe is convicted under section 255(2) of CourtCr.P.C. and sentenced him to undergo Simple Imprisonment for a period of two years and also sentenced him to pay a fine of Rs.3,000/- (Rupees Three Thousand only) indefault to undergo Simple Imprisonment for a period of three months. Whetherconfirmed,: modified or reversed,

REVERSED

and if modified the modification Date of presentation:28-02-2012 Date of filing:28-02-2012 Date of bail bond: --- Date of appearance :25-04-2012 Date of hearing:26-12-2016 Date of Judgment :28-12-2016

The appeal coming on 26-12-2016, for hearing before me, upon perusing the petition of appeal and record of the evidence and proceedings, and upon duly considering the same after hearing the arguments of appellant/accused; and of for the 1st respondent and of

Additional Public Prosecutor appearing for the State/respondent and

2 Crl. A.No.61 of 2012 II A.S.J.,

Dt. 28-12-2016 W.G., Dist., Eluru.

having stood over for consideration till this day, this Court delivered the following:

J U D G E M E N T

1.This criminal appeal by the appellant is directed against the judgment dated 07.02.2012, passed in C.C. No. 717 of 2006 by the

II Additional Junior Civil Judge, Tadepalligudem, West Godavari District, convicting him for the offence under Section 138 of the Negotiable

Instruments Act, 1881 and sentencing him to suffer simple imprisonment for a period two years and to pay fine of Rs.3,000/, in default to undergo simple imprisonment for a period of three months.

2.The appellant is the accused, while the respondent is the complainant. For convenience sake, the parties shall be referred to as per their status in the C.C. before the trial Court.

3.The case of the complainant, as averred by him in the complaint, filed through his GPA holder is as follows: – The accused and his family constitutes Hindu joint family. The accused is engaged in finance and other business. On 30.10.2003, the accused and his wife jointly borrowed an amount of Rs.3,00,000/- from her for family necessities and investment in business by executing promissory note, agreeing to repay the borrowed amount with interest at the rate of 24% per annum. On repeated demands made by her, the accused issued cheque dated 10.04.2006 for Rs.2,00,000/- drawn on Andhra

Bank, Pentapadu, towards part payment of principal and interest, with a request to present the same after two months by promising to arrange payment by them. Accordingly, she presented the cheque in

Andhra Bank on 11.09.2006 bank for encashment, but the same was returned with an endorsement “account closed”. Thereafter, she got issued statutory legal notice to the accused and his wife on 3 Crl. A.No.61 of 2012 II A.S.J.,

Dt. 28-12-2016 W.G., Dist., Eluru.

11.09.2006 demanding them to pay the amount covered by the cheque. The notice sent to the accused returned with postal endorsement “addressee left without instructions and whereabouts not known”. The accused filed Insolvency Petition No. 28 of 2006 on the file of the Hon’ble Senior Civil Judge Court, Tadepalligudem, to adjudicate him as insolvent. In the said I.P., the accused has shown her as creditor and while admitting the debt and that he is due and liable to clear the debt, falsely alleged that he gave blank promissory notes and ten blank cheques. Hence, the complaint, by the complainant.

4.The II Additional Junior Civil Judge, Tadepalligudem, upon satisfying for itself, took cognizance of the case against the accused for the offence punishable Section 138 of the Negotiable Instruments

Act, and issued summons.

5.On appearance of the accused, the learned trial Court furnished copies of the documents as required under Section 207

Cr.P.C. to the accused.

6.The accused was examined under Section 251 Cr.P.C. and charge under Section 138 of the Negotiable Instruments Act, 1881 was framed. When the charge was read over and explained to the respondent in Telugu, as required under Section 240(2) Cr.P.C., he pleaded not guilty and claimed to be tried.

7.The complainant to establish his case examined P.Ws. 1 and 2 and marked Exs. P1 to P9. After closure of evidence of the respondent, the accused was examined under Section 313 Cr.P.C. The incriminating evidence adduced by the complainant was read over and explained to the accused in Telugu. The accused having understood the same, denied the incriminating evidence and got examined 4 Crl. A.No.61 of 2012 II A.S.J.,

Dt. 28-12-2016 W.G., Dist., Eluru.

himself as D.W.1 and marked Exs. D1 to D4.

8.The learned trial Court upon appreciating the evidence adduced by the respondent/complainant, found the accused guilty of the offence under Section 138 of the Negotiable Instruments Act, 1881 and convicted him of the said offence and sentenced him to suffer simple imprisonment for a period of two years and to pay fine of

Rs.3,000/-, in default, to suffer simple imprisonment for a period of three months.

9.Questioning the correctness of the said judgment, the appellant/complainant filed this criminal appeal.

10.Heard the learned counsel for the appellant/accused and the learned counsel for the respondent/complainant. Perused the judgment under appeal and also the evidence adduced by the parties

before the trial Court, which is available on record.

11.Now the point that arises for consideration in this appeal is:

Whether the trial Court was not justified in

convicting and sentencing the appellant/accused for

the offence punishable under Section 138 of the

Negotiable Instruments Act, 1881?

The Hon’ble Supreme Court in Kusum Ingots & Alloys Ltd. V.

Pennar Peterson Securities Ltd.; (2000) 2 SCC 745, explained the ingredients of the offence under Section 138 N.I. Act as under:- "10. On a reading of the provisions of Section 138 of the NI Act it is clear that the ingredients which are to be satisfied for making out a case under the provision are:

(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability;

(ii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(iii) that cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the account is insufficient to 5 Crl. A.No.61 of 2012 II A.S.J.,

Dt. 28-12-2016 W.G., Dist., Eluru.

honour the cheque or that it exceeds the amount arranged to be paid

from that account by an agreement made with the bank;

(iv) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;

(v) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.

The Hon’ble Supreme Court further held as follows:

Once the cheque relates to the account of the accused and he accepts and admits the signature on the said cheque then initial presumption as contemplated under Section 139 of the Act has to be raised by the Court in favour of the complainant. The presumption referred to in Section 139 of the Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption. What is required to be established by the accused in order to rebut the presumption is different from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttable evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the Court.

12. From the settled law, as referred above, it is evident that initial burden is on the complainant but the presumption raised in favour of the holder of the cheque must be kept confined to the matters covered thereby. The presumption raised does not extend to the extent that the cheque was not issued for the discharge of any debt or liability which is not required to be proved by the complainant since it is essentially a question of fact and it is the defence which has to prove that the cheque was not issued towards discharge of a lawful debt.

13. Keeping in view the above settled principles of law, this

Court will re-appreciate the evidence adduced by the complainant in exercise of its appellate power so as to come to the conclusion whether or not the trial Court, in the facts and circumstances of the case, was justified in convicting and sentencing the accused for the offence 6 Crl. A.No.61 of 2012 II A.S.J.,

Dt. 28-12-2016 W.G., Dist., Eluru.

under Section 138 of the Negotiable Instruments Act, as indicated in the judgment assailed in this appeal.

14. P.W.1 is the sister of the complainant. She is the GPA holder of the complainant, who examined himself as P.W.2. P.W.1 filed the complaint, representing the complainant as his GPA holder. P.W.1 deposed that P.W.2, who is the actual complainant, gave power of attorney in her favour only after the accused filed I.P. The question whether complaint under Section 138 of the Negotiable Instruments

Act, 1881 can be filed through power of attorney holder, was considered by a three-Judge Bench of the Hon’ble Supreme Court in

A.C. Narayanan v. State of Maharashtra; AIR 2014 SC 630, and the legal position was clarified as under:

“(i) Filing of complaint petition under Section 138 of NI Act through power of attorney is perfectly legal and competent.

(ii) The Power of Attorney holder can depose and verify on oath

before the Court in order to prove the contents of the complaint.

However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions.

(iii) It is required by the complainant to make specific assertion as to the knowledge of the power of attorney in the said transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case.

(iv) In the light of Section 145 of NI Act, it is open to the

Magistrate to rely upon the verification in the form of affidavit filed by

the complainant in support of the complaint under Section 138 of the NI Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant or his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the NI Act.

(v) The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person”.

15. The above decision was referred to by the Hon’ble Supreme

Court in Vanita S. Rao v. Essen Corporate Services Pvt. Ltd.; 2015 (1) ALD (Crl.) 1 (SC), and it was held that attorney holder can sign complaint and initiate proceedings under Section 138 of the 7 Crl. A.No.61 of 2012 II A.S.J.,

Dt. 28-12-2016 W.G., Dist., Eluru.

Negotiable Instruments Act, 1881. In view of the settled law, this Court holds that the complaint under Section 138 of the NI Act, filed by P.W.1, as attorney holder of P.W.2, is maintainable.

16. P.W.1 deposed that the accused and his wife jointly borrowed an amount of Rs.3,00,000/- on 30.10.2003 from the complainant for family necessities and investments in business, agreeing to repay the same with interest at the rate of 24% per annum and executed Ex.P1-promissory note and the certified copy of which is marked as Ex.P2 because the original promissory note was filed in the suit for recovery of money. That she was present when the accused borrowed the amount from the complainant under Ex.P2, which was executed at the Sub-Registrar’s Office. She further deposed that after repeated demands, the accused issued Ex.P3-cheque dated 10.04.2006 drawn of Andhra Bank, for Rs.2,00,000/- towards discharge of part payment of the principal and interest, with request to present the same after two months. However, in her cross-examination, she stated that again after expiry of two months, the accused against asked for time and in the meanwhile filed I.P. No. 28 of 2006 on the file of Senior Civil Judge Court, Tadepalligudem, certified copy of the same is marked as Ex.P7. As requested by the accused, she presented the cheque for encashment on 07.09.2006, but the same was returned vide Ex.P4-endorsement “funds are insufficient”. Thereupon, the complainant got issued Ex.P5-statutory legal notice dated 11.09.2006 calling upon the accused to make the payment covered by Ex.P2- cheque, but the postal cover was returned vide Ex.P6. As the accused disputed that he did not borrow any amount from the complainant on 30.10.2003, P.W.1 in her further chief-examination deposed that the complainant paid the amount of Rs.3,00,000/- covered by Ex.P2- 8 Crl. A.No.61 of 2012 II A.S.J.,

Dt. 28-12-2016 W.G., Dist., Eluru.

promissory note from out of the amount of Rs.9,90,000/-, which P.W.2 withdraw from his bank account on 27.10.2003, and to evidence the withdrawal she filed Ex.P8-certified copy of bank statement of the complainant. She further deposed that in all she filed five cases, and that the amount involved in all the five cases is Rs.13,50,000/- which

P.W.2 paid to the accused.

17. P.W.2 who is the complainant testified his case as averred by P.W.1 in the complaint filed by her on his behalf as his GPA holder and also as deposed by her in her chief-evidence.

18. Though the chief-evidence of P.Ws.1 and 2 received corroboration with each other, the accused who examined himself as

D.W.1 deposed that for the last 10 years, he has been in finance business and that he borrowed various amounts from creditors agreeing to pay interest ranging from 18% to 30% per annum. He paid interest regularly to his creditors, and when he sustained loss, he filed

I.P. No. 28 of 2006. The complainant requested him to circulate his money for interest and issued cheque No. 0012748 of HDFC Bank,

Andheri, Mumbai, dated 22.07.2004 for Rs.4,75,000/- and he encashed the same. At the time of issuing the cheque, the accused took his signatures on 11 blank promissory notes and 11 cheques and on

Rs.50/- non-judicial stamps and blank papers. He paid interest to the complainant regularly at the rate of 42% per annum till the end of the year 2005. In the I.P. filed by him, he has shown the complainant as 16th defendant stating that he owes him an amount of Rs.10,00,000/- i.e. principal amount of Rs.4,75,000/- and interest of Rs.5,25,000/-. He further deposed that he paid more interest than the principal to the complainant. The complainant on coming to know that he filed I.P., created Ex.P2-promissory note, which is not supported by any 9 Crl. A.No.61 of 2012 II A.S.J.,

Dt. 28-12-2016 W.G., Dist., Eluru.

consideration. He also filled up the signed blank cheque and created

Ex.P3 and presented the same in the bank, knowing fully well that there is no money in his account. The complainant did not have money to lend as at that period, he had purchased different properties under Exs. D2 to D4, but their marking was opposed as they were not received in evidence in the suit filed by the complainant for recovery of the amount covered by the suit promissory note.

