Sri K.Srinivas

C.C.No.981/2016PJCJ-cum-JMFC, Narsapur 1

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE-CUM-

JUDICIAL MAGISTRATE OF THE FIRST CLASS, NARSAPUR.

Present:Sri K.Srinivas, I Additional Junior Civil Judge-cum-I Additional

Judicial Magistrate of the First Class, Narsapur,

(FAC) Principal Junior Civil Judge-cum-Judicial Magistrate of

First Class, Narsapur.

Thursday, this the 11th day of January, 2024

C.C.NO.981/2016

Between:

Ande Krishna Thulasi Rao, S/o. Venkanna, Aged 60 years, Male, Hindu, Cultivation, Door No.8-140, K.P.Palem (South), Mogaltur Mandal, Mogaltur. … Complainant.

And

Mekala Venkateswara Rao, S/o. Narayana Rao, Aged 42 years, Male, Hindu, Fish Culture, Door No.AKFO 8469, Road No.2, Bank Colony, Opp: the house of Pulaparthi Ramanjaneyulu, M.L.A, Bhimavaram-1, Bhimavaram Mandal. … Accused.

This case is coming before me on 05.01.2024 for final hearing in the presence of Sri M.Venkata Subba Rao, Advocate for the Complainant, and Sri P.Surya Chandra Rao, Advocate for the accused, and upon perusing the material available on record, and on hearing the arguments, the matter having stood over for consideration to this day, the Court delivered the following:

J U D G M E N T

1.This is a private Complaint filed by the Complainant against the accused for the offence punishable under Section 138 of the Negotiable

Instruments Act, praying the Court to punish the accused and to award

Compensation.

2. The brief facts of the complaint are as follows:

The accused for his necessities, discharge sundry debts and to invest in his aqua culture had borrowed an amount of Rs.8,00,000/- from the complainant on 10.01.2015 and executed promissory note in the

C.C.No.981/2016PJCJ-cum-JMFC, Narsapur 2 presence of attestors and scribe, agreed interest at the rate of 12% per annum.

3.In spite of repeated demands made by the complainant, accused has failed to repay the promissory note debt. Thereafter on 26.09.2016 accused approached the complainant and issued Cheque bearing

No.000010 for an amount of Rs.6,00,000/- drawn on Lakshmi Vilas Bank,

Bhimavaram to discharge promissory note debt and gave assurance for en-cashment.

4.On 26.09.2016 the Complainant was presented said cheque for collection in his banker i.e., Andhra Bank, Perupalem branch and it was returned for insufficient funds.

5.On 07.10.2016, the complainant got issued legal notice to the accused. Accused having received the legal notice on 15.10.2016 he neither issued reply nor discharge the amount covered under the cheque.

On that complainant was filed present complaint under Section 138 of

Negotiable Instruments Act.

6.The complaint was taken on file by the Additional Judicial Magistrate of the First Class, Narsapur, for the offence under Section 138 of the NI Act against the accused.

7.On appearance of accused copies of case documents were furnished to him as contemplated under Section 207 of the Cr.P.C.

8.As per the Orders of the Hon'ble Principal District and Sessions

Judge, Eluru in Dis.No.3239 dated 17.04.2018 this case was transferred

from the Court of the Additional Judicial Magistrate of the First Class,

C.C.No.981/2016PJCJ-cum-JMFC, Narsapur 3

Narsapur, to this Court with a direction to dispose the case according to law.

9. On further appearance of the accused, he was examined under

Section 251 of the Cr.P.C. and substance of the accusation levelled against him for the offence punishable under Section 138 of Negotiable

Instruments Act read over and explained to him in Telugu, for which he denied the same and pleaded not guilty and claimed to be tried.

10. During the trial, to substantiate his case, complainant was examined as PW.1 and Exs.P1 to P6 were marked. First attestor of the promissory note was examined as PW.2.

11.After completion of prosecution evidence, accused was examined under Section 313 of the Cr.P.C., by explaining the incriminating evidence appearing against the accused by the complainant witnesses, for which he denied the same and reported no defence evidence.

12. SUBMISSION OF THE COMPLAINANT:

The learned counsel for the complainant contended that accused borrowed an amount of Rs.8,00,000/- from the complainant on 10.01.2015, executed promissory note on the even date in the presence of the attestors, scribe and received consideration under Ex.P1 promissory note. To discharge said debt, accused has issued Ex.P.2-cheque and on presentation it was dis-honoured for insufficient funds. Thereafter complainant followed legal formalities and filed the present complaint.

Complainant has discharged his initial burden and he prays the Court to convict the accused.

C.C.No.981/2016PJCJ-cum-JMFC, Narsapur 4

SUBMISSION OF THE ACCUSED:

13.The learned counsel for the accused would contended that accused never borrowed any amount from complainant, no consideration was passed under Ex.P.1 Promissory Note. He further contended that accused was purchased property from one Purella Vijaya Lakshmi and Addala

Govinda Raju, who are the relatives of P.W.1 and he paid part of the sale consideration, obtained Registered Sale Deed from his vendors. At the time of registration on 21.07.2016, his vendors were obtained empty signed cheque and promissory note from the accused towards security.

Subsequently, he paid the remaining sale consideration, but his vendors did not return empty signed cheque and promissory note and that they filed the present case through the complainant. The accused further contended that complainant has no financial capacity to lend an amount of Rs.6,00,000/-. Therefore, he prays the Court to acquit him from the case.

14.Now the point for determination is that -

1) Whether the accused has issued cheque bearing

No.000010 dated 26.09.2016 for an amount of

Rs.6,00,000/- to the complainant towards discharge of

legally enforceable debt for the account maintained by

him?

2) Whether the cheque was returned back un-paid with

endorsement that funds insufficient for the offence

covered under Section 138 of Negotiable Instruments

Act?

C.C.No.981/2016PJCJ-cum-JMFC, Narsapur 5

3) Whether the accused has failed to make the payment of

Ex.P2 cheque amount within 15 days of the legal notice

from the complainant demanding the payment of

cheque amount, and thereby accused committed

offence punishable under Section 138 of Negotiable

Instruments Act?

POINT No.1:

15.The complainant was examined as PW.1 and marked Exs.P1 to P6 documents. Ex.P1 is the certified copy of promissory note, dated 10.01.2015, Ex.P2 is the Cheque bearing No.000010 dated 26.09.2016,

Ex.P3 is the Cheque return memo dated 28.09.2016, Ex.P4 is the Office copy of registered notice dated 07.10.2016, Ex.P5 is the postal acknowledgement dated 15.10.2016, Ex.P6 is the certified copy of

Judgment in O.S.No.157/2016 dated 26.04.2023.

16.The learned counsel for the accused strongly contended that complainant has no financial capacity to lend such huge amount of

Rs.6,00,000/-.

17.PW.1 in his cross-examination deposed as follows:

“I have documentary evidence to show that Rs.8,00,000/-

cash available in my hand as on the date of transaction. I

have Ac.1.50 cents of coconut garden and also having one

house”.

18.PW.1 had been filed civil suit before the Hon’ble Senior Civil Judge’s

Court basing on the Ex.P.1-Promissory note, dated 10.01.2015.

C.C.No.981/2016PJCJ-cum-JMFC, Narsapur 6

19.Ex.P6 is the certified copy of Judgment, dated 26.04.2023. I have perused the Ex.P6 Judgment. P.W.1 herein is the Plaintiff in

O.S.No.157/2016 and he produced Ex.A.1 to Ex.A.5 documents.

20.Ex.A3 is the 1-B Adangal which was obtained by PW.1 through

Mee-Seva. Ex.A4 is the house tax receipts for the year 2020-2023.

21.PW.1 in his cross-examination categorically stated that he is having coconut garden in an extent of Ac.1.25 cents. The Judgment under Ex.P.6

PW.1 was not only produced Adangal copy but also filed house tax receipts, proved his financial capacity. Therefore, P.W.1 evidence is consistent that he is having landed properties.

22.The learned counsel for the complainant arguing that PW.1 herein was examined two witnesses and their chief examination was tested with cross-examination. Further, accused herein filed chief examination affidavit in O.S.No.157/2016. Subsequently, he did not turn up, after giving ample opportunity, the Hon’ble Senor Civil Judge, Narsapur, set the accused herein set-exparte and gave finding that the plaintiff established borrowing amount and execution of promissory note by accused.

23.Ex.A3 and A4 categorically established that PW.1 has having financial capacity. Therefore, the contention of the accused that complainant has no financial capacity has no force and not tenable.

24.According to P.W.1, on 10.01.2015 accused received cash consideration of Rs.8,00,000/-, executed Ex.P.1 Promissory Note. PW.2

Konda Venkata Krishnaji, Uppuluri Somayya were attestors and Kasani

Kumar Nehru was the scribe of Ex.P1 promissory note.

C.C.No.981/2016PJCJ-cum-JMFC, Narsapur 7

25.P.W.1 in his cross examination cross-examination deposed as follows:

“I got acquaintance with accused prior to five or six months

before the alleged transaction. One Andey Gopalam and

Melam Gandhi are the relatives to him as well as relatives of

accused. Accused asked me to arrange loan prior to three or

four months before the alleged money transaction and the

same was not informed to Andey Gopalam and Melam

Gandhi. I did not enquire about the assets of the accused

and also did not obtain any encumbrance certificate.

Alleged transaction was took place at the house of Kasani

Kumar Nehru. The house of the scribe is situated beside

Masjid at Mogalthur. Ex.P1 transaction had taken place at

pial of the house of scribe and that I cannot say how many

rooms are there in scribe house, said house main entrance is

situated towards north. Accused brought the attestors by

name Konda Venkata Krishnaji and Uppuluri Somayya.