19. The evidence of D.W.1 shows that he sustained loss in his money lending business and he filed I.P., and that he owes money to

P.W.2 as arrayed him as 16th defendant. D.W.1 did not dispute that

Ex.P3-cheque which was dishonoured belongs to him. However, it is his case that the complainant requested him to circulate his money on interest in his finance business and gave cheque for Rs.4,75,000/-, and at that time, the complainant had taken 11 signed blank promissory notes and 11 blank cheques. He specifically denied that he issued

Ex.P3-cheque for discharge of legally enforceable debt. The further case of the accused is that the complainant on coming to know that he filed I.P. against him and others, and that there was no money in his bank account, created Ex.P3-cheque by making use of one of the blank signed cheques issued by him and with ante-date presented the same for encashment. No doubt, the accused filed I.P., but the pendency of the same, is not a bar to initiate proceedings under Section 138 of the

Negotiable Instruments Act. The proceedings under I.P., are to declare the petitioner as insolvent, while the proceedings under Section 138 of the Negotiable Instruments Act, are for dishonor of cheque issued by the accused. Even if the accused is declared insolvent in the I.P., the same will not absolve the liability of the accused arising out of the offence under Section 138 of the Negotiable Instruments Act.

10 Crl. A.No.61 of 2012 II A.S.J.,

Dt. 28-12-2016 W.G., Dist., Eluru.

20. The accused denied having received the amount covered by

Ex.P2-promissory note and having issued Ex.P3-cheque for discharge of the amount covered by Ex.P2 promissory note. The complainant, admittedly, obtained Ex.P9-decree for recovery of money against the accused in respect of the transaction covered by Ex.P2-promissory note. Though P.W.1 deposed that she was present when the accused borrowed money from the complainant under Ex.P2-promissory note, which was executed at the Sub Registrar Office, but P.W.2, who is the complainant in his evidence stated that he lent money to the accused and his wife under Ex.P2-promissory note, and that that by the date

Ex.P2-promissory note was executed, he was working in Mumbai.

However, in view of Ex.P9-decree, this Court will not go into the validity of the transaction under Ex.P2-promissory note. But this Court will proceed to decide whether the accused issued Ex.P3-cheque for legally enforceable debt covered by Ex.P2-promissory note. P.W.2 deposed that he was present when the accused gave Ex.P3-cheque dated 10.04.2006 and that at the time of giving Ex.P3-cheque, the accused requested him to present the same after two months, but P.W.1 deposed that she does not remember whether P.W.2 was present in

Tadepalligudem on 10.04.2006, the date mentioned in Ex.P3-cheque and she does not remember whether Ex.P3-cheque was issued to her or her brother. P.W.1 in her cross-examination admitted that she presented Ex.P3-cheque in the bank, but it does not contain her signature and date on the back side of it. She admitted that they did not obtain any endorsement on Ex.P2-promissory note that Ex.P3- cheque was issued towards part payment of debt covered by Ex.P2- promissory note. P.W.2 admitted that he did not obtain any letter from the accused that Ex.P3-cheque was issued by him for discharge of the 11 Crl. A.No.61 of 2012 II A.S.J.,

Dt. 28-12-2016 W.G., Dist., Eluru.

amount due under Ex.P2-promissory note. This evidence of P.Ws. 1 and 2 creates a doubt in the mind of the Court whether Ex.P3-cheque was at all issued by the accused for the debt covered by Ex.P2- promissory note.

21. According to the accused, the complainant knowing that he filed I.P. and that there are no funds in his account, created Ex.P3- cheque from out of the cheques given by him, and presented the same in the bank. P.W.1 in her cross-examination admitted that on 07.09.2006, she received notice in the I.P. filed by the complainant, though she denied that she saw the contents of the I.P. She also admitted that she presented Ex.P3-cheque on 07.09.2006, though she denied that she presented the same knowing that there are no funds in the account of the accused. Though P.W.2 also denied that after the accused filed I.P., he created Ex.P3-cheque with ante-date and presented the same for encashment, but from the evidence let in by the complainant, it is evident that the complainant presented Ex.P3- cheque on the date when he received notice in the I.P., which clearly suggests that the complainant became panicky and presented the cheque, for encashment.

22. The complainant to show that he was working as Software

Engineer and was having financial capacity to lend the same to the accused, filed Ex.P8-bank statement of account. A perusal of the same discloses that three days before the alleged date of lending, the complainant withdrew an amount of Rs.9,00,000/-, but mere withdrawal of the amount, is not sufficient evidence to hold that the said amount was paid to the complainant by the complainant. Though the accused as D.W.1 in his evidence marked Ex.D1 to D4 to say that the complainant had purchased the properties covered by Exs. D1 to 12 Crl. A.No.61 of 2012 II A.S.J.,

Dt. 28-12-2016 W.G., Dist., Eluru.

D4 from out of the money withdrawn by him from the bank, and that no money was paid to him, the fact remains, D.W.1 in his evidence admitted that Exs. D1 to D4 do not stand in the name of the complainant. It is the case of the accused as P.W.2 in his evidence admitted that he did not reflect the payment of the money to the accused in his income tax returns, an inference can be drawn that he did not pay the money to the accused. If the complainant had not disclosed about the payments in his income tax returns, he will be liable for the consequences for such non-disclosure. However, it is for the complainant to establish that he had paid the amount to the accused from out of the money which he withdrew from the bank.

23. According to the accused, Ex.P5-statutory legal notice is not served on him and the legal notice issued is invalid and cannot be said to be a notice in the eye of law. In Harman Electronics Pvt. Ltd. vs.

National Panasonic India Pvt. Ltd.; (2009) 1 SCC 720, it was held as under:

It is one thing to say that sending of a notice is one of the ingredients for maintaining the complaint, but it is another thing to say that dishonor of a cheque by itself constitutes an offence. For the purpose of proving its case that the accused had committed an offence under Section 138 of the Negotiable Instruments Act, the ingredients thereof are required to be proved. What would constitute an offence is stated in the main provision. The proviso appended thereto, however, imposes certain further conditions, which are required to be fulfilled

before cognizance of the offence can be taken. If the ingredients for

constitution of the offence laid down in provisos (a), (b) and (c) appended to Section 138 of the Negotiable Instruments Act, are intended to be applied in favour of the accused, there cannot be any doubt that receipt of a notice would ultimately give rise to the cause of action for filing a complaint. As it is only on receipt of the notice that the accused at his own peril may refuse to pay the amount. Clauses

(b) and (c) of the proviso to Section 138 therefore, must be read together. Issuance of notice would not by itself give rise to a cause of action but communication of the notice would. A Court derives jurisdiction only when the cause of action arises within its jurisdiction. The same cannot be conferred by any act of omission or commission on the part of the accused. A distinction must also be borne in mind between the ingredients of an offence and commission of a part of the offence. While issuance of a notice by the holder of a negotiable instrument is necessary, service thereof, is also 13 Crl. A.No.61 of 2012 II A.S.J.,

Dt. 28-12-2016 W.G., Dist., Eluru.

imperative. Only on a service of such notice and failure on the part of the accused to pay the demanded amount within a period of 15 days thereafter, the commission of the offence completes. Giving of notice, therefore, cannot have any precedent over the service.

24. A perusal of Ex.P6-legal notice cover with acknowledgement shows that it was posted on 12.09.2006 and on the next day i.e. on 13.09.2006, it was returned with postal endorsement on the postal cover “left without instructions whereabouts not known”. The accused filed I.P. with the address to which Ex.P6-legal notice cover was sent, but it is curious to note that the same was returned with postal endorsement as mentioned above. The sequence of events shows that the legal notice is dated 11.09.2006. It was sent to the accused on 12.09.2006 and it returned unserved on the next day i.e.13.09.2006. This Court is unable to believe that service of notice on the accused would be completed within a span of three days.

25. However, even if it is held that Ex.P6-legal notice was validly served on the accused, duty is cast on the complainant to establish that the legal notice sent to the accused is valid. The evidence of P.Ws.1 and 2 shows that the cheque was presented for encashment on 07.09.2006. Though it is stated that on the same day, the cheque got dishonoured, but Ex.P5-legal notice which was got issued to the accused and his wife on 12.09.2006, shows that it does not contain the number of the cheque and when it got dishonoured.

P.W.1 in her evidence admitted that in Ex.P5-notice, the details of

Ex.P3-cheque are not mentioned. She further stated that in all the cases filed by them under Section 138 of N.I. Act, a common notice was issued to the accused and that the notice dated 11.09.2006 returned unserved. P.Ws.2 claimed that the legal notice was sent to both the accused and his wife as both of them jointly borrowed the amount for their joint family business, but P.W.1 admitted that no 14 Crl. A.No.61 of 2012 II A.S.J.,

Dt. 28-12-2016 W.G., Dist., Eluru.

notice was given to the wife of the accused. Though P.Ws. 1 and 2 stated that after issuing cheque dated 10.04.2006, the accused requested the complainant to present the cheque after two months and thereafter again requested two months time, but they admitted that in the legal notice got issued to the accused, though it mentioned that the accused requested him to present the cheque after two months, it is not mentioned that the accused again requested them time. Apart from this evidence, the complainant did not mention the cheque number and the date on which the cheque got dishonoured either in Ex.P3-legal notice nor in the complaint nor in the chief- affidavits filed by both P.Ws. 1 and 2. Thus from the evidence of P.Ws.

1 and 2, it is evident that Ex.P5-legal notice is bereft of details, such as cheque number and the date on which it got dishonoured. In view of the same, this Court holds that the legal notice issued by the complainant to the accused is invalid and not valid in the eye of law.

26. Though the complainant obtained a Ex.P9-decree in O.S. No.

177 of 2006 on the file of the Senior Civil Judge Court, Tadepalligudem, for the amount covered by Ex.P2-promissory note, but from the evidence of P.Ws. 1 and 2, it is evident that the complainant failed to establish that the accused had on 10.04.2006, has issued Ex.P3- cheque towards discharge of legally enforceable debt covered by

Ex.P2-promissory note. The fact that Ex.P3-cheque was presented in the bank on 07.09.2006 for encashment, makes this Court believe the stand taken by accused that the complainant upon coming to know that he filed I.P., immediately upon receipt of notice therein on 07.09.2006, presented Ex.P3-cheque for encashment on the same day with ante-date, which obviously got dishonoured due to lack of funds.

15 Crl. A.No.61 of 2012 II A.S.J.,

Dt. 28-12-2016 W.G., Dist., Eluru.

Further, the complainant also failed to establish that the legal notice sent to the accused is valid in the eye of law.

27. For the foregoing reasons, this Court holds that the trial

Court was not justified in convicting and sentencing the accused for the offence under Section 138 of the Negotiable Instruments Act, by the judgment under appeal and the same is liable to be set aside.

IN THE RESULT, Criminal Appeal is allowed setting aside the judgment of conviction and sentence dated 07.02.2012, passed in C.C.

No. 717 of 2006 by the II Additional Junior Civil Judge, Tadepalligudem,

West Godavari District, against the accused.The fine amount paid by the appellant/Accused, shall be refunded to appellant/Accused after appeal time is completed. The bail bonds of appellant/Accused and bonds of sureties stands canceled.

Typed to my dictation on computer system by the Stenographer, corrected and pronounced by me in open Court, this the 28th day of December, 2016.

Sd/-Smt K.Sai Rama Devi

II Additional Sessions Judge, West Godavari, Eluru.

APPENDIX OF EVIDENCE

Nor oral or documentary evidence is adduced on either side.

Id/- K.S.R.D.

II A.D.J.,

W.G.,Eluru. Copy to

1. The Register (Judicial) High Court of Andhra Pradesh, Hyderabad. (through C.D.)

2. The II Addl.Junior Civil Judge, Tadepalligudem (along with lower court record).

// T.C.B.O.//

Superintendent II ASJ Court W.G.District, Eluru.

16 Crl. A.No.61 of 2012 II A.S.J.,

Dt. 28-12-2016 W.G., Dist., Eluru.

1 Crl. A.No. 60 of 2012 II A.S.J., Dt, 28-12-2016 W.G., Dist., Eluru.

IN THE COURT OF II ADDITIONAL DISTRICT & SESSIONS JUDGE, WEST

GODAVARI :: ELURU.

Present: Smt.K.Sai Rama Devi

II Additional Sessions Judge, West Godavari, Eluru.

Wednesday, the 28th day of December, 2016

CRIMINAL APPEAL No. 60/2012

From what Court the:IIAdditionalJuniorCivilJudge, appeal is preferredTadepalligudem.

Number of the case in:C.C.No.716/2006 that Court Number of the Appeal:Criminal Appeal No.60/2012 ' Name and description of:Baisetti Satyanarayana, S/o Baisetti Rama the AppellantRao, Male, Hindu, 2-163 Bazar Road, Opp. PasalaAchaiahHouse,Pentapadu, W.G.District. Name and description of:1)Sree Chilaka Veera Venkata Naga the respondent.Ramalinga Sreedhara Rao, Represented by GPA Holder Smt Chilaka Anuradha, W/o Telagareddy Suresh, 40 years, Female Hindu,Teacher,Subbaraopeta, Tadepalligudem. 2)State represented by its P.P., W.G., Eluru. The sentence and law: Accused is found guilty for the offence under which it waspunishable under section 138 of N.I.Act and imposed in the Lowerhe is convicted under section 255(2) of CourtCr.P.C. and sentenced him to undergo Simple Imprisonment for a period of two years and also sentenced him to pay a fine of Rs.3,000/- (Rupees Three Thousand only) indefault to undergo Simple Imprisonment for a period of three months. Whetherconfirmed,: modified or reversed,

REVERSED

and if modified the modification Date of presentation:28-02-2012 Date of notice issued:28-02-2012 Date of bail bond: --- Date of appearance :25-04-2012 Date of hearing:02-08-2012 Date of hearing:26-12-2016 Date of Judgment :28-12-2016

The appeal coming on 26-12-2016, for hearing before me, upon 2 Crl. A.No. 60 of 2012 II A.S.J., Dt, 28-12-2016 W.G., Dist., Eluru.

perusing the petition of appeal and record of the evidence and proceedings, and upon duly considering the same after hearing the arguments of appellant/accused; and of for the 1st respondent and of

Additional Public Prosecutor appearing for the State/respondent and

having stood over for consideration till this day, this Court delivered the following:

J U D G E M E N T

1.This criminal appeal by the appellant is directed against the judgment dated 07.02.2012, passed in C.C. No. 716 of 2006 by the

II Additional Junior Civil Judge, Tadepalligudem, West Godavari District, convicting him for the offence under Section 138 of the Negotiable

Instruments Act, 1881 and sentencing him to suffer simple imprisonment for a period two years and to pay fine of Rs.3,000/, in default to undergo simple imprisonment for a period of three months.

2.The appellant is the accused, while the respondent is the complainant. For convenience sake, the parties shall be referred to as per their status in the C.C. before the trial Court.

3.The case of the complainant, as averred by him in the complaint, filed through his GPA holder is as follows: – The accused and his family constitutes Hindu joint family. The accused is engaged in finance and other business. On 28.10.2003, the accused and his wife jointly borrowed an amount of Rs.3,00,000/- for their family necessities and investment in business by executing promissory note, agreeing to repay the borrowed amount with interest at the rate of 24% per annum. On repeated demands, the accused issued cheque

dated 19.06.2006 for Rs.2,00,000/- drawn on Ing Vysya Bank Ltd, West

Vippara, towards part payment of principal and interest, with a request to present the same after two months by promising to arrange 3 Crl. A.No. 60 of 2012 II A.S.J., Dt, 28-12-2016 W.G., Dist., Eluru.

payment by them. Accordingly, she presented the cheque in Ing

Vysya Bank Ltd, West Vippara, for encashment, but the same was returned with an endorsement “account closed”. Thereafter, she got issued statutory legal notice to the accused and his wife on 18.09.2006 demanding them to pay the amount covered by the cheque. The notice sent to the accused returned with postal endorsement “addressee left without instructions and whereabouts not known”. The accused filed Insolvency Petition No. 28 of 2006 on the file of the Hon’ble Senior Civil Judge Court, Tadepalligudem, to adjudicate him as insolvent. In the said I.P., accused has shown her as creditor and while admitting the debt and that he is due and liable to clear the debt, falsely alleged that he gave blank promissory notes and ten blank cheques. Hence, the complaint, by the complainant.

4.The II Additional Junior Civil Judge, Tadepalligudem, upon satisfying for itself, took cognizance of the case against the accused for the offence punishable Section 138 of the Negotiable Instruments

Act, and issued summons.

5.On appearance of the accused, the learned trial Court furnished copies of the documents as required under Section 207

Cr.P.C. to the accused.

6.The accused was examined under Section 251 Cr.P.C. and charge under Section 138 of the Negotiable Instruments Act, 1881 was framed. When the charge was read over and explained to the accused in Telugu, as required under Section 240(2) Cr.P.C., he pleaded not guilty and claimed to be tried.

7.The complainant to establish his case examined P.Ws. 1 to 3 and marked Exs. P1 to P11. After closure of evidence of the respondent, the accused was examined under Section 313 Cr.P.C. The 4 Crl. A.No. 60 of 2012 II A.S.J., Dt, 28-12-2016 W.G., Dist., Eluru.

incriminating evidence adduced by the complainant was read over and explained to the accused in Telugu. The accused having understood the same, denied the incriminating evidence and stated that the said evidence is false, and examined himself as D.W.1 and got marked

Exs. D1 to D4.

8.The learned trial Court upon appreciating the evidence adduced by the respondent/complainant, found the accused guilty of the offence under Section 138 of the Negotiable Instruments Act, 1881 and convicted him of the said offence and sentenced him to suffer simple imprisonment for a period of two years and to pay fine of

Rs.3,000/-, in default, to suffer simple imprisonment for a period of three months.

9.Questioning the correctness of the said judgment, the appellant/complainant filed this criminal appeal.

10.Heard the learned counsel for the appellant/accused and the learned counsel for the respondent/complainant. Perused the judgment under appeal and also the evidence adduced by the parties

before the trial Court, which is available on record.

11.Now the point that arises for consideration in this appeal is:

Whether the trial Court was not justified in

convicting and sentencing the appellant/accused

for the offence punishable under Section 138 of

the Negotiable Instruments Act, 1881?

12.The Hon’ble Supreme Court in Kusum Ingots & Alloys

Ltd. V. Pennar Peterson Securities Ltd.; (2000) 2 SCC 745, explained the ingredients of the offence under Section 138 N.I. Act as under:- 5 Crl. A.No. 60 of 2012 II A.S.J., Dt, 28-12-2016 W.G., Dist., Eluru.

"10. On a reading of the provisions of Section 138 of the NI Act it is clear that the ingredients which are to be satisfied for making out a case under the provision are:

(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability;

(ii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(iii) that cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the account is insufficient to

honour the cheque or that it exceeds the amount arranged to be paid

from that account by an agreement made with the bank;

(iv) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;

(v) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.

The Hon’ble Supreme Court further held as follows:

Once the cheque relates to the account of the accused and he accepts and admits the signature on the said cheque then initial presumption as contemplated under Section 139 of the Act has to be raised by the Court in favour of the complainant. The presumption referred to in Section 139 of the Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption. What is required to be established by the accused in order to rebut the presumption is different from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttable evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the Court.

14. From the settled law, as referred above, it is evident that initial burden is on the complainant but the presumption raised in favour of the holder of the cheque must be kept confined to the matters covered thereby. The presumption raised does not extend to the extent that the cheque was not issued for the discharge of any debt or liability which is not required to be proved by the complainant since it is essentially a question of fact and it is the defence which has 6 Crl. A.No. 60 of 2012 II A.S.J., Dt, 28-12-2016 W.G., Dist., Eluru.

to prove that the cheque was not issued towards discharge of a lawful debt.

15. Keeping in view the above settled principles of law, this

Court will re-appreciate the evidence adduced by the complainant in exercise of its appellate power so as to come to the conclusion whether or not the trial Court, in the facts and circumstances of the case, was justified in convicting and sentencing the accused for the offence under Section 138 of the Negotiable Instruments Act, as indicated in the judgment assailed in this appeal.

16. P.W.1 is the sister of the complainant. She is the GPA holder of the complainant, who examined himself as P.W.2. P.W.1 filed the complaint, representing the complainant as his GPA holder. P.W.1 deposed that P.W.2, who is the actual complainant, gave power of attorney in her favour only after the accused filed I.P. The question whether complaint under Section 138 of the Negotiable Instruments

Act, 1881 can be filed through power of attorney holder, was considered by a three-Judge Bench of the Hon’ble Supreme Court in

A.C. Narayanan v. State of Maharashtra; AIR 2014 SC 630, and the legal position was clarified as under:

“(i) Filing of complaint petition under Section 138 of NI Act through power of attorney is perfectly legal and competent.

(ii) The Power of Attorney holder can depose and verify on oath

before the Court in order to prove the contents of the complaint.

However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions.

(iii) It is required by the complainant to make specific assertion as to the knowledge of the power of attorney in the said transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case.

(iv) In the light of Section 145 of NI Act, it is open to the

Magistrate to rely upon the verification in the form of affidavit filed by

the complainant in support of the complaint under Section 138 of the NI Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant or his witness upon oath for taking the decision 7 Crl. A.No. 60 of 2012 II A.S.J., Dt, 28-12-2016 W.G., Dist., Eluru.

whether or not to issue process on the complaint under Section 138 of the NI Act.

(v) The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person”.

17. The above decision was referred to by the Hon’ble Supreme

Court in Vanita S. Rao v. Essen Corporate Services Pvt. Ltd.; 2015 (1) ALD (Crl.) 1 (SC), and it was held that attorney holder can sign complaint and initiate proceedings under Section 138 of the

Negotiable Instruments Act, 1881. In view of the settled law, this Court holds that the complaint under Section 138 of the NI Act, filed by P.W.1, as attorney holder of P.W.2, is maintainable.

18. P.W.1 deposed that the accused and his wife jointly borrowed an amount of Rs.3,00,000/- on 28.10.2003 from the complainant for family necessities and investments in business, agreeing to repay the same with interest at the rate of 24% per annum and executed Ex.P1-promissory note and the certified copy of which is marked as Ex.P2 because the original promissory note was filed in the suit for recovery of money. That she was present when the accused borrowed the amount from the complainant under Ex.P2, which was executed at the Sub-Registrar’s Office. She further deposed that after repeated demands, the accused issued Ex.P3-cheque dated 10.04.2006 drawn on ING Vysya Andhra Bank, for Rs.2,00,000/- towards discharge of part payment of the principal and interest, with request to present the same after two months. However, in her cross- examination, she stated that again after expiry of two months, the accused again asked for time and in the meanwhile filed I.P. No. 28 of 2006 on the file of Senior Civil Judge Court, Tadepalligudem, certified copy of the same is marked as Ex.P9. As requested by the accused, she presented the cheque for encashment on 15.09.2006, but the 8 Crl. A.No. 60 of 2012 II A.S.J., Dt, 28-12-2016 W.G., Dist., Eluru.

same was returned vide Ex.P4-endorsement “funds are insufficient”.