26.As seen from the above evidence, it is made clear that the evidence of PW.1 is consistent and he confined his testimony that Ex.P1 transaction was took place at the house of the scribe house and he was taken by accused to the house of scribe.

27.PW.2 is the scribe of Ex.P1 promissory note. In his chief examination he stated that accused was executed Ex.P1 promissory note, received consideration of Rs.8,00,000/- from P.W.1 to meet family expenses and to discharge sundry debts and to invest in fish tanks. He along with Uppuluri

C.C.No.981/2016PJCJ-cum-JMFC, Narsapur 8

Somayya were attested the promissory note which was scribed Kasani

Kumar Nehru.

28.PW.2 in his cross-examination deposed as follows:

The alleged transaction was took place at the house of the

scribe situated at Mogalthur. It was took place around 9.00

a.m. to 10.00 a.m. I do not know second attestor that I was

seen him at the time of alleged transaction. The

denomination of cash is Rs.500/- rupee notes which are not

having bank seals. Promissory note was scribed in Telugu

language. Accused narrated the facts that scribe noted the

same. Accused availed loan from the complainant to meet

his family expenses, discharge sundry debts and to invest

aqua business. Complainant never received any security

from the accused except promissory note.

29.PW.2 stated that accused brought him to the house of the scribe where Ex.P1 transaction was took place. Therefore, the evidence of PW.2 is strengthening the case of PW.1 and supported Ex.P1 promissory note. It is important to mention that the evidence of PWs.1 and PW.2 are consistent regarding the passing of consideration and execution of promissory note by the accused on 10.01.2015.

30.The promissory note was executed in the year 2015. PW.2 was acted as first attestor. He gave evidence on 17.08.2023 much after 8 years from execution of alleged Ex.P.1-Promissory note. Therefore, trivial contradictions are bound to occur, which are not sole ground to discard his evidence. As seen from the above evidence, it can be seen that the

C.C.No.981/2016PJCJ-cum-JMFC, Narsapur 9 evidence of PW.1 and PW.2 are consistent, there is no serious contradictions and omissions are pointed out in their evidence.

31.In the recent judgment of the Hon’ble High Court of Andhra Pradesh has observed that “in a cheque bounce cases that the judgment of

civil Court is binding on the criminal Court to prove the existence

of legally enforceable debt”.

32.In the present case, complainant not only examined one of the attestor but also produced certified copy of Ex.P1 promissory note. As already discussed, that the evidence of PW.2 is consistent and believable regarding the execution of Ex.P1 promissory note by accused.Therefore, it can say that complainant has categorically established the existence of legally enforceable debt under Ex.P1- Promissory Note. Accordingly Point

No.1 is answered.

Point No.2:

33.It is the one of the defence of the accused was that this Court has no jurisdiction to entertain the complaint as Ex.P3 was issued by Lakshmi

Vilas Bank, Bhimavaram. Therefore, this Court has no jurisdiction to entertain the complaint.

34. Ex.P2 is the original cheque bearing No.000010 dated 26.09.2016.

On perusal of cheque it appears Bank seal of Andhra Bank, Perupalem on both sides. Ex.P.2 cheque went on for collection. Therefore, it cannot be said that Complainant has not presented Ex.P.2 cheque in his banker for en-cashment. Therefore, there is no force in the argument of accused regarding to jurisdiction. Accordingly, the objection raised by the accused that this Court has no jurisdiction is not accepted.

C.C.No.981/2016PJCJ-cum-JMFC, Narsapur 10

35.Ex.P3 original cheque return memo amply establishes that Ex.P2 cheque was presented for en-cashment and it was returned for insufficient funds which is covered under Section 138 of Negotiable Instruments Act.

Accordingly, point No.2 is answered.

Point No.3:

36.The learned counsel for the accused contended that accused issued empty signed cheque and promissory note to his vendors at the time of execution of sale deed towards security and on the same day he obtained regular sale deed from his vendors. Later on he paid remaining sale consideration but his vendors did not return his cheque and Promissory

Note. In this case accused is not disputing issuance of cheque and signature and he is the drawer of the cheque.

37.In Bir Singh V. Mukesh Kumar 2019 4 SCC 197, the Honble

Supreme Court of India held that unless the contrary is proved, it is to be presumed that the holder of the cheque received the cheque of the nature referred to in Sec.138 of NI Act, for the discharge, in whole or in part for any debt or liability. Needless to mention that the presumption contemplated under Sec.139 of Negotiable Instruments Act, it is a rebuttable presumption. However, the onus of proving that the cheque was not in discharge of any debt of other liability is on the accused drawer of the cheque. The Hon’ble Apex Court further observed that a person who signs a cheque and he make it over to the Payee remains liable unless he adduce the evidence to rebut the presumptions. It is immaterial that the cheque may have been filled by any person other than the drawer. If the

C.C.No.981/2016PJCJ-cum-JMFC, Narsapur 11 cheque is duly signed by the drawer, if the cheque is otherwise valid. The penal provisions Sec.138 N.I Act would be attracted.

38.According to accused, he had been purchased site from Purella

Vijaya Lakshmi and Addala Govinda Raju on 21.07.2016. At the time of registration, he paid part of the sale consideration, issued empty signed cheque and promissory note towards security for remaining sale consideration. But Ex.P1 promissory note was executed on 10.01.2015 much 18 months before the alleged sale transaction. It is astonish to believe that how the vendors of accused would venture to register the sale deed without receiving the entire sale consideration from their vendee.

39.In this case, Ex.P4 legal notice issued by the PW.1 through his counsel. Ex.P5 is the postal acknowledgement dated 15.10.2016. The entire cross-examination of PW.1, there is no suggestion put forth by the learned counsel for the accused to denying either signature on Ex.P5 postal acknowledgement or address mentioned in Ex.P-4 legal notice.

40.The address mentioned in Ex.P4 legal notice as well as address mentioned in the complaint is one and the same and accused received summons with same address. Therefore, it cannot be said that accused has not received Ex.P.4-legal notice and there is a presumption that Ex.P.4-

Legal Notice was served to the correct address of the accused and accused failed to rebut such presumption.

41.Assuming for sake of argument, on 21.07.2016 if really accused issued empty signed cheque and promissory note to his vendors and obtained registered sale deed, what prevented him to give reply to Ex.P.4-

C.C.No.981/2016PJCJ-cum-JMFC, Narsapur 12

Legal Notice. In fact Ex.P.4-Legal Notice was served to the accused on 15.10.2016, therefore no prudent person would remain silent even after receipt of legal notice which he did not indebted to any person. When accused paid entire sale consideration to his vendors, in that situation it is

for the accused to take steps for return of his security. But in this case,

there is no reply from the side of accused. Therefore, the conduct of the accused is not believable.

42. It is well settled law that once the execution of cheque is admitted,

Section 139 of N.I. Act mandates the presumption that cheque was issued for the discharge of any debt or other liability. The presumption is rebuttal presumption; the onus is on the accused to raise probable defence. To rebut the presumption is it is for the accused to rely on the evidence led by the complainant or the accused can adduce direct evidence, in order to raise the probable defence, the accused need not enter into witness box in support of his defence.

43.If really he issued empty signed cheque and promissory note to his vendors under alleged sale transaction should have happened after 21.07.2016. But Ex.P1 was executed on 10.01.2015. Therefore, I am of the opinion that Ex.P1 transaction has no connection to the alleged sale transaction. In fact, PW.1 in his cross-examination categorically denied the case of the accused. In this case accused failed to explain how he kept mum without giving any reply notice to Ex.P4. The non-issuance of reply notice by the accused is categorically indicating that he executed

Ex.P1 promissory note. Even it is not otherwise believe how the vendors have registered landed property without receiving entire consideration.

C.C.No.981/2016PJCJ-cum-JMFC, Narsapur 13

Further accused has fails to explain what amount of consideration he had paid to his vendors and how much amount he was alleged to be paid to his vendors. Further accused neither examined his vendors nor so called attestors of the sale deed. Putting the mere suggestion that accused purchased property from the relatives of PW.1 is not sufficient to rebut the presumption. The theory put-forth by the accused is not convincing and also not believable. Virtually complainant has produced documentary and oral evidence, discharged his initial burden. Therefore, the burden is lies on the accused to establish Ex.P.2 cheque was not issued towards legally enforceable debt. Thus, Accused has failed to rebut the presumptions under Sections 139 of Negotiable Instruments Act.

44.Having gone through the oral and documentary evidence, PW.1 produced Ex.P1 certified copy of the promissory note and Ex.P6 certified copy of the Judgment in O.S.No.157/2016 and also establish the primary ingredients under Section 138 of Negotiable Instruments Act. Accordingly,

Point No.3 is answered in favour of the complainant.

45.In the result, accused is found guilty for the offence punishable under section 138 of the Negotiable Instruments Act. Accordingly, he is convicted for the same under Section 255 (2) of Cr.P.C.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in the open court, this the 11 th day of January, 2024.

Digitally signed by

KANCHI

KANCHI SRINIVAS

SRINIVAS

Date: 2024.01.11

12:38:22 +0000 I Addl. Junior Civil Judge-cum-I Addl. Judl. Magistrate of the First Class, Narsapur, (FAC) Principal Junior Civil Judge-cum-

Judicial Magistrate of the First Class,

Narsapur.

C.C.No.981/2016PJCJ-cum-JMFC, Narsapur 14

HEARING ON SENTENCE

Accused reported that he is having two children, who are studying

Intermediate and Engineering and he is having old aged parents aged about 88 years and 86 years respectively and he is the sole bread winner of his family and prays the Court to take lenient view by imposing sentence.

It is a cheque bounce case, filed in the year 2016. Chapter XVII of the Negotiable Instruments Act is enacted to create efficacy in cheque transactions. In the instant case, complainant already filed civil suit and attached the property of the accused. Considering the facts and cicrumstances of the case, I am not inclined to take lenient view. Further accused is not entitled for benevolent provisions U/sec.360 Cr.P.C., and

Section 4 of Probation of Offenders Act.

Accused shall sentenced to undergo Rigorous Imprisonment

for Six (6) months and shall pay fine of Rs.6,00,000/-, in default of

payment of fine, he shall suffer simple imprisonment for three (3)

months. The total fine of Rs.6,00,000/- shall be given to the

complainant as compensation awarded U/sec.357 Cr.P.C.

Accused is not in judicial custody during the course of trial.

Therefore, passing of order under section 428 of Cr.P.C is not required.

The accused is informed about his right to prefer an appeal against this judgment before the appellate Court.

NOTE: The copy of Judgment is given to the accused forthwith on free of cost and obtained acknowledgment.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in the open court, this the 11 th day of January, 2024.

KANCHIDigitally signed by

KANCHI SRINIVAS

SRINIVASDate: 2024.01.11 12:38:56 +0000 I Addl. Junior Civil Judge-cum-I Addl. Judl. Magistrate of the First Class, Narsapur, (FAC) Principal Junior Civil Judge-cum-

Judicial Magistrate of the First Class,

Narsapur.

C.C.No.981/2016PJCJ-cum-JMFC, Narsapur 15

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Complainant For Accused

PW.1: Ande Krishna Tulasi RaoNone PW.2: Konda Venkata Krishnaji

EXHIBITS MARKED

For Complainant For Accused

Ex.P1: Certified copy of Promissory Note dated 10.01.2015 for a sum of Rs.8,00,000/- executed by the accused in favour -- Nil -- of the complainant. Ex.P2: Cheque bearing No.000010 dated 26.09.2016 for a sum of Rs.6,00,000/- drawn on Lakshmi Vilas Bank, Bhimavaram Branch, Bhimavaram. Ex.P3: Cheque return memo dated 28.09.2016 issued by Lakshmi Vilas Bank, Bhimavaram Branch, Bhimavaram. Ex.P4: Office copy of the registered notice dated 07.10.2016 got issued by the complainant to the accused along with postal receipt. Ex.P5: Postal acknowledgement dated 15.10.2016 received from the accused. Ex.P6: Certified copy of the Judgment in O.S.No.157/2016

dated 26.04.2023.

KANCHIDigitally signed by

KANCHI SRINIVAS

SRINIVASDate: 2024.01.11 12:39:12 +0000 I Addl. Junior Civil Judge-cum-I Addl. Judl. Magistrate of the First Class, Narsapur, (FAC) Principal Junior Civil Judge-cum-

Judicial Magistrate of the First Class,

Narsapur.

C.C.No.981/2016PJCJ-cum-JMFC, Narsapur 16

CALENDAR AND JUDGMENT

District of West Godavari Calendar of Cases tried by PRINCIPAL JUNIOR CIVIL JUDGE-CUM-JUDICIAL MAGISTRATE OF

THE FIRST CLASS, NARSAPUR.

---------------------------------------------------------------------------------------------------------------- Date of offenceReport of complaintAppearance of AccusedRelease on bail (1) (2) (3) (4) ---------------------------------------------------------------------------------------------------------------- 28.09.2016 07.11.2016 03.01.2017 ---------------------------------------------------------------------------------------------------------------- Commencement of trial Close of trial Sentence of order Explanation for delay (5) (6) (7) (8) ---------------------------------------------------------------------------------------------------------------- 06.04.2022 12.09.2023 11.01.2024 Due to non-production of witnesses from time to time ---------------------------------------------------------------------------------------------------------------- Judgment of Calendar Case No. 981/2016 on the file of Principal Junior Civil Judge-cum-

Judicial Magistrate of the First Class, Narsapur.

---------------------------------------------------------------------------------------------------------------- Complainant: Ande Krishna Thulasi Rao, S/o. Venkanna, Aged 60 years, Male, Hindu, Cultivation, Door No.8-140, K.P.Palem (South), Mogaltur Mandal, Mogaltur.

---------------------------------------------------------------------------------------------------------------- Name of the Accused Father Name Age Caste/Religion: Calling Village ---------------------------------------------------------------------------------------------------------------- Mekala Venkateswara Rao, S/o. Narayana Rao, Aged 42 years, Male, Hindu, Fish Culture, Door No.AKFO 8469, Road No.2, Bank Colony, Opp: the house of Pulaparthi Ramanjaneyulu, M.L.A, Bhimavaram-1, Bhimavaram Mandal. ---------------------------------------------------------------------------------------------------------------- Offence:Under Section 138 of the Negotiable Instruments Act, 1881. Finding:Accused is found guilty. Sentence: In the result, accused is found guilty for the offence punishable under section 138 of the Negotiable Instruments Act. Accordingly, he is convicted for the same under Section 255 (2) of Cr.P.C.

Accused shall sentenced to undergo Rigorous Imprisonment

for Six (6) months and shall pay fine of Rs.6,00,000/-, in default of

payment of fine, he shall suffer simple imprisonment for three (3)

months. The total fine of Rs.6,00,000/- shall be given to the

complainant as compensation awarded U/sec.357 Cr.P.C.

Accused is not in judicial custody during the course of trial.

Therefore, passing of order under section 428 of Cr.P.C is not required.

C.C.No.981/2016PJCJ-cum-JMFC, Narsapur 17

The accused is informed about his right to prefer an appeal against this judgment before the appellate Court. Digitally signed by

KANCHI

KANCHI SRINIVAS

SRINIVASDate: 2024.01.11 12:39:28 +0000 I Addl. Junior Civil Judge-cum-I Addl. Judl. Magistrate of the First Class, Narsapur, (FAC) Principal Junior Civil Judge-cum-

Judicial Magistrate of the First Class,

Narsapur.

Copy submitted to: The Hon’ble I Additional District Judge, West Godavari, Eluru

Copy to:

1) The Hon’ble Secretary, District Legal Services Authority, West Godavari, Eluru.

2) The Superintendent of Police, West Godavari, Bhimavaram.

APWG100001282023

IN THE COURT OF THE ADDITIONAL CIVIL JUDGE (JUNIOR

DIVISION)-cum-ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

NARSAPUR.

PRESENT :- Sri K. Srinivas,

Additional Civil Judge (Junior Division)-cum-Additional

Judicial Magistrate of I Class,

Narasapur.

Thursday, this the 24th day of April, 2025

C.C.No. 68/2023

Between:

State represented by the Inspector of Police, Narasapur Police Station. ……. Complainant

And

1. Kothapalli Naresh, S/o Venkanna, Aged 34 years, Rustumbada, Narasapur Town.

2. Beera Ramesh, S/o Venkateswara Rao, Aged 34 years Masayyapeta, H/o Billakudu Village, Kothapeta Mandal, East Godavari District.

3. Gubbala Bhaskar, S/o Naga Pandu, Aged 34 years, Weavers Colony, Prakash Nagar, Narasapur Town. ……. A1 to A3

This case is coming before me for final hearing on 21-04-2025 in the presence of the Assistant Public Prosecutor for the State and

Sri K.B.Satyanarayana, Advocate for A1 and A3, Sri. N. Ananda Babu,

Legal-Aid Counsel for A2 and upon hearing and the matter is having stood over for consideration to this day, this Court delivered the following :

2

J U D G M E N T

1. The State represented by the Inspector of Police, Narasapur Town

Police Station, filed charge sheet against the accused in Crime No. 22/2023 for the offence under Sections 457,380 or 411 Indian Penal Code, 1860.

2. The brief facts of the prosecution case are as follows:

The first informant Kopparthi Venkataratnam is resident of 10th Ward,

Jyosula vari Street, Narasapur. On 15.01.2023, he along with his wife went to

Eluru. On 16.01.2023, he received a phone call from his house owner V. Uma

Gayathri, informing him that the house doors are broke open. He immediately returned to Narasapur and verified the things, found unknown offenders gained entry into his house, committed theft of cash Rs.7,50,000/-, gold and silver ornaments i.e., 1) Two Gold rings weighing of 3 sovereigns, 2) Gold chain with Anjaneyswamy locket weighing 1 ½ sovereign, 3) Gold bracelet weighing of 1 sovereign, 4) Gold Black beads chain with locket-10 grams, and

5) silver bowl, silver anklets weight of 61 grams. On the same day, he went to the Narasapur Town Police Station and lodge a report. As a result, a case in

Crime No. 22/2023 was registered under section 457, 380 IPC.

P.W.2.M.Rajesh, the Sub-Inspector, Finger Prints Unit CID, West Godavari, visited the scene of offence and developed chance finger prints. Later, he analyzed the fingerprints and found that the right middle finger matched with the A1.

3.On 19-01-2023 P.W.6-G. Srinivas Yadav, Inspector of Police, Narasapur

Town arrested the accused and seized Rs.2,43,000/- cash, One gold chain with locket, bracelet, iron rod from A.1, cash of Rs.2,44,000/-, one black breed gold chain with locket, silver anklet from A.2, cash Rs.2,43,000/-, one gold ring, silver bowl from A.3. The entire seizure took place in the presence of mediators. After arrest, P.W.6 sent the accused to judicial custody. After completion of investigation, he filed the charge sheet.

3

4. Cognizance was taken for the offence under Sections 457,380 or 411

I.P.C. against the A1 to A3.

5. On appearance of the accused, copies of case documents were furnished to the accused as contemplated under Section 207 of the Cr.P.C.