Thereupon, the complainant got issued Ex.P5-statutory legal notice

dated 18.09.2006 calling upon the accused to make the payment

covered by Ex.P2-cheque, but the postal cover was returned vide Ex.P6 and Ex.P7 is the acknowledgement. As the accused disputed that she did not borrow any amount from the complainant on 28.10.2003, P.W.1 in her further chief-examination deposed that the complainant paid the amount of Rs.3,00,000/- covered by Ex.P2-promissory note from out of the amount of Rs.9,90,000/-, which P.W.2 withdraw from his bank account on 27.10.2003, and to evidence the withdrawal she filed

Ex.P10-certified copy of bank statement of the complainant. She further deposed that in all she filed five cases, and that the amount involved in all the five cases is Rs.13,50,000/- which P.W.2 paid to the accused.

19. P.W.2 who is the complainant testified his case as averred by P.W.1 in the complaint filed by her on his behalf as his GPA holder and also as deposed by her in her chief-evidence.

20. The accused did not dispute that Ex.P3-cheque which was dishonoured does not belong to him. However, it is his case that the complainant requested him to circulate his money on interest in his finance business and gave cheque for Rs.4,75,000/-, and at that time, the complainant had taken 11 signed blank promissory notes and 11 blank cheques. He denied that he issued Ex.P3-cheque for discharge of legally enforceable debt. The further case of the accused is that the complainant on coming to know that her husband filed Ex.P9-I.P.

against him and others, and that there was no money in his bank account, created Ex.P3-cheque by making use of one of the blank 9 Crl. A.No. 60 of 2012 II A.S.J., Dt, 28-12-2016 W.G., Dist., Eluru.

signed cheques issued by him and with ante-date presented the same for encashment.

21. The accused denied having received the amount covered by

Ex.P2-promissory note and having issued Ex.P3-cheque for discharge of the amount covered by Ex.P2 promissory note. The complainant, admittedly, obtained Ex.P11-decree for recovery of money against the accused in respect of the transaction covered by Ex.P2-promissory note. Though P.W.1 deposed that she was present when the accused borrowed money from the complainant under Ex.P2-promissory note, which was executed at the Sub Registrar Office, but P.W.2, who is the complainant in his evidence stated that he lent money to the accused and his wife under Ex.P2-promissory note, and by that on the date

Ex.P2-promissory note was executed, he was working in Mumbai.

However, in view of Ex.P11-decree, this Court will not go into the validity of the transaction under Ex.P2-promissory note. But this Court will proceed to decide whether the accused issued Ex.P3-cheque for legally enforceable debt covered by Ex.P2-promissory note. P.W.2 deposed that he was present when the accused gave Ex.P3-cheque

dated 19.06.2006 and that at the time of giving Ex.P3-cheque, the

accused requested him to present the same after two months, but

P.W.1 deposed that she does not remember whether P.W.2 was present in Tadepalligudem on 19.06.2006, the date mentioned in Ex.P3-cheque and she does not remember whether Ex.P3-cheque was issued to her or her brother. P.W.1 in her cross-examination admitted that she presented Ex.P3-cheque in the bank, but it does not contain her signature and date on the back side of it. She admitted that they did not obtain any endorsement on Ex.P2-promissory note that Ex.P3- cheque was issued towards part payment of debt covered by Ex.P2- 10 Crl. A.No. 60 of 2012 II A.S.J., Dt, 28-12-2016 W.G., Dist., Eluru.

promissory note. P.W.2 admitted that he did not obtain any letter from the accused that Ex.P3-cheque was issued by him for discharge of the amount due under Ex.P2-promissory note. This evidence of P.Ws. 1 and 2 creates a doubt in the mind of the Court whether Ex.P3-cheque was at all issued by the accused for the debt covered by Ex.P2- promissory note.

22. According to the accused, the complainant knowing that he filed I.P. and that there are no funds in his account, created Ex.P3- cheque from out of the cheques given by him, and presented the same in the bank. P.W.1 in her cross-examination admitted that on 07.09.2006, she received notice in the I.P. filed by the complainant, though she denied that she saw the contents of the I.P. She also admitted that she presented Ex.P3-cheque on 15.09.2006, though she denied that she presented the same knowing that there are no funds in the account of the accused. Though P.W.2 also denied that after the accused filed I.P., he created Ex.P3-cheque with ante-date and presented the same for encashment, but from the evidence let in by the complainant, it is evident that the complainant presented Ex.P3- cheque on the date when he received notice in the I.P., which clearly suggests that the complainant became panicky and presented the cheque, for encashment.

23. The complainant to show that he was working as Software

Engineer and was having financial capacity to lend the same to the accused, filed Ex.P10-bank statement of account. A perusal of the same discloses that three days before the alleged date of lending, the complainant withdrew an amount of Rs.9,00,000/-, but mere withdrawal of the amount, is not sufficient evidence to hold that the said amount was paid to the accused by the complainant. It is the 11 Crl. A.No. 60 of 2012 II A.S.J., Dt, 28-12-2016 W.G., Dist., Eluru.

case of the accused that the complainant as P.W.2 in his evidence admitted that he did not reflect the payment of the money to the accused in his income tax returns, an inference can be drawn that he did not pay the money to the accused. If the complainant had not disclosed about the payments in his income tax returns, he will be liable for the consequences for such non-disclosure. However, it is for the complainant to establish that he had paid the amount to the accused from out of the money which he withdrew from the bank.

24. According to the accused, Ex.P5-statutory legal notice is not served on him and the legal notice issued is invalid and cannot be said to be a notice in the eye of law. In Harman Electronics Pvt. Ltd. vs.

National Panasonic India Pvt. Ltd.; (2009) 1 SCC 720, it was held as under:

It is one thing to say that sending of a notice is one of the ingredients for maintaining the complaint, but it is another thing to say that dishonor of a cheque by itself constitutes an offence. For the purpose of proving its case that the accused had committed an offence under Section 138 of the Negotiable Instruments Act, the ingredients thereof are required to be proved. What would constitute an offence is stated in the main provision. The proviso appended thereto, however, imposes certain further conditions, which are required to be fulfilled

before cognizance of the offence can be taken. If the ingredients for

constitution of the offence laid down in provisos (a), (b) and (c) appended to Section 138 of the Negotiable Instruments Act, are intended to be applied in favour of the accused, there cannot be any doubt that receipt of a notice would ultimately give rise to the cause of action for filing a complaint. As it is only on receipt of the notice that the accused at his own peril may refuse to pay the amount. Clauses

(b) and (c) of the proviso to Section 138 therefore, must be read together. Issuance of notice would not by itself give rise to a cause of action but communication of the notice would. A Court derives jurisdiction only when the cause of action arises within its jurisdiction. The same cannot be conferred by any act of omission or commission on the part of the accused. A distinction must also be borne in mind between the ingredients of an offence and commission of a part of the offence. While issuance of a notice by the holder of a negotiable instrument is necessary, service thereof, is also imperative. Only on a service of such notice and failure on the part of the accused to pay the demanded amount within a period of 15 days thereafter, the commission of the offence completes. Giving of notice, therefore, cannot have any precedent over the service.

12 Crl. A.No. 60 of 2012 II A.S.J., Dt, 28-12-2016 W.G., Dist., Eluru.

25. A perusal of Ex.P6-legal notice cover and Ex.P7 which is the acknowledgement shows that it was posted on 22.09.2006 and on the next day i.e. on 23.09.2006, it was returned with postal endorsement on the postal cover “left without instructions whereabouts not known”.

The accused filed I.P. with the address to which Ex.P6-legal notice cover was sent, but it is curious to note that the same was returned with postal endorsement as mentioned above. The sequence of events shows that the legal notice is dated 18.09.2006. It was sent to the accused on 22.09.2006 and it returned unserved on the next day i.e. 23.09.2006. Though Ex.P6 shows that the notice cover was returned unserved, but curiously, the complainant through P.W.1 got marked Ex.P8-reply notice to the legal notice got issued by the complainant. It is ununderstandable how the accused could give reply to the legal notice, which she did not receive at all. Therefore, this

Court is unable to believe that service of notice on the accused would be completed within a span of three days.

26. However, even if it is held that Ex.P6-legal notice was validly served on the accused, duty is cast on the complainant to establish that the legal notice sent to the accused is valid. The evidence of P.Ws.1 and 2 shows that the cheque was presented for encashment on 15.09.2006. Though it is stated that on the same day, the cheque got dishonoured, but Ex.P5-legal notice which was got issued to the accused and his wife on 18.09.2006, shows that it does not contain the number of the cheque and when it got dishonoured.

P.W.1 in her evidence admitted that in Ex.P5-notice, the details of

Ex.P3-cheque are not mentioned. She further stated that in all the cases filed by them under Section 138 of N.I. Act, a common notice was issued to the accused and that the notice dated 18.09.2006 13 Crl. A.No. 60 of 2012 II A.S.J., Dt, 28-12-2016 W.G., Dist., Eluru.

returned unserved. P.Ws.2 claimed that the legal notice was sent to both the accused and his wife as both of them jointly borrowed the amount for their joint family business, but P.W.1 admitted that no notice was given to the wife of the accused. Though P.Ws. 1 and 2 stated that after issuing cheque dated 19.06.2006, the accused requested the complainant to present the cheque after two months and thereafter again requested two months time, but they admitted that in the legal notice got issued to the accused, though it mentioned that the accused requested him to present the cheque after two months, it is not mentioned that the accused again requested them time. Apart from this evidence, the complainant did not mention the cheque number and the date on which the cheque got dishonoured either in Ex.P3-legal notice nor in the complaint nor in the chief- affidavits filed by both P.Ws. 1 and 2. Thus from the evidence of P.Ws.

1 and 2, it is evident that Ex.P5-legal notice is bereft of details, such as cheque number and the date on which it got dishonoured. In view of the same, this Court holds that the legal notice issued by the complainant to the accused is invalid and not valid in the eye of law.

27. Though the complainant obtained a Ex.P9-decree in O.S. No.

177 of 2006 on the file of the Senior Civil Judge Court, Tadepalligudem, for the amount covered by Ex.P2-promissory note, but from the evidence of P.Ws. 1 and 2, it is evident that the complainant failed to establish that the accused had on 10.04.2006, has issued Ex.P3- cheque towards discharge of legally enforceable debt covered by

Ex.P2-promissory note. The fact that Ex.P3-cheque was presented in the bank on 15.09.2006 for encashment, makes this Court believe the stand taken by accused that the complainant upon coming to know that he filed I.P., immediately upon receipt of notice therein on 14 Crl. A.No. 60 of 2012 II A.S.J., Dt, 28-12-2016 W.G., Dist., Eluru.

07.09.2006, presented Ex.P3-cheque for encashment on the same day with ante-date, which obviously got dishonoured due to lack of funds.

Further, the complainant also failed to establish that the legal notice sent to the accused is valid in the eye of law.

28. For the foregoing reasons, this Court holds that the trial

Court was not justified in convicting and sentencing the accused for the offence under Section 138 of the Negotiable Instruments Act, by the judgment under appeal and the same is liable to be set aside.

IN THE RESULT, Criminal Appeal is allowed setting aside the judgment of conviction and sentence dated 07.02.2012, passed in C.C.

No. 716 of 2006 by the II Additional Junior Civil Judge, Tadepalligudem,

West Godavari District, against the accused. The fine amount paid by the appellant/Accused, shall be refunded to appellant/Accused after appeal time is completed. The bail bonds of appellant/Accused and bonds of sureties stands canceled.

Typed to my dictation on computer system by the Stenographer, corrected and pronounced by me in open Court, this the 28th day of December, 2016.

Sd/- Smt K.Sai Rama Devi.

II Additional Sessions Judge, West Godavari, Eluru.

APPENDIX OF EVIDENCE

No oral or documentary evidence is adduced on either side.

Id/- K.S.R.D.

II A.D.J.,

W.G.,Eluru. Copy to

1. The Register (Judicial) High Court of Andhra Pradesh, Hyderabad. (through C.D.)

2. The II Addl.Junior Civil Judge, Tadepalligudem (along with lower court record).

// T.C.B.O.// 15 Crl. A.No. 60 of 2012 II A.S.J., Dt, 28-12-2016 W.G., Dist., Eluru.

1 Crl. A.No. 62 of 2012 II A.S.J.,

Dated 28-12-2016 W.G., Dist., Eluru.

IN THE COURT OF II ADDITIONAL DISTRICT & SESSIONS JUDGE, WEST

GODAVARI :: ELURU.

Present: Smt.K.Sai Rama Devi

II Additional Sessions Judge, West Godavari, Eluru.

Wednesday, the 28th day of December, 2016

CRIMINAL APPEAL No. 62/2012

From what Court the:II Additional Junior Civil Judge, appeal is preferredTadepalligudem.

Number of the case in:C.C.No.718/2006 that Court Number of the Appeal:Criminal Appeal No. 62/2012 ' Name and description of:Baisetti Rama Lakshmi Savitri, W/o Baisetti the AppellantSatyanarayana, Female, Hindu, 2-163 Bazar Road, Opp. Pasala Achaiah House, Pentapadu, W.G.District. Name and description of:1) Sree Chilaka Veera Venkata Naga the respondent.Ramalinga Sreedhara Rao., represented by GPA Holder Smt Chilaka Anuradha, W/o. Telagareddi Suresh, 40 years, Teacher, Subbaraopet,Tadepalligudem, W.G.District. 2)State represented by its P.P., W.G., Eluru. The sentence and law: Accused is found guilty for the offence under which it waspunishable under section 138 of N.I.Act and imposed in the Lowershe is convicted under section 255(2) of CourtCr.P.C. and sentenced her to undergo Simple Imprisonment for a period of two years and also sentenced her to pay a fine of Rs.3,000/- (Rupees Three Thousand only) indefault to undergo Simple Imprisonment for a period of two months. Whetherconfirmed,: modified or reversed,

REVERSED

and if modified the modification Date of presentation:28-02-2012 Date of filing:28-02-2012 Date of notice issued:29-02-2012 Date of Bail Bond: --- Date of appearance:01-05-2012 Date of hearing:26-12-2016 Date of Judgment :28-12-2016

The appeal coming on 26-12-2016, for hearing before me, upon perusing the petition of appeal and record of the evidence and proceedings, and upon duly considering the same after hearing the arguments of appellant/accused; and of for the 1st respondent and of 2 Crl. A.No. 62 of 2012 II A.S.J.,

Dated 28-12-2016 W.G., Dist., Eluru.

Additional Public Prosecutor appearing for the State/respondent and

having stood over for consideration till this day, this Court delivered the following:

J U D G E M E N T

1.This criminal appeal by the appellant is directed against the judgment dated 07.02.2012, passed in C.C. No. 718 of 2006 by the

II Additional Junior Civil Judge, Tadepalligudem, West Godavari District, convicting her for the offence under Section 138 of the Negotiable

Instruments Act, 1881 and sentencing her to suffer simple imprisonment for a period two years and to pay fine of Rs.3,000/, in default to undergo simple imprisonment for a period of three months.

2.The appellant is the accused, while the respondent is the complainant. For convenience sake, the parties shall be referred to as per their status in the C.C. before the trial Court.

3.The case of the complainant, as averred by him in the complaint, filed through his GPA holder is as follows: – The accused and her family constitutes Hindu joint family. The husband of the accused is engaged in finance and other business. On 29.10.2003, the accused and her husband jointly borrowed an amount of Rs.3,00,000/- from her for family necessities and investment in business by executing promissory note, agreeing to repay the borrowed amount with interest at the rate of 24% per annum. On repeated demands made by her, the accused issued cheque dated 19.06.2006 for Rs.3,00,000/- drawn on Ing Vysya Bank Ltd., West Vipparu, towards part payment of

principal and interest, with a request to present the same after two

months by promising to arrange payment by them. Accordingly, she presented the cheque in the bank for encashment, but the same was returned with an endorsement “account closed”. Thereafter, she got 3 Crl. A.No. 62 of 2012 II A.S.J.,

Dated 28-12-2016 W.G., Dist., Eluru.

issued statutory legal notice to the accused and her husband on 18.09.2006 demanding them to pay the amount covered by the cheque. The accused received the notice on 23.09.2006, while the notice sent to her husband returned with a postal endorsement “addressee left without instructions and whereabouts not known”. The husband of the accused filed Insolvency Petition No. 28 of 2006 on the file of the Hon’ble Senior Civil Judge Court, Tadepalligudem, to adjudicate him as insolvent. In the said I.P., the husband of the accused has shown her as creditor and while admitting the debt, and that he is due and liable to clear the debt, falsely alleged that he gave blank promissory notes and ten blank cheques. Hence, the complaint, by the complainant.

4.The II Additional Junior Civil Judge, Tadepalligudem, upon satisfying for itself, took cognizance of the case against the accused for the offence punishable Section 138 of the Negotiable Instruments Act, and issued summons.

5.On appearance of the accused, the learned trial Court furnished copies of the documents as required under Section 207

Cr.P.C. to the accused.

6.The accused was examined under Section 251 Cr.P.C. and charge under Section 138 of the Negotiable Instruments Act, 1881 was framed. When the charge was read over and explained to the accused in Telugu, as required under Section 240(2) Cr.P.C., he pleaded not guilty and claimed to be tried.

7.The complainant to establish his case examined P.Ws. 1 to 3 and marked Exs. P1 to P11.

8.After closure of evidence of the respondent, the accused was examined under Section 313 Cr.P.C. The incriminating evidence 4 Crl. A.No. 62 of 2012 II A.S.J.,

Dated 28-12-2016 W.G., Dist., Eluru.

adduced by the complainant was read over and explained to the accused in Telugu. The accused having understood the same, denied the incriminating evidence and stated that the said evidence is false, but reported no evidence.

9.The learned trial Court upon appreciating the evidence adduced by the respondent/complainant, found the accused guilty of the offence under Section 138 of the Negotiable Instruments Act, 1881 and convicted him of the said offence and sentenced him to suffer simple imprisonment for a period of two years and to pay fine of

Rs.3,000/-, in default, to suffer simple imprisonment for a period of three months.

10.Questioning the correctness of the said judgment, the appellant/complainant filed this criminal appeal.

11.Heard the learned counsel for the appellant/accused and the learned counsel for the respondent/complainant. Perused the judgment under appeal and also the evidence adduced by the parties

before the trial Court, which is available on record.

12.Now the point that arises for consideration in this appeal is:

Whether the trial Court was not justified in

convicting and sentencing the appellant/accused for

the offence punishable under Section 138 of the

Negotiable Instruments Act, 1881?

13. The Hon’ble Supreme Court in Kusum Ingots & Alloys

Ltd. V. Pennar Peterson Securities Ltd.; (2000) 2 SCC 745, ex- plained the ingredients of the offence under Section 138 N.I. Act as un- der:- "10. On a reading of the provisions of Section 138 of the NI Act it is clear that the ingredients which are to be satisfied for making out a case under the provision are:

(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another 5 Crl. A.No. 62 of 2012 II A.S.J.,

Dated 28-12-2016 W.G., Dist., Eluru.

person from out of that account for the discharge of any debt or other liability;

(ii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(iii) that cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the account is insufficient to

honour the cheque or that it exceeds the amount arranged to be paid

from that account by an agreement made with the bank;

(iv) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;

(v) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.

The Hon’ble Supreme Court further held as follows:

Once the cheque relates to the account of the accused and he accepts and admits the signature on the said cheque then initial presumption as contemplated under Section 139 of the Act has to be raised by the Court in favour of the complainant. The presumption referred to in Section 139 of the Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption. What is required to be established by the accused in order to rebut the presumption is different from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttable evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the Court.

14. From the settled law, as referred above, it is evident that initial burden is on the complainant but the presumption raised in favour of the holder of the cheque must be kept confined to the matters covered thereby. The presumption raised does not extend to the extent that the cheque was not issued for the discharge of any debt or liability which is not required to be proved by the complainant since it is essentially a question of fact and it is the defence which has to prove that the cheque was not issued towards discharge of a lawful debt.

15. Keeping in view the above settled principles of law, this

Court will re-appreciate the evidence adduced by the complainant in 6 Crl. A.No. 62 of 2012 II A.S.J.,

Dated 28-12-2016 W.G., Dist., Eluru.

exercise of its appellate power so as to come to the conclusion whether or not the trial Court, in the facts and circumstances of the case, was justified in convicting and sentencing the accused for the offence under Section 138 of the Negotiable Instruments Act, as indicated in the judgment assailed in this appeal.

16. P.W.1 is the sister of the complainant. She is the GPA holder of the complainant, who examined himself as P.W.2. P.W.1 filed the complaint, representing the complainant as his GPA holder. P.W.1 deposed that P.W.2, who is the actual complainant, gave power of attorney in her favour only after the accused filed I.P. The question whether complaint under Section 138 of the Negotiable Instruments

Act, 1881 can be filed through power of attorney holder, was considered by a three-Judge Bench of the Hon’ble Supreme Court in

A.C. Narayanan v. State of Maharashtra; AIR 2014 SC 630, and the legal position was clarified as under:

“(i) Filing of complaint petition under Section 138 of NI Act through power of attorney is perfectly legal and competent.

(ii) The Power of Attorney holder can depose and verify on oath

before the Court in order to prove the contents of the complaint.

However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions.

(iii) It is required by the complainant to make specific assertion as to the knowledge of the power of attorney in the said transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case.

(iv) In the light of Section 145 of NI Act, it is open to the

Magistrate to rely upon the verification in the form of affidavit filed by

the complainant in support of the complaint under Section 138 of the NI Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant or his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the NI Act.

(v) The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person”.

7 Crl. A.No. 62 of 2012 II A.S.J.,

Dated 28-12-2016 W.G., Dist., Eluru.

17. The above decision was referred to by the Hon’ble Supreme

Court in Vanita S. Rao v. Essen Corporate Services Pvt. Ltd.; 2015 (1) ALD (Crl.) 1 (SC), and it was held that attorney holder can sign complaint and initiate proceedings under Section 138 of the

Negotiable Instruments Act, 1881. In view of the settled law, this Court holds that the complaint under Section 138 of the NI Act, filed by P.W.1, as attorney holder of P.W.2, is maintainable.

18. P.W.1 deposed that the accused and his wife jointly borrowed an amount of Rs.3,00,000/- on 29.10.2003 from the complainant for family necessities and investments in business, agreeing to repay the same with interest at the rate of 24% per annum and executed Ex.P1-promissory note and the certified copy of which is marked as Ex.P2 because the original promissory note was filed in the suit for recovery of money. That she was present when the accused borrowed the amount from the complainant under Ex.P2, which was executed at the Sub-Registrar’s Office. She further deposed that after repeated demands, the accused issued Ex.P3-cheque dated 19.06.2006 drawn of Ing Vysya Bank Limited, for Rs.3,00,000/- towards discharge of part payment of the principal and interest, with request to present the same after two months. However, in her cross- examination, she stated that again after expiry of two months, the accused against asked for time and in the meanwhile her husband filed

I.P. No. 28 of 2006 on the file of Senior Civil Judge Court,

Tadepalligudem, certified copy of the same is marked as Ex.P9. As requested by the accused, she presented the cheque for encashment on 07.09.2006, but the same was returned vide Ex.P4-endorsement “account closed”. Thereupon, the complainant got issued Ex.P5- statutory legal notice dated 18.09.2006 calling upon the accused to 8 Crl. A.No. 62 of 2012 II A.S.J.,

Dated 28-12-2016 W.G., Dist., Eluru.

make the payment covered by Ex.P2-cheque, but the postal cover was returned vide Ex.P6. As the accused disputed that she did not borrow any amount from the complainant on 29.10.2003, P.W.1 in her further chief-examination deposed that the complainant paid the amount of

Rs.3,00,000/- covered by Ex.P2-promissory note from out of the amount of Rs.9,90,000/-, which P.W.2 withdraw from his bank account on 27.10.2003, and to evidence the withdrawal she filed Ex.P10- certified copy of bank statement of the complainant. She further deposed that in all she filed five cases, and that the amount involved in all the five cases is Rs.13,50,000/- which P.W.2 paid to the accused.