6. The A1 to A3 were examined Under Section 239 Cr.P.C charges has been framed under section 457,380 or 411 I.P.C, read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried.

7. The prosecution has examined P.W.1 to P.W.6 and marked Exs.P-1 to

Ex.P-7 and M.O.1 to M.O.7. The prosecution given up the evidence of L.W.2-

K.L.S.S.Naga Sireesha, L.W.3-K.Vijay Kumar, L.W.4-K.T.S.S.Lakshmi Ashok,

L.W.5-V.Uma Gayatri, L.W.6-Pemmaraju Srinivasu, L.W.7-Gubbala Narayana,

L.W.8-Atmuri Sudhakar, L.W.11-G.Swaroop, L.W.13-R.Suresh.

8. After completion of prosecution evidence, the accused were examined under section 313 Cr.P.C for the incriminating evidence leveled against them, for which, they denied and reported no defense evidence.

9. Heard the arguments of the prosecution as well as defense.

10. Now the point for determination is:

(i) Whether the prosecution has established the guilt of the

accused for the offence under Sections 457,380 Indian Penal Code

beyond all reasonable doubt?

Alternatively

Whether the prosecution has established the guilt of the accused

for the offence under Section 411 Indian Penal Code beyond all

reasonable doubt?

11. P O I N T No. (i) :

P.W.1 lodged a police report on 16.01.2023 alleging that he is living in a rented house situated at 10th ward, Jyosulavari Street, Narasapur. He is an

Advocate and is also doing real estate business. On 15.01.2023 at about 7.00 4

P.M., he along with his wife, went to Eluru to visit his in-laws house. On 16.01.2023 around 7.30 A.M., his house owner, Vinukonda Gayathri telephoned him, informed him that the door locks were broke open and the house doors were left open. She further informed the door situated on the backyard was also left open. Immediately, he and his wife rushed to

Narasapur and reached there at 12.30 P.M and found the main entrance doors were left open and the locks were broke open, he verified the things in the bed room and found the doors of iron safe were broke open, Rs.7,50,000/- cash, two gold rings, gold chain with Hanuman idol, one bracelet, black breed gold chain, silver anklets, silver small size sandle bowl are missing. At about 05.15

P.M., he rushed to Narasapur Town Police station and lodged a report, which is Ex.P1.

12.P.W.1 during his cross examination, he denied the suggestion that the accused had no connection to the occurrence, which happened in his house.

13.P.W.2 is the Finger Print Inspector. On 16.01.2023, he received a phone call from Inspector, Narasapur Town Police Station, who informed about the offence. Immediately, P.W.2 and his staff visited the scene and developed chance fingerprints, using technical powders. At scene, P.W.2 developed four chance fingerprints.

14.P.W.3 Village Revenue Officer for scene observation report. On 16.01.2023 at about 06.00 P.M., on the request of Sub-Inspector of Police,

Narasapur Town, she physically observed the scene and found that the main entrance is situated towards eastern side, and the things in the house were scattered here and there. She further said that the iron safe was found empty.

Ex.P3 is the scene observation report. P.W.3 being a village revenue officer, she visited the scene of offence and acted as a mediator. P.W.1 is the first informant. Basing on his statement, criminal law was set into motion. No prudent person would go to police station if no offence had happened. On careful perusal of Ex.P1 and Ex.P3 and evidence of P.W.1 and P.W.3, the 5 prosecution has established the offence and the evidence of P.W.1 proved that

M.O.1 to M.O.6 were found missing from his house. P.W.1 during his evidence shown his bank statement through his mobile. Upon verification, it found cash Rs.7,30,000/-. P.W.1 is involving real estate business and he used to sell and purchase lands. Therefore, there is every possibility of accumulation of a huge some of cash in the house. The account statement of

P.W.1 is evident that he is holding a huge amount of cash. Therefore, the testimony of P.W.1 is reliable. Thus, the prosecution established the offence and M.O.1 to M.O.6 were found missing from house of P.W.1.

15.On 16.01.2023, P.W.2 visited the scene and developed “A” chance fingerprint at the steel alaramah side portion, “B”, ”C” and “D” chance fingerprints were developed on the steel alamarah door. The chance fingerprints “B” and “C” matched with the neighbor of P.W.1 namely P.Sai

Bahdun. Chance fingerprint “D” remained unused was unfit for comparison.

Chance fingerprint “A” was identified, and the right middle finger was found to match with A.1. Through P.W.2, Ex.P2 Fingerprint Report was marked.

16.P.W.2 is a fingerprint expert, working in Crime Investigation Department wing. P.W.2 used titanium dioxide and manganese dioxide powder and developed chance fingerprints. However, he has not specified the name of the powder in Ex.P.2 Report, though he developed chance fingerprints at the scene of offence house. The learned counsel for the accused cross examined the P.W.2 at length, but nothing could be elicited to discredit the testimony of

P.W.2 and Ex.P2 Report.

17.On perusal of evidence of P.W.2 and Ex.P2 Report, it is established that the right middle finger of A1 matched with chance fingerprint “A”, which was found at the scene of offence house. Therefore, the presence of A1 at the scene of offence house is clearly established. M.O.7 is the Iron rod seized from the possession of A.1. The locks at the scene of offence were broke open. The oral evidence of P.W.1 and P.W.3 established that the locks and 6 house doors were broke open with a hard object. P.W.6 seized the Iron rod from the possession of A1. Merely because P.W.6 is a police witness, his testimony need not be rejected. Thus, the prosecution has been able to prove the guilty of the A.1 under section 457 IPC. The presence of A.2 and A.3 was not established at the scene of offence. Therefore, the prosecution has failed to establish the guilty of the A.2 and A.3. No direct evidence is available on record, that the accused committed theft at the scene of offence.

Accordingly, the A.1 is found guilty for the offence punishable under section 457 IPC. A.2 and A.3 are found not guilty for the offence punishable under section 457, 380 IPC.

18. Alternative Charge:

P.W.4 is the mediator for arrest and seizure of M.O.1 to M.O.7. On 19.01.2023 at about 7.30 to 8.00 A.M., she received a phone call from P.W.6 and asked her to accompany with Town police. Accordingly, she joined with investigation. In her presence, P.W.6 detained the A1 to A3 near Pillakaluva,

Rustumbada, which is house of A.1. The testimony of P.W.4 established about the seizure of Rs.2,43,000/-, gold bracelet, black breed chain from A.1,

Rs.2,44,000/-, gold chain, ring, silver bowl from A.2 and cash of Rs.2,43,000/-, gold ring and silver articles from A3. P.W.4 further testified that after offence, the accused reached to backside of the Government Hospital, Narasapur, there they distributed the stolen property. In her presence, P.W.6 detained the accused. During interrogation, A.1 produced Rs.43,000/- and spent away some amount. P.W.4 further stated A.2 produced Rs.40,000/- before P.W.6 and spent away some amount out of Rs.50,000/-. Further, A3 produced

Rs.43,000/- and spent away some amount. Through P.W.4, Ex.P4 Mediators

Report was marked. M.O.7 is the Iron rod, which was used to commit offence.

The evidence of P.W.4 is corroborated by Ex.P4.

19.P.W.5 is one of the investigation officer who spoke about the registration of F.I.R. He received Ex.P1 report, immediately, he issued Ex.P5 FIR. The offence is grave in nature, he handed over the investigation to P.W.6. The 7 learned counsel for accused cross examined the P.W.5, but did not elicit anything to disprove the registration of Ex.P5 FIR.

20.P.W.6 is the investigation officer. On 16.01.2023, he received information about the registration of Ex.P5 FIR from P.W.5. Immediately, he took up investigation and visited the scene to get the clues. He instructed

P.W.5 to secure mediators to visit the scene of offence house bearing No.6-9- 5/1 situated 10th ward, Jyosulavari Street. There he got prepared Ex.P3 Scene observation report through P.W.3. The evidence of P.W.2 and P.W.6 is corroborated. On the request of P.W.6, the fingerprint expert visited the scene, developed chance fingerprints to get the clues about the culprits. On 18.01.2023, P.W.6 received Ex.P2 report and got the clues. On 19.01.2023 at 8.00 A.M., he secured P.W.4 and L.W.13-R.Suresh and raided house of A1 situated at Pillakaluva, Rustumbada. P.W.6 not only record the disclosure statement of accused, but also seized cash Rs.2,43,000/- and one gold chain, bracelet and Iron rod from A1, Rs.2,44,000/-, gold black breed chain with locket, silver anklets from A2 and Cash of Rs.2,43,000/-, gold ring, silver bowl from A3. Therefore, the disclosure statement recorded by P.W.6 in the presence of P.W.4 and L.W.13 do not fall under section 25 of Indian Evidence

Act.

21.Ex.P7 is the four photographs. The oral evidence of P.W.1, P.W.3 established that the things at the scene of offence house were scattered here and there. On verification of Compact Disk, which attached to Ex.P7 photographs, do not found any content. The oral testimony of P.W.1 and P.W.3 is supported by Ex.P7 Photographs. Mere filing empty CD with Ex.P7, it is a defect on the part of investigation.

22.The evidence of P.W.1 clearly established that he went to Eluru on 15.01.2023 at 7.00 P.M., after locking his house doors. On the next day, he received phone call from his neighbor and informing him about the offence.

Immediately, he rushed to the scene and verified the things and found missing 8 cash Rs.7,50,000/- and gold and silver articles. On the same day, the fingerprint expert i.e., P.W.2 visited the scene and developed chance fingerprints. M.O.1 to M.O.6 are found missing from the scene of offence house on 15.01.2023. Later, it were recovered from A1 to A3 along with cash

Rs. 7,30,000/-. M.O.7 also recovered from A1.