19. P.W.2 who is the complainant testified his case as averred by P.W.1 in the complaint filed by her on his behalf as his GPA holder and also as deposed by her in her chief-evidence.

20. Though the chief-evidence of P.Ws.1 and 2 received corroboration with each other, the case of the accused is one of total denial and it is her case that the complainant requested her husband to circulate his money on interest in his finance business and gave cheque for Rs.4,75,000/-, and at that time, the complainant had taken 11 signed blank promissory notes and 11 blank cheques. She specifically denied that she issued Ex.P3-cheque for discharge of legally enforceable debt. The further case of the accused is that the complainant on coming to know that her husband filed I.P. against him and others, and that there was no money in his bank account, created

Ex.P3-cheque by making use of one of the blank signed cheques issued by him and with ante-date presented the same for encashment.

21. The accused denied having received the amount covered by

Ex.P2-promissory note and having issued Ex.P3-cheque for discharge of the amount covered by Ex.P2 promissory note. The complainant, 9 Crl. A.No. 62 of 2012 II A.S.J.,

Dated 28-12-2016 W.G., Dist., Eluru.

admittedly, obtained Ex.P11-decree for recovery of money against the accused in respect of the transaction covered by Ex.P2-promissory note. Though P.W.1 deposed that she was present when the accused borrowed money from the complainant under Ex.P2-promissory note, which was executed at the Sub Registrar Office, but P.W.2, who is the complainant in his evidence stated that he lent money to the accused and his wife under Ex.P2-promissory note, and that that by the date

Ex.P2-promissory note was executed, he was working in Mumbai.

However, in view of Ex.P11-decree, this Court will not go into the validity of the transaction under Ex.P2-promissory note. But this Court will proceed to decide whether the accused issued Ex.P3-cheque for legally enforceable debt covered by Ex.P2-promissory note. P.W.2 deposed that he was present when the accused gave Ex.P3-cheque

dated 19.06.2006 and that at the time of giving Ex.P3-cheque, the

accused requested him to present the same after two months, but

P.W.1 deposed that she does not remember whether P.W.2 was present in Tadepalligudem on 19.06.2006, the date mentioned in Ex.P3-cheque and she does not remember whether Ex.P3-cheque was issued to her or her brother. P.W.1 in her cross-examination admitted that she presented Ex.P3-cheque in the bank, but it does not contain her signature and date on the back side of it. She admitted that they did not obtain any endorsement on Ex.P2-promissory note that Ex.P3- cheque was issued towards part payment of debt covered by Ex.P2- promissory note. P.W.2 admitted that he did not obtain any letter from the accused that Ex.P3-cheque was issued by him for discharge of the amount due under Ex.P2-promissory note. This evidence of P.Ws. 1 and 2 creates a doubt in the mind of the Court whether Ex.P3-cheque 10 Crl. A.No. 62 of 2012 II A.S.J.,

Dated 28-12-2016 W.G., Dist., Eluru.

was at all issued by the accused for the debt covered by Ex.P2- promissory note.

22. According to the accused, the complainant knowing that her husband filed I.P. and that there are no funds in her account, created

Ex.P3-cheque from out of the cheques given by her, and presented the same in the bank. P.W.1 in her cross-examination admitted that on 07.09.2006, she received notice in the I.P. filed by the husband of the accused, though she denied that she saw the contents of the I.P. She also admitted that she presented Ex.P3-cheque on 15.09.2006, though she denied that she presented the same knowing that there are no funds in the account of the accused. Though P.W.2 also denied that after the accused filed I.P., he created Ex.P3-cheque with ante-date and presented the same for encashment, but from the evidence let in by the complainant, it is evident that the complainant presented Ex.P3- cheque on the date when he received notice in the I.P., which clearly suggests that the complainant became panicky and presented the cheque, for encashment.

23. The complainant to show that he was working as Software

Engineer and was having financial capacity to lend the same to the accused, filed Ex.P8-bank statement of account. A perusal of the same discloses that three days before the alleged date of lending, the complainant withdrew an amount of Rs.9,00,000/-, but mere withdrawal of the amount, is not sufficient evidence to hold that the said amount was paid to the accused by the complainant. It is the case of the accused as P.W.2 in his evidence admitted that he did not reflect the payment of the money to the accused in his income tax returns, an inference can be drawn that he did not pay the money to the accused. If the complainant had not disclosed about the payments 11 Crl. A.No. 62 of 2012 II A.S.J.,

Dated 28-12-2016 W.G., Dist., Eluru.

in his income tax returns, he will be liable for the consequences for such non-disclosure. However, it is for the complainant to establish that he had paid the amount to the accused from out of the money which he withdrew from the bank.

24. According to the accused, Ex.P5-statutory legal notice is not served on him and the legal notice issued is invalid and cannot be said to be a notice in the eye of law. In Harman Electronics Pvt. Ltd. vs.

National Panasonic India Pvt. Ltd.; (2009) 1 SCC 720, it was held as under:

It is one thing to say that sending of a notice is one of the ingredients for maintaining the complaint, but it is another thing to say that dishonor of a cheque by itself constitutes an offence. For the purpose of proving its case that the accused had committed an offence under Section 138 of the Negotiable Instruments Act, the ingredients thereof are required to be proved. What would constitute an offence is stated in the main provision. The proviso appended thereto, however, imposes certain further conditions, which are required to be fulfilled

before cognizance of the offence can be taken. If the ingredients for

constitution of the offence laid down in provisos (a), (b) and (c) appended to Section 138 of the Negotiable Instruments Act, are intended to be applied in favour of the accused, there cannot be any doubt that receipt of a notice would ultimately give rise to the cause of action for filing a complaint. As it is only on receipt of the notice that the accused at his own peril may refuse to pay the amount. Clauses

(b) and (c) of the proviso to Section 138 therefore, must be read together. Issuance of notice would not by itself give rise to a cause of action but communication of the notice would. A Court derives jurisdiction only when the cause of action arises within its jurisdiction. The same cannot be conferred by any act of omission or commission on the part of the accused. A distinction must also be borne in mind between the ingredients of an offence and commission of a part of the offence. While issuance of a notice by the holder of a negotiable instrument is necessary, service thereof, is also imperative. Only on a service of such notice and failure on the part of the accused to pay the demanded amount within a period of 15 days thereafter, the commission of the offence completes. Giving of notice, therefore, cannot have any precedent over the service.

25. A perusal of Ex.P6-legal notice cover with acknowledgement shows that it was posted on 22.09.2006 and on the next day i.e. on 23.09.2006, it was returned with postal endorsement on the postal cover “left without instructions whereabouts not known”. The accused filed I.P. with the address to which Ex.P7-legal notice cover was sent, 12 Crl. A.No. 62 of 2012 II A.S.J.,

Dated 28-12-2016 W.G., Dist., Eluru.

but it is curious to note that the same was returned with postal endorsement as mentioned above. The sequence of events shows that the legal notice is dated 18.09.2006. It was sent to the accused on 22.09.2006 and it returned unserved on the next day i.e.

23.09.2006. This Court is unable to believe that service of notice on the accused would be completed within a span of three days.

26. However, even if it is held that Ex.P6-legal notice was validly served on the accused, duty is cast on the complainant to establish that the legal notice sent to the accused is valid. The evidence of P.Ws.1 and 2 shows that the cheque was presented for encashment on 15.09.2006. Though it is stated that on the same day, the cheque got dishonoured, but Ex.P5-legal notice which was got issued to the accused and his wife on 18.09.2006, shows that it does not contain the number of the cheque and when it got dishonoured.

P.W.1 in her evidence admitted that in Ex.P5-legal notice, the details of

Ex.P3-cheque are not mentioned. She further stated that in all the cases filed by them under Section 138 of N.I. Act, a common notice was issued to the accused and that the notice dated 18.09.2006 returned unserved. P.W.2 claimed that the legal notice was sent to both the accused and his wife as both of them jointly borrowed the amount for their joint family business, but P.W.1 admitted that no notice was given to the wife of the accused. Though P.Ws. 1 and 2 stated that after issuing cheque dated 19.06.2006, the accused requested the complainant to present the cheque after two months and thereafter again requested time, but they admitted that in the legal notice got issued to the accused, though it mentioned that the accused requested him to present the cheque after two months, it is not mentioned that the accused again requested them time. Apart 13 Crl. A.No. 62 of 2012 II A.S.J.,

Dated 28-12-2016 W.G., Dist., Eluru.

from this evidence, the complainant did not mention the cheque number and the date on which the cheque got dishonoured either in

Ex.P3-legal notice nor in the complaint nor in the chief-affidavits filed by both P.Ws. 1 and 2. Thus from the evidence of P.Ws. 1 and 2, it is evident that Ex.P5-legal notice is bereft of details, such as cheque number and the date on which it got dishonoured. In view of the same, this Court holds that the legal notice issued by the complainant to the accused is invalid and not valid in the eye of law.

27. Though the complainant obtained a Ex.P9-decree in O.S. No.

177 of 2006 on the file of the Senior Civil Judge Court, Tadepalligudem, for the amount covered by Ex.P2-promissory note, but from the evidence of P.Ws. 1 and 2, it is evident that the complainant failed to establish that the accused had on 19.06.2006, has issued Ex.P3- cheque towards discharge of legally enforceable debt covered by

Ex.P2-promissory note. The fact that Ex.P3-cheque was presented in the bank on 15.09.2006 for encashment, makes this Court believe the stand taken by accused that the complainant upon coming to know that he filed I.P., immediately upon receipt of notice therein on 07.09.2006, presented Ex.P3-cheque for encashment on the same day with ante-date. Further, the complainant also failed to establish that the legal notice sent to the accused is valid in the eye of law.

28.For the foregoing reasons, this Court holds that the trial

Court was not justified in convicting and sentencing the accused for the offence under Section 138 of the Negotiable Instruments Act, by the judgment under appeal and the same is liable to be set aside.

IN THE RESULT, Criminal Appeal is allowed setting aside the judgment of conviction and sentence dated 07.02.2012, passed in C.C.

No. 718 of 2006 by the II Additional Junior Civil Judge, Tadepalligudem, 14 Crl. A.No. 62 of 2012 II A.S.J.,

Dated 28-12-2016 W.G., Dist., Eluru.

West Godavari District, against the accused. The fine amount paid by the appellant/Accused, shall be refunded to appellant/Accused after appeal time is completed. The bail bonds of appellant/Accused and bonds of sureties stands canceled.

Typed to my dictation on computer system by the Stenographer, corrected and pronounced by me in open Court, this the 28th day of December, 2016.

Sd/- Smt K.Sai Rama Devi

II Additional Sessions Judge, West Godavari, Eluru.

APPENDIX OF EVIDENCE

Nor oral or documentary evidence is adduced on either side.

Id/- K.S.R.D.

II A.D.J.,

W.G.,Eluru. Copy to

1. The Register (Judicial) High Court of Andhra Pradesh, Hyderabad. (through C.D.)

2. The II Addl.Junior Civil Judge, Tadepalligudem (along with lower court record).

//T.C.B.O.//

SUPERINTENDENT

II ASJ COURT, W.G.,

ELURU.

IN THE COURT OF THE SPECIAL JUDGE UNDER PROTECTION OF

CHILDREN FROM SEXUAL OFFENCES ACT-CUM-I ADDITIONAL

SESSIONS JUDGE, WEST GODAVARI, ELURU.

Present: Smt. K. Sai Rama Devi,

Special Judge under POCSO Act-cum-

I Additional Sessions Judge, West Godavari, Eluru.

Friday, the 07th day of April 2017.

SPL. SESSIONS CASE No. 48 of 2015.

Name of the Accused and :Marapatla Sandeep @ Stephen Raj s/o particularsBaburao, 23 years, B.C., Christian, Kommarapakalu Village, h/o Kommara of Attili Mandal.

Charges:Under Sections 417, 376(2)(f)(i)(n), 323 and 506 of IPC and Section 5(l) r/w Section 6 of POCSO Act, 2012.