23.In the instant case, theft occurred on 15.01.2023 after 7.00 P.M. M.O.1 to M.O.6 and M.O.7 were recovered and the same are found missing in the house of P.W.1. Therefore, the discrepancy occurred in the evidence of P.W.1 do not affect the case of the prosecution, it cannot go to the roots of the prosecution case.

24. Under section 114 of Indian Evidence Act:- The Court may presume -

(a) that a man, who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession ;

25.As already discussed earlier, M.O.1 to M.O.6 were found missing from the house of P.W.1 and were subsequently recovered from the possession of

A1 to A3. Therefore, M.O.1 to M.O.6 deemed to be stolen property. It is for the accused to account for the possession of a huge sum of cash and the gold and silver articles. However, no explanation has been provided by A1 to A3 regarding the possession of Rs.7,30,000/- cash and M.O.1 to M.O.6 valuables. Therefore, I am of the opinion that the accused were aware that

M.O.1 to M.O.6 were stolen property, which satisfies the necessary condition for invoking Section 411 IPC. The testimonies of P.W.6 and P.W.4 clearly establish the seizure of M.O.1 to M.O.6 from A1 to A3. Furthermore, P.W.1 identified that M.O.1 to M.O.6 as the items missing from his house. Therefore,

I conclude that M.O.1 to M.O.6 are stolen properties and were recovered from the possession of A1 to A3. Accordingly, the prosecution has successfully established the guilt of A1 to A3 beyond all reasonable doubt for the offence 9 punishable under Section 411 IPC. Accordingly, the alternative charge is answered.

26.In the result, I found A.1 to A.3 are not guilty for the offence punishable under section 380 IPC and they are acquitted under section 248(1) of Cr.P.C.

27.A.1 is found guilty for the offence punishable under section 457 IPC and he is convicted under section 248(2) of Cr.P.C., and A.2 and A.3 are not guilty for the offence punishable under section 457 IPC and they are acquitted under section 248(1) of Cr.P.C.

28.Further, A.1 to A.3 are found guilty for the offence punishable under section 411 IPC and they are convicted under section 248(2) of Cr.P.C.

Dictated to the Stenographer, corrected, and pronounced by me in open

Court, on this the 24th day of April, 2025. KANCHIDigitally signed by

KANCHI SRINIVAS

SRINIVASDate: 2025.04.24 13:51:04 +0530

Additional Civil Judge (Junior Division)-

cum-Addl. Judicial Magistrate of I Class, Narsapur.

HEARING ON QUANTUM OF SENTENCE

Accused No.1 reported that he is having small children and old aged father who is suffering from cardiatic disease, prays the Court to take lenient view while imposing the sentence.

Accused No.2 reported that his wife is carrying 9th month pregnancy and prays the Court to take lenient view while imposing the sentence.

Accused No.3 reported that he is having two daughters who are suffering from ill-health and he is the only sole bread winner to his family and also prays the Court to take lenient view while imposing the sentence.

10

Accused No.1 to 3 are involved in property offence, therefore they are not entitled any benevolent provisions U/sec.360 of Cr.P.C., and Sec.3 and 4 of Prohibition of Offenders Act. Furthermore they are having criminal antecedents. Therefore, I am not going to take any lenient view.

Accused No.1 shall convicted to Rigorous Imprisonment for Two (2) years and shall pay fine of Rs.1,000/- for the offence punishable U/sec.457 of

IPC. In default of payment of fine, he shall suffer simple imprisonment for another three (3) months. Further, Accused No.1 shall convicted to Rigorous

Imprisonment for one (1) year and shall pay fine of Rs.1,000/- for the offence punishable U/sec.411 of IPC. In default of payment of fine, he shall suffer simple imprisonment for another three (3) months. Both the convictions relating to A.1 shall run concurrently.

Accused No.2 shall convicted to Rigorous Imprisonment for one (1) year and shall pay fine of Rs.1,000/- for the offence punishable U/sec.411 of

IPC. In default of payment of fine, he shall suffer simple imprisonment for another three (3) months.

Accused No.3 shall convicted to Rigorous Imprisonment for one (1) year and shall pay fine of Rs.1,000/- for the offence punishable U/sec.411 of

IPC. In default of payment of fine, he shall suffer simple imprisonment for another three (3) months.

The remand period of Accused No.1 from 19.01.2023 to 07.02.2023, 05.11.2024 to 20.11.2024, 19.02.2025 to 03.04.2025 shall be given set-off.

The remand period of Accused No.2 from 19.01.2023 to 14.03.2023, 07.11.2024 to till date shall be given set-off.

The remand period of Accused No.3 from 19.01.2023 to 14.03.2023, 05.11.2024 to 20.11.2024, 19.02.2025 to 03.04.2025 shall be given set-off.

M.O.1 to M.O.6 and un-marked cash of Rs.7,30,000/- already given to

P.W.1 shall holds good after expiration of appeal time.

11

M.O.7 Iron Rod shall destroy after expiration of appeal time.

The total fine of Rs.4,000/- (Rupees Four Thousand only) shall be remitted to State.

A1 to A3 are informed about their right to free legal aid and to prefer an appeal against this Judgment before the Hon’ble Appellate Court.

The copy of Judgment is given to the A1 to A3 forthwith on free of cost and obtained acknowledgment.

Dictated to the Stenographer, corrected, and pronounced by me in open

Court, on this the 24th day of April, 2025. KANCHIDigitally signed by

KANCHI SRINIVAS

SRINIVASDate: 2025.04.24 13:51:18 +0530

Additional Civil Judge (Junior Division)-

cum-Addl. Judicial Magistrate of I Class, Narsapur.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE

P.W.1 : K.Venkata Ratnam - None - P.W.2 : M.Rajesh,Finger Print Expert P.W.3 : N. Lakshmi P.W.4 : V.Vijaya Lakshmi P.W.5 : K. Sudhakara Reddy P.W.6 : G.Srinivas Yadav, Inspector of Police

EXHIBITS MARKED

FOR PROSECUTION:

Ex.P-1/15-01-2023 : Police Report Ex.P-2/16-01-2023 : Finger Print Report Ex.P-3/16-01-2023 : Scene Observation report Ex.P-4/19-01-2023 : Mediators Report dated. 19.01.2023 at 08.00 A.M. Ex.P-5/16-01-2023 : FIR in Cr.No. 22/2023 of Narasapur Town P.S. Ex.P-6/ : Rough Sketch Ex.P-7/ : Four photos along with C.D.

12

FOR DEFENCE: - Nil -

MATERIAL OBJECTS MARKED

M.O.1: Gold Ring M.O.2: One Gold Chain along with Hanuman Locket M.O.3: One Gold bracelet M.O.4 : Gold Black breed chain with locket M.O.5 : Silver Sandle Bowl M.O.6 : One Silver Anklet M.O.7 : Iron Rod

KANCHIDigitally signed by

KANCHI SRINIVAS

SRINIVAS

Date: 2025.04.24

13:50:32 +0530

Additional Civil Judge (Junior Division)-

cum-Addl. Judicial Magistrate of I Class, Narsapur.

13

APWG100001282023

CALENDAR AND JUDGMENT

District of West Godavari Calendar of Cases tried by ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION),

NARSAPUR

---------------------------------------------------------------------------------------------------------------- Date of offenceReport or complaint Apprehension of Accused Release on bail (1) (2) (3) (4) --------------------------------------------------------------------------------------------------------------- 15.01.2023 16.01.2023 19.01.2023 A2-Jail A1-07.02.2023 A3-14.03.2023 --------------------------------------------------------------------------------------------------------------- Commencement of trial Close of trial Sentence of order Explanation for delay (5) (6) (7) (8) --------------------------------------------------------------------------------------------------------------- 29.11.2024 21.04.2025 24.04.2025 Due to non-production of witnesses from time to time. ---------------------------------------------------------------------------------------------------------------- Judgment of Calendar Case No.68/2023 on the file of Additional Civil Judge (Junior Division ), Narsapur. -------------------------------------------------------------------------------------------------------- Complainant: The State Rep. by the Sub-Inspector, Narasapur Town Police Station in Crime No. 22/2023 ------------------------------------------------------------------------------------------------------- Name of the Accused Father Name Age Caste/Religion: Calling Village --------------------------------------------------------------------------------------------------------

1. Kothapalli Naresh, S/o Venkanna, Aged 34 years, Rustumbada, Narasapur Town.

2. Beera Ramesh, S/o Venkateswara Rao, Aged 34 years Masayyapeta, H/o Billakudu Village, Kothapeta Mandal, East Godavari District.

3. Gubbala Bhaskar, S/o Naga Pandu, Aged 34 years, Weavers Colony, Prakash Nagar, Narasapur Town. ------------------------------------------------------------------------------------------------------- Offence: Under Section 457,380 or 411 of Indian Penal Code Finding: A1 to A3 are found not guilty under section 380 IPC A1 is found guilty under section 457 IPC. A1 to A3 are found guilty under section 411 IPC. Sentence :

14

In the result, I found A1 to A3 are not guilty for the offence punishable under section 380 IPC and they are acquitted under section 248(1) of Cr.P.C.

A1 is found guilty for the offence punishable under section 457 IPC and he is convicted under section 248(2) of Cr.P.C and A2 and A3 are not guilty for the offence punishable under section 457 IPC and they are acquitted under section 248(1) of Cr.P.C.

Further, A1 to A3 are found guilty for the offence punishable under section 411 IPC and they are convicted under section 248(2) of Cr.P.C.

Accused No.1 shall convicted to Rigorous Imprisonment for Two (2) years and shall pay fine of Rs.1,000/- for the offence punishable U/sec.457 of

IPC. In default of payment of fine, he shall suffer simple imprisonment for another three (3) months. Further, Accused No.1 shall convicted to Rigorous

Imprisonment for one (1) year and shall pay fine of Rs.1,000/- for the offence punishable U/sec.411 of IPC. In default of payment of fine, he shall suffer simple imprisonment for another three (3) months. Both the convictions relating to A.1 shall run concurrently.

Accused No.2 shall convicted to Rigorous Imprisonment for one (1) year and shall pay fine of Rs.1,000/- for the offence punishable U/sec.411 of

IPC. In default of payment of fine, he shall suffer simple imprisonment for another three (3) months.

Accused No.3 shall convicted to Rigorous Imprisonment for one (1) year and shall pay fine of Rs.1,000/- for the offence punishable U/sec.411 of

IPC. In default of payment of fine, he shall suffer simple imprisonment for another three (3) months.

The remand period of Accused No.1 from 19.01.2023 to 07.02.2023, 05.11.2024 to 20.11.2024, 19.02.2025 to 03.04.2025 shall be given set-off.

The remand period of Accused No.2 from 19.01.2023 to 14.03.2023, 07.11.2024 to till date shall be given set-off.

15

The remand period of Accused No.3 from 19.01.2023 to 14.03.2023, 05.11.2024 to 20.11.2024, 19.02.2025 to 03.04.2025 shall be given set-off.

M.O.1 to M.O.6 and un-marked cash of Rs.7,30,000/- already given to

P.W.1 shall holds good after expiration of appeal time.

M.O.7 Iron Rod shall destroy after expiration of appeal time.

The total fine of Rs.4,000/- (Rupees Four Thousand only) shall be remitted to State.

A1 to A3 are informed about their right to free legal aid and to prefer an appeal against this Judgment before the Hon’ble Appellate Court.

The copy of Judgment is given to the A1 to A3 forthwith on free of cost and obtained acknowledgment.Digitally signed by

KANCHIKANCHI

SRINIVAS

SRINIVAS

Date: 2025.04.24

13:50:42 +0530

Additional Civil Judge (Junior Division)-

cum-Addl. Judicial Magistrate of I Class, Narsapur.

Copy submitted to the Hon’ble I Additional District Judge, West Godavari, Eluru.

Copy to the Mandal Legal Service Authority, Narasapur.

APWG100003242024

IN THE COURT OF THE ADDITIONAL CIVIL JUDGE (JUNIOR

DIVISION)-cum-ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS

NARSAPUR.

PRESENT:- Sri K. Srinivas,

Additional Civil Judge (Junior Division)-cum-Additional Judicial

Magistrate of I Class,

Narasapur.

Thursday, this the 24th day of April, 2025

STC. No. 116 of 2024

Between:

Guthikonda Veera Venkata Satyanarayana, S/o Satyam, Aged 60 years, Male, Bsiness, D.No.9-188/3, Mogalthur

...... Complainant.

Village and Mandal.

And

Inukonda Yesu Raju, S/o Ramarao, Aged 43 years, Male, Cultivation, Nar SRi Ramalayam Temple, Agisettivari ….… Accused. Meraka, Perupalem North Village, Mogalthur Mandal.

This case is coming before me on 22-04-2025 for final hearing in the presence of Sri Ch. Danayya Naidu, Advocate for Complainant and Sri K. Ramesh, Advocate for accused and having stood over the matter for consideration till this day, this Court delivered the following :

J U D G M E N T

1.This is a private Complaint filed by the Complainant against the accused for the offence punishable under section 138 of the Negotiable Instruments

Act, praying this Court to punish the accused and to award compensation.

2.The brief averments of the Complaint as follows:- 2

The accused approached the complainant on 09.08.2021, borrowed

Rs.5,00,000/- and executed a promissory note, with a condition to repay the same with yearly compound interest at a rate of 24 % on demand either to the complainant or as per his order.

3. Later, inspite of several demands made by the complainant personally and through mediators, the accused did not repay the promissory note debt.

Subsequently, on the demand of the complainant, on 27.02.2024, the accused issued a cheque bearing No.000004 for Rs.5,00,000/- drawn on Andhra Bank now Union Bank of India, Rustumabda branch for partial discharge of promissory note debt. On 29.02.2024, the complainant presented said cheque for encashment. Later, it was dishonored with an endorsement funds insufficient.

4.On 04.03.2024, the complainant issued legal notice with a demand to repay the cheque amount, within 15 days of receipt of legal notice. But the accused refused to take the service on 12.03.2024. Hence, the complainant filed the private Complaint.

5.This Court took cognizance for the offence punishable under section 138 of Negotiable Instruments Act against the accused.

6.On appearance of accused, copies of documents were furnished to the accused as contemplated under section 207 of Cr.P.C.

7. On further appearance of accused, he was examined under section 251

Cr.P.C., by explaining the accusation for the offence punishable under section 138 of the Negotiable Instruments Act, for which, he pleaded not guilty and claimed to be tried.

8.The complainant as P.W.1 and he produced Ex.P-1 to Ex.P-5 documents. Ex.P.1 is the certified promissory note, dt. 09.08.2021, Ex.P.2 is the original cheque, dt. 27.02.2024. Ex.P.3 is the original cheque return memo, 3

dt. 01.03.2024. Ex.P.4 is the office copy of legal notice. Ex.P.5 is returned

postal cover. The first attesting witness and scribe of Ex.P1 were examined as

P.W.2 and P.W.3.

9.After completion of Complainant evidence, accused was examined under section 313 of Cr.P.C by explaining the incriminating evidence deposed against him by the complainant witnesses, having understood the same, he denied and reported defence evidence.

10.The accused himself examined as D.W.1, further he examined one witness namely Sattineni Trimurthulu on his behalf and no documents were marked on behalf of the accused.

11.Arguments of the complainant:

The learned counsel for complainant contended that the accused availed Rs.5,00,000/- from P.W.1 and executed Ex.P1 on 09.08.2021. P.W.2 and P.W.3 are attesting witness and scribe of Ex.P1, in whose presence, the accused executed Ex.P1 in his favor. Subsequently, the accused did not choose to repay the promissory note debt. On the demand of the complainant, the accused issued subjected cheque and upon presentation, it was dishonored due to insufficient funds. Later, P.W.1 issued legal notice, calling upon the accused for payment of cheque amount. But the accused failed to comply, demand of the legal notice and committed offence under section 138 of Negotiable Instrument Act. Therefore, the complainant prays the court to convict the accused and to award compensation.

12.Argument of the accused:-

On the other hand, the accused contended that he availed Rs.50,000/- from the Tatavarthy Venkata Rao alias Kiran. At that time, he delivered two empty signed cheques and promissory notes and property documents. Even after, discharge of loan. Said Tatavarthy Venkata Rao alias Kiran did not 4 retuned his instruments and property documents. Later, a mediation was took place in said mediation, Tatavarthy Venkata Rao alias Kiran informed the accused that he handed over instruments of the accused to complainant. He further assured the accused that he would see for withdrawal of the case by the complainant. The accused further contended that he did not availed loan from the P.W.1 and that he did not execute Ex.P1. Therefore, he pray the court to dismiss the complaint.

13.Now, the point for determination is:

Whether the Complainant proved that the accused has issued the

cheque bearing No.000004, dated 27.02.2024 for Rs.5,00,000/- to

discharge his liability in which, on presentation it was dishonored due to

insufficient funds and accused also not complied the legal notice which

was issued by the Complainant, thereby committed an offence

punishable under section 138 of Negotiable Instruments Act ?

14. POINT :

The complainant himself examined as P.W.1 and filed his chief examination affidavit, which is nothing but recurrence of the complaint.

According to P.W.1, the accused executed Ex.P1 promissory note, after receiving Rs.5,00,000/-. P.W.2 and P.Nagaraju are an attesting witness of

Ex.P1 and it was scribed by P.W.3. Kasani Ramkumar. This happened at

Slipper shop of the scribe situated at Mogalthur.

15.P.W.1 in his cross examination deposed as follows:

I lend amount to the accused in the year, 2021, but I cannot say the

date of transaction. I do not know remember the day, when I lend

amount. I lend Rs.5,00,000/- to the accused by way of cash. My brother

Yesu Prakasarao also doing cloth business, he used to sell clothes in the

locality of the accused as such I know the accused through my brother. I

5

know the accused in the year, 2001. Prior to that, I have no acquaintance

with the accused. The accused approached me through my brother and

asked me to arrange amount.

16.P.W.1 is doing cloth business and his brother Yesu Prakasarao also doing cloth business. The complainant's brother Yesu Prakasa Raju used to sell the clothes in the area of the accused, as such, P.W.1 become acquainted with accused. The accused is not disputed either the business of P.W.1 or his brother Yesu Prakasarao. Therefore, there is no doubt about the acquaintance of the P.W.1 and the accused.

17.P.W.1 is aged about 60 years. In his cross examination, he clearly stated that he lent Rs.5,00,000/- to the accused and obtained Ex.P1 promissory note, but he did not spoke about the date of money transaction, however, in addition that P.W.1 has testified this occurred in the month of August and the consideration was cash Rs.5,00,000/-. Therefore, the testimony of P.W.1 is reliable and trustworthy. P.W.1 is aged about 60 years. Mere omission to state the date of Ex.P1 promissory note, there is no adverse against the testimony of P.W.1.

18.P.W.2 is the first attesting witness of Ex.P1. In his chief examination, he stated that on 09.08.2021, the accused borrowed Rs.5,00,000/- from P.W.1 and executed Ex.P1 promissory note. Along with him Pattapu Nagaraju is an attesting witness of Ex.P1 and it was scribed by P.W.3. Kasani Ramkumar.