Crime No. & Police Station:Cr. No. 06 of 2015 of Attili Police Station.

Plea of the accused:Pleaded not guilty

Finding of the judge:The accused found not guilty of the charges under Section 417 and 506 of IPC and accordingly, acquitted under Section 235 (1) of Cr.P.C., for the said charges.

The accused found guilty of the charges under Section 5(l) r/w Section 6 of

POCSO Act, 2012 under Section 323 of

Indian Penal Code and accordingly, he is convicted for the said offence under

Section 235 (2) Cr.P.C.

Date of Sentence or Order :07.04.2017.

Order: The accused is sentenced to suffer

Rigorous Imprisonment for a period of

Ten (10) years and to pay fine of

Rs.5,000/- (Rupees Five Thousand only),in default of payment of fine, to sufferSimple imprisonment for a period of Three (3) Months for the offence under Section 5(l) r/w Section 6 of the Protection of Children from Sexual

Offences Act, 2012.

Spl. S.C. No.48 of 2015. .2 S.J.-cum-I A.S. J.,

Dt. 07.04.2017. Eluru, W.G.

The accused is also sentenced to sufferSimple Imprisonment for a period of Three (3) months for the offence punishable under Section 323 of

Indian Penal Code.

Both the above sentences shall run concurrently.

The remand period undergone by the accused from 14.01.2015 to 18.03.2015 shall be given set off under section 428 of

Cr.P.C.

The un-marked case property, if any, shall be destroyed after expiry of appeal time.

The accused is informed about his right of appeal against the conviction and sentence passed against him and also free legal aid. A copy of this entire judgment is provided to the accused at free of cost on this day itself. The prosecution is :Sri L. Ajoy Prem Kumar, Special Public conducted byProsecutor, West Godavari District, Eluru.

The accused is defended :Sri G.Ronald Raj, Advocate for the byaccused. The case committed by :--

This case coming on 06.04.2017 for final hearing before me and the matter having stood over for consideration till this day, the Court delivered the following:-

J U D G M E N T

1. The Sub Divisional Police Officer, Kovvur Sub Division, Kovvur, who investigated the case in Crime No. 06 of 2015 of Attili Police Station, based on the report given by P.W.1, filed Charge Sheet against the accused for the offences alleged under Sections 417, 376(2)(f)(i)(n), 323 and 506 of IPC and Section 5(l) r/w Section 6 of POCSO Act, 2012.

Spl. S.C. No.48 of 2015. .3 S.J.-cum-I A.S. J.,

Dt. 07.04.2017. Eluru, W.G.

2. The case of the prosecution, as revealed by the charge sheet is as follows:

2.1. The victim girl is a resident of Kommarapakalu Village h/o

Kommara of Attili Mandal, aged 15 years, studying 1st year Intermediate course in S.V.S.S. Junior College, Attili, by the date of alleged offence; that the accused is a known person to the family of victim; that the accused developed intimacy with the victim on the pretext of love and marriage; that the accused forced the victim girl to participate in sexual act or else, he would pour acid over her face.

2.2. While the matters stood so, two years back, the accused came to the house of the victim and forcibly committed sexual assault upon her against her will and consent and continued the same on so many occasions; that on 05.01.2014 at about 17.30 hours when the victim asked the accused to marry her, he beat her and also threatened her with dire- consequences; that when the matter was placed before the elders, the accused admitted his relationship with the victim girl, but refused to marry her.

2.3. On the strength of the report given by the victim, on 09.01.2015 the Sub Inspector of Police, Attili Police Station registered the same as a case in Crime No.6 of 2015 under Sections 376 and 417of IPC and Section 4 of POCSO Act and plunged into investigation.

2.4. The statement of victim girl was recorded by the Women Police

Constable; that P.W.12 examined the witnesses, recorded their statements; that P.W.12 also examined the scene of offence located in the house of the victim in the presence of mediators under the cover of scene observation report, prepared rough sketches; that the victim was sent to

Area Hospital, Tanuku, for medical examination.

Spl. S.C. No.48 of 2015. .4 S.J.-cum-I A.S. J.,

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2.5. P.W.4 issued the date of birth certificate of victim stating that the date of birth of victim is 25.07.1999 as per the Z.P. High School records, Kommarra of Attili Mandal; that P.W.5 examined the victim and preserved material objects for chemical analysis; that the learned II

Additional Judicial Magistrate of I Class, Tanuku, recorded 164 Cr.P.C.

Statement of the victim girl; that on 14.01.2015 at 10.00 hours the accused was arrested near his house and sent for medical examination; that after medical examination he was sent for judicial custody; that

P.W.2 examined the accused and issued preliminary medical certificate to that effect; that on receipt of the chemical analysis reports and final opinion and after completion of investigation, Charge Sheet was laid.

3. On appearance of the accused copies of documents are furnished as required under Section 207 of Cr.P.C., and upon hearing the Additional

Public Prosecutor and the defence Counsel and perusing the material on record and after having heard both sides, charges under Sections 417, 376(2)(f)(i)(n), 323 and 506 of IPC and Section 5(l) r/w Section 6 of POCSO

Act, 2012 were framed against the accused. The charges were read over and explained to the accused in Telugu, for which he pleaded not guilty and claimed to be tried.

4. The prosecution in order to prove the charges against the accused, examined P.Ws.1 to 12, got marked Exs.P.1 to P.11. On behalf of defence, no one was examined, but Ex.D-1 (15 in number) was marked.

5. The evidence of L.W.3-M.Paramajyothamma; L.W.4-M.Kamalakara

Rao; L.W.5-M.Velugamma; L.W.7-B.Rakesh; L.W.8-K.Anil; L.W.11-

K.Narayana Rao; L.W.15-Dr.A.Tarakeswara Rao; and L.W.16-N.Srividya was given up by the prosecution.

6. After the closure of prosecution evidence, the accused was examined under Section 313 Cr.P.C. with regard to the incriminating

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material available on record. The accused termed the incriminating evidence as false and claimed innocence and reported no defence evidence on his behalf. Hence, defence side evidence was closed.

7. Heard learned Additional Public Prosecutor and the learned counsel for the defence.

8. Now the point that arises for consideration is whether the prosecution could prove the charges against accused under Sections 417, 376(2)(f)(i)(n), 323 and 506 of IPC and Section 5(l) r/w Section 6 of POCSO Act, 2012, beyond all reasonable doubt?

POINT:

9. It is the case of the prosecution that the accused with dubious words, got acquaintance with the victim girl on the pretext of love and false promise of marriage; that when the victim refused her proposal, the accused threatened her stating that he would pour acid upon her face, had committed sexual assault upon her; that when the victim asked the accused to marry her, he beat and threatened her with dire-consequences; that when the matter was placed before the elders, the accused confessed his guilt, but refused to marry her; and that the above law was set into motion on the strength of the report given by the victim.

10. P.W.1 is the victim (name is withheld). Before examining and recording the evidence of the victim child (P.W.1) precautions were taken to ensure that she did not face the accused by using curtains, at the same time ensuring that the accused was able to hear the statement of the victim-child and communicate with his counsel as mandated under Section 36 of the Act. The trial was conducted in camera as per Section 37 of the

Act. The Court has created a child-friendly atmosphere as required under

Section 33(4) of the Act. When the witness was asked whether she wants any assistance of her parents or any other person in whom she has trust or confidence, she has stated that she can give evidence with the assistance of her mother.

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11. P.W.1 at the time of deposing before the Court on 27.04.2016 stated that she is aged 17 years. She gave Ex.P1-report to the Police on 19.01.2015. At the time when she gave Ex.P1-report to Police she was aged 16 years. P.W.4 is the Head Master of Zilla Parishad High School, where P.W.1 studied. He deposed that he issued Ex.P-7 Study Certificate on the request of Police, as per which, the date of birth of P.W.1 is 25.07.1999. P.W.2, the doctor who examined P.W.1 deposed that P.W.1 was aged 16 years and that she mentioned the same in Ex.P-3 Preliminary

Wound Certificate. P.W.10 deposed that as per Ex.P1-report, P.W.1 is aged 16 years, but her age was wrongly mentioned in the remand report as 15 years. From this evidence of P.W.1, P.W.2, P.W.4 and 10, it is evident that

P.W.1 as on the date of giving Ex.P1-report to the Police, was aged 16 years. Section 2(1)(d) of the POCSO Act, 2012 defines ‘Child’ to be any person below the age of 18 years. Since P.W.1 is below the age of 18 years as on the date of giving report to the Police, she is a child within the definition of Section 2(1)(d) of the POCSO Act. This Court apart from framing charges against the accused for the offences allegedly committed by him against P.W.1 who is a child under the POCSO Act also alternatively charged him for the offence of rape under Section 376(f)(l)(n) of I.P.C.

Since P.W.1 is a child and the accused who committed the offence against her is a major, he is liable to be tried under the provisions of POCSO Act, and therefore, the alternative charge framed against him under Section 376(f)(l)(n) of IPC need not be considered.

12. Now this Court will proceed to decide whether the prosecution could prove the guilt of the accused for the offence under Section 417, 323 and 506 of IPC and Section 5(l) r/w Section 6 of POCSO Act, 2012.

13. P.W.1 testified that her parents live in Adilabad and that since her childhood she has been in the care and custody of her grandparents.

While she was studying 8th Class, the accused in the guise of love followed

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her, in spite of her rejection, but ultimately she succumbed to his pressures believing his gullible words. While she was studying 9th Class, when her grandparents were not in the house, the accused had sexual intercourse with her against her will and without her consent and continuously thereafter till she was studying 1st year Intermediate. The accused took her to movies and beach and several places and that they also took photographs. When she asked the accused to marry her, the accused refused and abused her. On 05.01.2015 at about 5.30 P.M., while she was returning on her bicycle the accused accompanied her and while talking to each other when she asked the accused to marry her, he abused her in filthy language and beat her with hands and legs and that P.W.8 and

L.W.7-B.Rakesh noticed the same. L.W.7-B.Rakesh and L.W.8-K.Anil brought the acts of the accused to the notice of her grandparents. Later mediation was held in the presence of P.W.9 and L.W.8-K.Anil and as the accused refused to marry her, they advised her to lodge Police report and ultimately on 09.01.2015, she gave Ex.P-1 report and that P.W.6 recorded her statement and thereafter she was sent to Government Hospital,

Tanuku, where P.W.2 examined her. Police also took her to the Magistrate and her statement was recorded under section 164 Cr.P.C., which is marked as Ex.P-2. In her cross-examination, P.W.1 admitted that she addressed several love letters to the accused and Ex.D-1 is a bunch of 15 letters addressed by her to the accused. She also stated that she loved the accused and the accused loved her. She admitted that as the accused did not marry her and beat her and abused her she gave Ex.P-1 report.

She stated that she does not know what is right or what is wrong.

14. P.W.6 who examined and recorded the statement of P.W.1 deposed that P.W.1 told her that while she was studying 8th Class the accused followed her stating that he loved her and she succumbed to his pressures and participated in sexual intercourse with him for several years

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but the accused refused to marry her and beat her. She stated that she signed on the statement of P.W.1.

15. P.W.7 is the grandfather of P.W.1. He supported the version of

P.W.1 as deposed by her in her chief-examination. P.W.8 deposed that on 05.01.2016 at about 5.30 P.M., while he was coming on motorcycle, from

Kummara - Kommarapakalu, he noticed the accused beating P.W.1 and he separated each other and when he asked P.W.1 as to why the accused was beating her, P.W.1 informed him that the accused loved her, had sexual intercourse with her and refused to marry her.

16. P.W.11 deposed about registration of crime based on Ex.P-1 given by P.W.1. He stated that he cannot say who scribed Ex.P-1 but admitted that there are some extra lines added in between the lines in the last paragraph but stated Ex.P-1 was given like that and that nothing was written before him in the Police Station. P.Ws.10 and 11 deposed about the investigation made by them.