19.P.W.2 in his cross examination deposed as follows:

The accused is resident of Perupalem village. I know the accused

for the last 3 years. The accused came to my tiffin center to have tiffin.

Ex.P1 transaction took place in the slipper shop of P.W.3.K.Ramkuamr.

The accused asked me to accompany with him and he informed me that

he going to borrow amount from the complainant. The complainant is

6

doing cloth business by roaming door to door. The accused put one

signature on promissory note. Me also signed on promissory note. In my

presence, the complainant lend amount to the accused. The complainant

lend Rs.5,00,000/- cash to the accused.

20.P.W.3 is the scribe of Ex.P1 promissory note. In his chief examination, he stated on 09.08.2021, he scribed Ex.P1 promissory note. In his presence, and the presence of P.W.2 and P.Nagaraju, the accused borrowed

Rs.5,00,000/- from P.W.1 and purpose of borrowing was family expenses and for investment in business.

21.P.W.3 in his cross examination deposed as follows:

On date of money transaction, I have scribed Ex.P1 only. I never

visited the house of complainant, so also house of accused. The

accused is resident of Perupalem village, but I do not know other details.

I have not counted the cash.

22.The evidence of P.W.2 and P.W.3 was observed that the Ex.P1 transaction took place in the slipper shop, which belongs to scribe. The consideration of Ex.P1 is Rs.5,00,000/-. The accused after receiving cash consideration from P.W.1, executed Ex.P1.

23.Upon perusal of Ex.P1 promissory note, the purpose of the borrowing was family expenses and for business investment. Therefore, the testimony of

P.W.2 and P.W.3 is inspired the confidence of the court and reliable. Mere omission to state date of execution of Ex.P1 by P.W.2, during cross examination not at all fatal case of the P.W.1.

24.P.W.2 without verifying the Ex.P1, he clearly stated that the accused put one signature on Ex.P1 Promissory note. Therefore, the testimony of P.W.2 is fully corroborated with P.W.1 and supported by Ex.P1. Nothing could be elicited to discredit the testimony of P.W.2 and P.W.3. Thus, the complainant 7 has established the execution of Ex.P1 by the accused. In Bonala Raju and another v. Sarupuru Sreenivasulu 2006(2) ALD 202, wherein the Hon’ble

High Court of Andhra Pradesh at Hyderabad observed that “Once execution is proved, the presumption under Section 118 of Negotiable Instruments Act that it is supported by consideration automatically applies.”

25.The accused merely denied the consideration under Ex.P1. However,

P.W.2 and P.W.3 have clearly stated that the accused received cash consideration Rs.5,00,000/- and executed Ex.P1 promissory note. This happened in the slipper shop of scribe. P.W.1 also stated that the Ex.P1 money transaction took place in the slipper shop of P.W.1. Therefore, there is no doubt about the consideration. The accused has failed to prove non existence of consideration. Thus, I am concluded that the complainant has established the existence of legally enforceable debt.

26.Apart from other contention, the financial capacity of P.W.1 is under dispute. P.W.1 is doing cloth business, which not disputed by the accused.

P.W.2 also stated that complainant is doing cloth business. The complainant's son is working as Software Engineer in Sweden and he used to transfer amount to the P.W.1. The same is corroborated by P.W.2.

27.P.W.2 and P.W.3 have denied the suggestion that the accused did not borrow any amount from P.W.1. Furthermore, neither P.W.1 nor P.W.3 has got acquaintance with Tatavarthy Venkata Rao alias Kiran. Therefore, there is no doubt about the source of fund advance to the accused. Even according to

D.W.2, the accused availed loan from 4 or 5 persons, but he cannot say the names of the individuals from whom, the accused avail loan. When D.W.2 failed to spoke about the names of the individuals who lending the amount to the accused, how he spoke the accused is did not availed any loan from

P.W.1.

8

28.In the recent judgment of Hon’ble Supreme Court in Ashok Singh v.

State of U.P., decided on 02.04.2025. The Apex court observed that “the onus is not on the complainant at the threshold to prove his capacity/financial wherewithal to make the payment in discharge of which the cheque is alleged to have been issued in his favour. The Hon'ble Apex court relied upon the judgment in Rohitbhai Jivanlal Patel v. State of Gujarat, (2019) 18 SCC 106.

Even after purportedly drawing the presumption under Section 139 of the NI Act, the trial court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the trial court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the appellant- accused. The aspect relevant for consideration had been as to whether the appellant-accused has brought on record such facts/material/circumstances which could be of a reasonably probable defence.

29.Admittedly, the accused is the drawer of Ex.P2 Cheque and the signature under Ex.P2 is not under dispute. Therefore, the presumption under section 139 of Negotiable Instrument Act would operate. Therefore, the court has no option except to draw the presumption under section 139 of Negotiable

Instrument Act. In view of the law settled by the Hon'ble Apex court in Rohitbai

Jivanlal supra case, the objection relating to financial capacity of P.W.1 is not accepted. In fact, no evidence led by the accused to disprove the existence of consideration under Ex.P1.

30.It is time to discuss whether the accused raised probable defense to disprove presumptions under section 139 of Negotiable Instrument Act. The 9 accused himself examined as D.W.1. He does not know either P.W.1 or an attestors and the scribe of Ex.P1. He issued a cheque to Tatavarthy Venkata

Rao alias Kiran in connection with hand loan Rs.50,000/-. This happened at

Bhimavaram. D.W.1 is not only issued a promissory note, but also a cheque.

However, said Tatavarthy Venkata Rao alias Kiran cheated him and obtained instruments for providing loan. Subsequently, he discharged debt to Tatavarthy

Kiran. But, he did not returned his instruments and asked him to act as surety relating to other transaction, which Tatavarthy Venkata Rao avail loan from individual. When the accused refused to stood as surety to Tatavarthy Venkata

Rao, he develop grudge and filed present case through the complainant.

31.D.W.1 in his cross examination deposed as follows:

I have no disputes with complainant, attestors and scribe. In

August, 2019, Tatavarthy Venkata Rao alias Kiran arranged Rs.50,000/- to

me. Within 15 days, I discharged said amount along with interest.

32.D.W.2-Sattineni Trimurthulu in his chief examination said that the accused previously borrowed Rs.50,000/- from Tatavarty Venkata Rao alias

Kiran. Later, he discharged the same. According to D.W.2, In August, 2024, the accused informed him that he availed loan from Tatavarthy Kiran. At that time, the accused and Dasireddy Ramu and another person were present.

33.D.W.2 in his cross examination deposed as follows:

I cannot say the date, month and year, when the accused borrowed

amount from Tatavarthy Venkata Rao alias Kiran. It is true that I was not

present at that time. I cannot say the date, month and year, when the

accused discharged the debt to Tatavarthy Kiran.

34.As seen from the above evidence, it is clear neither the accused nor his witness i.e., D.W.2 spoke about the date, month and year, when the accused availed loan from Tatavarthy Venkata Rao alias Kiran. Further, D.W.2 was not 10 present, at the time of discharging the loan to Tatavarthy Kiran. Therefore, there is no evidence record to prove the accused avail loan from Tatavarthy

Venkata Rao alias Kiran.

35.According to D.W.1, within 15 days, he discharged the loan to Tatavarthy

Venkata Rao alias Kiran, but he neither gave a police report nor issued legal notice for return of instruments. D.W.2 is an interested witness to the accused and both are involved in criminal case in C.C.No.294/2024 Mogalthur Police

Station.

36.According to D.W.1, he delivered one cheque and promissory note to

Tatavarthy Venkata Rao alias Kiran. Per contra, D.W.2 stated the accused handed over two cheques and two promissory notes to Tatavarthy Kiran. In addition that D.W.2 stated the accused not only delivered instruments and also property documents. The same is not deposed by the D.W.1 during his evidence. Furthermore, the testimony of D.W.2 silent about the description and nature of the documents, handed over by the accused to so called Tatavarthy

Kiran. It is the case of the complainant that he has no acquaintance with so called Tatavarthy Kiran. Therefore, the evidence of D.W.1 and D.W.2 is untrustworthy and unreliable.

37.D.W.2 is an interested witness and he intention to protect the skin of the accused. If really, the accused availed loan from Tatavarthy Venkata Rao alias

Kiran and discharged the same within 15 days along with interest what prevented the accused to issue legal notice for return of his instruments. In the instant case, as already stated earlier, no police report or legal notice was sent to Tatavarthy Venkata Rao alias Kiran demanding him to return of instruments.

Therefore, there is no evidence on record to suggest the complainant misused the cheque, which given to another person. It is crucial mention here that the accused failed to prove loan and also not examined Tatavarthy Kiran. The evidence of the accused is untrustworthy and his explanation is unbelievable.

11

No prudent person would believe the story of the accused. Thus, the complainant established the accused issued cheque towards discharge of legally enforceable debt. Thus, I am concluded that the accused has failed to rebut the presumptions under section 139 of Negotiable Instrument Act.

Accordingly, the point is answered.

38.In the result, I found the accused is guilty for the offence punishable under section 138 of the Negotiable Instruments Act. Accordingly, he is convicted for the same under section 255 (2) of Cr.P.C.

Typed to my dictation by the Stenographer on Computer, corrected and

pronounced by me in open Court, this the 24th day of April, 2025.

KANCHIDigitally signed by KANCHI

SRINIVAS

SRINIVASDate: 2025.04.24 11:55:47 +0530

Additional Civil Judge (Junior Division)-

cum-Addl. Judicial Magistrate of I Class, Narsapur.