17. P.W.2-doctor who examined P.W.1 and issued Exs.P-3 and P-5 based on R.F.S.L. Report deposed that P.W.1 informed her that she had sexual contact with a known person. She further deposed that based on

Ex.P-4 R.F.S.L. Report she gave final opinion stating that P.W.1 was habituated to sexual intercourse.

18. The evidence of P.W.1 discloses that prior to her having sexual intercourse with the accused, there was a love affair between her and the accused and P.W.1 admitted that she had addressed love letters to the accused which are marked as Ex.D-1 which are 15 in number. At the time when P.W.1 had sexual intercourse with the accused, she must have been aged about 13 or 14 years. It is the case of the prosecution that as the accused refused to marry P.W.1, she gave Ex.P-1 report. P.W.1 in her evidence admitted the same. It is not the case of the prosecution or the

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evidence of P.W.1 that the accused before having sexual intercourse with the P.W.1 promised to marry her. Admittedly, P.W.1 and accused got involved in sexual relationship out of love affair. Even if it is taken that the accused did not promise P.W.1 of his marrying her prior to himself getting into physical relationship with P.W.1, the fact remains, at the point of time when they got sexually involved, P.W.1 was a minor and the accused as major and any sexual offence committed by a male person who is a major against a minor girl with or without her consent, would be an offence under the penal Laws. Being in love, is not an offence, but involving into relationships within the prohibited age would certainly be an offence. Though in this case, the prosecution did not lead any evidence to show that there was a promise made by the accused of his marrying

P.W.1 before involving himself in sexual relationship with P.W.1, at the most, the prosecution would be failing in making out a case for the offence under Section 417 IPC but the prosecution would succeed in establishing offence under Section 5(l) r/w Section 6 of POCSO Act, 2012 against the accused for having sexual intercourse with P.W.1 who is a child more than once.

19. P.W.1 deposed that on 05.01.2015 when she asked the accused to marry her accused beat and abused her. P.W.8 who witnessed the incident corroborated the version of P.W.1. Thus, the evidence of P.W.1 and P.W.8 shows that the accused beat P.W.1 and therefore, the prosecution would establish the charge under Section 323 IPC but failed to establish the charge under Section 506 IPC because neither P.W.1 nor

P.W.8 nor any other witness deposed that the accused threatened P.W.1 with dire consequences.

20. It is the case of defence by way of suggestion to P.W.1 that

P.W.7 who is the grandfather of P.W.1 took loan of Rs.85,000/- from the father of the accused and having failed to repay the same on repeated

Spl. S.C. No.48 of 2015. .1 S.J.-cum-I A.S. J.,

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demands, got foisted the present case against the accused through P.W.1, but P.W.1 denied the same. P.W.7 specifically denied the said suggestion and stated that he never borrowed any amount from the father of the accused. Even P.W.10 who investigated the case denied the said suggestion.

21. It is suggested to P.W.10 by the defence that P.W.1 was having relationship with others but P.W.10 who investigated the case in his evidence deposed that his investigation did not reveal anything to suggest that P.W.1 had any boyfriends. It is the case of the defence that there is delay in lodging Ex.P-1 report. P.W.1 as well as P.W.7 deposed that as the accused refused to marry P.W.1, they placed the matter before elders and as the accused did not heed their words, they suggested P.W.1 to lodge report. P.W.9 whom the prosecution examined to establish mediating the matter between P.W.1 and accused turned hostile. He deposed that when they asked the accused as to why he beat P.W.1 the accused told that he beat P.W.1 for fun and that he never loved P.W.1. However, he stated that as they could not settle the disputes, both the parties left the place. The version of P.W.9 that the accused beat P.W.1 for fun cannot be believed in view of his subsequent statement that they failed to settle the disputes between the parties. P.W.11 also deposed in the same lines as that of

P.Ws.1 and 7.

22. It is suggested to P.W.10 that marriage in between a minor and major is an illegal one. P.W.10 admitted the same. No doubt, a marriage between a minor and a major is illegal, but nowhere it has come in the evidence that the accused having had sexual intercourse with P.W.1 agreed to marry P.W.1 after she attains majority and in spite of the same,

P.W.1 lodged Ex.P-1 report.

23. In view of the forgoing discussion, this Court holds that the prosecution could bring home the guilt of the accused for the charges

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under Section 5(l) r/w Section 6 of POCSO Act, 2012 and 323 of Indian

Penal Code beyond all reasonable doubt. The prosecution has failed to bring home the guilt of the accused for the charges under Sections 417 and 506 of Indian Penal Code. Accordingly, the accused is convicted under

Section 235 (2) Cr.P.C., for the charge under Section 5(l) r/w Section 6 of

POCSO Act, 2012 and 323 of Indian Penal Code.

Typed to my dictation by Personal Assistant on computer, corrected and

pronounced by me in open Court, on this the 07th day of April 2017.

Sd/- K.Sai Rama Devi,

SPECIAL JUDGE UNDER POCSO ACT–CUM–

I ADDITIONAL DISTRICT & SESSIONS JUDGE,

WEST GODAVARI, ELURU.

24. When the accused questioned with regard to quantum of sentence to be imposed against him, while pleading mercy of this Court, he submitted that he has not committed any similar offence earlier and falsely implicated in the crime and pleaded to take a lenient view in imposing the sentence. The provisions under section 360 of Cr.P.C., or

Sections 3 and 4 of Probation of Offenders Act cannot be applied in this case.

25.Considering the submissions made by the accused as the offence committed by the accused which is punishable under Section 5(l) r/w Section 6 of the Protection of Children from Sexual Offences Act, 2012 which is penetrative sexual assault on victim child repeatedly, I am not inclined to take a lenient view in imposing the sentence as minimum sentence prescribed for the said offence is rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine under the POCSO Act, 2012 for the said offence. Further, there are no mitigating circumstances in favour of the accused.

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26. Hence, the accused is sentenced to sufferRigorous

Imprisonment for a period of Ten (10) years and to pay fine of

Rs.5,000/- (Rupees Five Thousand only),in default of payment of fine, to suffer Simple imprisonment for a period of Three (3) Months for the offence under Section 5(l) r/w Section 6 of the Protection of Children from Sexual Offences Act, 2012.

The accused is also sentenced to suffer Simple Imprisonment for a period of Three (3) months for the offence punishable under Section 323 of Indian Penal Code.

Both the above sentences shall run concurrently.

The remand period undergone by the accused from 14.01.2015 to 18.03.2015 shall be given set off under section 428 of Cr.P.C.

The un-marked case property, if any, shall be destroyed after expiry of appeal time.

The accused is informed about his right of appeal against the conviction and sentence passed against him and also free legal aid. A copy of this entire judgment is provided to the accused at free of cost on this day itself.

Typed to my dictation by Personal Assistant on computer, corrected and

pronounced by me in open Court, on this the 07th day of April 2017.

Sd/- K.Sai Rama Devi,

SPECIAL JUDGE UNDER POCSO ACT–CUM–

I ADDITIONAL DISTRICT & SESSIONS JUDGE,

WEST GODAVARI, ELURU.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION:

P.W.1-Victim (name is withheld) P.W.2-Dr.S.Indira Devi. P.W.3-R.V.V.Satyanarayana Murthy.

Spl. S.C. No.48 of 2015. .1 S.J.-cum-I A.S. J.,

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P.W.4-M.Yedukondalu. P.W.5-S.Srinivasa Rao. P.W.6-V.N.V.Durga Bhavani. P.W.7-Grandfather of victim (name is withheld) P.W.8-M.Mahesh. P.W.9-M.Aseervadam. P.W.10-N.Venkateswararao. P.W.11-V.Venkateswararao. P.W.12-R.Anka Babu.

FOR DEFENCE: -N O N E-.

EXHIBITS MARKED

FOR PROSECUTION:

Ex.P-109.01.2015Report given by P.W.1 to Police. Ex.P-2--164 Cr.P.C. Statement of the victim. Ex.P-323.01.2015Preliminary Wound Certificate. Ex.P-416.03.2015R.F.S.L. Report. Ex.P-5--Final Opinion Report. Ex.P-609.01.2015Scene observation report. Ex.P-718.03.2015Study Certificate of victim. Ex.P-8--Photographs along with C.D. Ex.P-909.01.2015First Information Report. Ex.P-1010.01.2015Rough sketch of the 1st scene of offence. Ex.P-1110.01.2015Rough sketch of the 2nd scene of offence.

FOR DEFENCE:

Ex.D-1--Bunch of love letters.

MATERIAL OBJECTS MARKED

- N I L -

Id/- K.S.R.D.,

SPECIAL JUDGE UNDER POCSO ACT–

CUM–I A.S.J., W.G., ELURU. Copies to:

1. The Registrar (Judl.), High Court of Andhra Pradesh, Hyderabad.

(By CD)

2. The District Collector, W.G., Eluru.

3. The Superintendent of Police, W.G., Eluru.

4. The Director of Prosecution, Hyderabad.

5. Sri L. Ajoy Prem Kumar, Special Public Prosecutor, W.G., Eluru.

// True Copy //

SPECIAL JUDGE UNDER POCSO ACT–

CUM–I A.S.J., W.G., ELURU.

Spl. S.C. No.48 of 2015. .1 S.J.-cum-I A.S. J.,

Dt. 07.04.2017.4Eluru, W.G.

TABULAR FORM ANNEXED TO THE JUDGMENT IN SPECIAL S.C.No.48 of 2015 IN THE COURT OF THE SPECIAL JUDGE UNDER PROTECTION OF

CHILDREN FROM SEXUAL OFFENCES ACT-CUM-I ADDITIONAL DISTRICT AND

SESSIONS JUDGE, WEST GODAVARI, ELURU UNDER RULE 318 OF THE

CRIMINAL RULES OF PRACTICE.

01. Sessions Case No. and P.R.C. : Special S.C. No. 48 of 2015. No: with name of the committal Court

02. Name of the Police station: Crime No. 06 of 2015 of Attili Police Station.

03. Name of the Accused and :Marapatla Sandeep @ Stephen Raj s/o particularsBaburao, 23 years, B.C., Christian, Kommarapakalu Village, h/o Kommara of Attili Mandal.

04. Date of offence: Prior to 09.01.2015.

05. Date of complaint: 09.01.2015.

06. Date of apprehension : 14.01.2015.

07. Date of release on bail: 18.03.2015.

08. Date of committal: --

09. Date of commencement of : 27.04.2016. trial

10. Date of close of Trial: 04.11.2016.

11. Date of Sentence of Order: 07.04.2017.

12. OrderThe accused is sentenced to suffer

Rigorous Imprisonment for a period of

Ten (10) years and to pay fine of

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Rs.5,000/- (Rupees Five Thousand only),in default of payment of fine, to sufferSimple imprisonment for a period of Three (3) Months for the offence under Section 5(l) r/w Section 6 of the Protection of Children from Sexual

Offences Act, 2012.

The accused is also sentenced to sufferSimple Imprisonment for a period of Three (3) months for the offence punishable under Section 323 of

Indian Penal Code.

Both the above sentences shall run concurrently.

The remand period undergone by the accused from 14.01.2015 to 18.03.2015 shall be given set off under section 428 of

Cr.P.C.

The un-marked case property, if any, shall be destroyed after expiry of appeal time.

The accused is informed about his right of appeal against the conviction and sentence passed against him and also free legal aid. A copy of this entire judgment is provided to the accused at free of cost on this day itself.

12. Explanation for the delay: No avoidable delay.

13. Appeals as prescribed under : No avoidable delay. rule 319 of Criminal Rules of Practice with regard to the diary extract submitted by the Committing Court.

Sd/- K.S.R.D.,

S.J. UNDER POCSO ACT– cum–I A.S.J., W.G., ELURU.

Spl. S.C. No.48 of 2015. .1 S.J.-cum-I A.S. J.,

Dt. 07.04.2017.6Eluru, W.G.

// True Copy //

SPECIAL JUDGE UNDER POCSO ACT–

CUM–I A.S.J., W.G., ELURU.

@@@@@@@@@@@

Spl. S.C. No.48 of 2015. .1 S.J.-cum-I A.S. J.,

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