HEARING ON QUANTUM OF SENTENCE

Accused is reported that he is having three daughters and they are studying and also having old aged parents, he is the sole bread winner of his family and prays the court to take lenient view, while imposing the sentence.

Chapter XVII of Negotiable Instrument Act enacted to create efficacy and cheque transaction. Therefore, the accused is not entitled any benevolent provision under section 360 Cr.P.C. and Section 3 and 4 of Probation of

Offenders Act.

Accordingly, the accused shall convicted to undergo Rigorous imprisonment for Six (6) Months and shall pay compensation of Rs.5,00,000/- to the complainant under section 357 Cr.P.C. In default of payment of compensation, he shall suffer simple imprisonment for another Three (3)

Months.

12

Accused is not in judicial custody during the course of trial. Therefore, no need to pass order U/sec.428 Cr.P.C.

Accused is informed about his right to free legal aid and to prefer an appeal against this Judgment before the Hon’ble Appellate Court.

The copy of Judgment is given to the accused forthwith on free of cost and obtained acknowledgment.

Typed to my dictation by the Stenographer on Computer, corrected and

pronounced by me in open Court, this the 23rd day of April,2025.

Digitally signed by

KANCHI

KANCHI SRINIVAS

SRINIVAS

Date: 2025.04.24

11:55:57 +0530

Additional Civil Judge (Junior Division)-

cum-Addl. Judicial Magistrate of I Class, Narsapur.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR COMPLAINANT: FOR DEFENCE:

P.W.1 : G.V.Venkata Satyanarayana D.W.1Inukonda Yesu Raju

P.W.2 : Kajuluri MuniyyaD.W.2Sattineni Trimurthulu

P.W.3:Kasani Ramkumar

EXHIBITS MARKED

FOR COMPLAINANT:

Ex.P-1/09.08.2021: Certified copy of Promissory note for Rs.5,00,000/-

Ex.P-2/27.02.2024: Original Cheque bearing No. 000004 for Rs.5,00,000/- drawn on Union Bank of India, Rustumabda branch

Ex.P-3/01.03.2024: Original Cheque return memo

Ex.P-4/04.03.2024 :Office copy of legal notice

Ex.P-5/12.03.2024Returned postal cover 13

FOR DEFENCE: NIL

Digitally signed

KANCHIby KANCHI

SRINIVAS

SRINIVAS

Date: 2025.04.24

11:56:11 +0530

Additional Civil Judge (Junior Division)-

cum-Addl. Judicial Magistrate of I Class, Narsapur.

14

APWG100003242024

IN THE COURT OF THE ADDITIONAL CIVIL JUDGE (JUNIOR

DIVISION)-cum-ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS

NARSAPUR.

STC. No.116 of 2024

Date of offence:29.02.2024 Date of complaint:12.04.2024 Date of cognizance taken:20.06.2024

Date of apprehension of accused:--

Date when accused was released:-- on bail

Date of commencement of trial:13.12.2024

Date of close of trial:22.04.2025

Date of Judgment:24.04.2025 Complainant: Guthikonda VeeraVenkata Satyanarayana, S/o Satyam, Aged 60 years, Male, Business, D.No.9-188/3, Mogalthur Village and Mandal.

Name ofHusband/AgeReligiVillageMandal/Occupation

Accusedfather’sonDistrict name

InukondaS/o43 --Nar SRi RamalayamCultivation, Yesu Raju, RamaraoyearTemple, Agisettivari s,Meraka, Perupalem NorthVillage, Mogalthur Mandal 15

Nature of offence: Dishnour of Cheque

Section of Law: U/s.138 of Negotiable Instruments Act.

Plea of the Accused: Pleaded not guilty

Finding of the Court: Found guilty

Sentence or Order:

In the result, I found the accused is guilty for the offence punishable under section 138 of the Negotiable Instruments Act. Accordingly, he is convicted for the same under section 255 (2) of Cr.P.C.

Accordingly, the accused shall convicted to undergo Rigorous imprisonment for Six (6) Months and shall pay compensation of Rs.5,00,000/- to the complainant under section 357 Cr.P.C. In default of payment of compensation, he shall suffer simple imprisonment for another Three (3) Months. Accused is not in judicial custody during the course of trial. Therefore, no need to pass order U/sec.428 Cr.P.C.

Accused is informed about his right to free legal aid and to prefer an appeal against this Judgment before the Hon’ble Appellate Court.

The copy of Judgment is given to the accused forthwith on free of cost and obtained acknowledgment. Digitally signed by

KANCHI

KANCHI SRINIVAS

SRINIVAS

Date: 2025.04.24

11:56:30 +0530

Additional Civil Judge (Junior Division)-

cum-Addl. Judicial Magistrate of I Class, Narsapur.

C.C.NO.65/2023 Addl.Civil Judge (Junior Division), PKL. Dt.07.05.2024.

1

IN THE COURT OF THE ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION),

PALAKOL.

Present:Sri K.Srinivas, Addl. Civil Judge (Junior Division), Narsapur, FAC/ Addl. Civil Judge (Junior Division), Palakol.

Tuesday, this the 7th day of May, 2024.

C.C.No.65/2023

Between:

State represented by the Sub-Inspector of Police, Palakol Town Police Station. …Complainant And:

1. Devara Nageswararao @ Nani, S/o Ramakrishna, 26 years, C/Yadava, R/o D.No.6-190, Kothapeta, Vempa Village, Bhimavaram Mandal.

2. Bokka Vara Satya Lakshmi Narayana @ Naresh, S/o Krishna, 28 yrs, C/S.Balija, R/o D.No.5-167/1, Vempa Village, Bhimavaram Mandal. …Accused

This case is coming before me on 03.05.2024 for final hearing in the presence of the Assistant Public Prosecutor for the State and Sri P. Poorna Chandra Rao, Legal Aid Counsel for the accused Nos. 1 and 2 and the Accused No.1 and 2 are produced from Jail and after perusing the material available on record and upon hearing the arguments, having stood over for consideration to this day, the Court delivered the following:

J U D G M E N T

1.The State represented by the Sub-Inspector of Police, Palakol Town Police

Station filed charge sheet against the accused Nos.1 and 2 in Crime No.33/2023 for the offence punishable under Sections 356, 382 or 411 r/w 34 of IPC.

C.C.NO.65/2023 Addl.Civil Judge (Junior Division), PKL. Dt.07.05.2024.

2

2.The brief facts of the prosecution case are as follows:

(i)The defacto-complainant/Mutcherla Veera Raghavamma is resident of

Suryatejas Nagar, Palakol. She used to go to walk. On 20.01.2023 she along with her sister-in-law/Y. Jayalakshmi (P.W.5) went to walking. At about 4-00 p.m.

while they were reached near Lions Nagar irrigation canal, Varidhanam road,

Palakol, two persons came on opposite direction and forcibly snatched gold chain from her neck, while she was about to fallen down, the pillion rider taken away her gold chain and pushed her, as a result she sustained injury to her neck.

Her sister-in-law/Y.Jayalakshmi raised huge and cries. Later, her son came there and gave police report. Upon receipt of report from first informant,

LW.12/B.Srinivas, Sub-Inspector of Police, Palakol Town Police Station registered a case in Cr.No.33/2023 U/Secs.356, 382 of IPC. As the defacto- complainant sustained injury, he sent her to Government Hospital, Palakol.

(ii) During the course of investigation, LW.12/B.Srinivas, Sub-Inspector of

Police, Palakol Town Police Station visited the scene of offence, drawn rough sketch and examined material witnesses.

(iii) On 20-01-2023 he secured PW.6/K. Satyanarayana @ Satish who is

CC TV Camera Technician at Palakol. He verified CC TV footage videos in the presence of PW.1 and she identified the persons who snatched her gold chain from her heck on 20.1.2023.

(iv) During the course of investigation on 06.02.2023 Investigating Officer received secret information and that he along with mediators i.e.

PW.4/Ch.Subbarao and LW.10/M. Prakash and his staff were conducting vehicle checking and helmet awareness programme at Ayyappa Swamy Temple, Palakol to Narsapuram road, at that time two persons coming on a two wheeler, on seeing the raid party, the pillion rider tried to thrown away the bag. On that

C.C.NO.65/2023 Addl.Civil Judge (Junior Division), PKL. Dt.07.05.2024.

3

Investigating Officer caught hold them and on enquiry accused confessed about the offence. Later, he recorded the confession statement and seized the gold chain from the possession of the accused. Along with gold chain, he also seized number stolen properties relating to various crimes and got weighted the stolen property, later he sent the accused to judicial custody. Thereafter, he received wound certificate of PW.1 and after completion of investigation he filed charge sheet.

3.Upon perusing the material available on record, cognizance was taken for the offence under Sections 356, 382 alternatively 411 r/w 34 of IPC against A1 and A2.

4.On production of A1 and A2, the copies of the case documents were furnished to them as contemplated under Section 207 of the Cr.P.C.

5. A1 and A2 were examined under Section 239 of Cr.P.C. charge has been framed under Section 356, 382 alternatively 411 r/w 34 of IPC, read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried.

6.To substantiate the case, prosecution has examined PWs.1 to 8 and got marked Exs.P1 to P7 documents, and M.O.1. Prosecution given up

LW.3/Mutcherla Sriram, LW.5/Nilla Pavani, LW.6/Gurram Srinivasa Rao,

LW.10/Medidi Prakash.

7.After closure of prosecution side evidence, A1 and A2 were examined

U/Sec. 313 Cr.P.C. by explaining the incriminating circumstances that are appearing in the evidence of prosecution witnesses against them for which A1 and A2 denied the same and reported no defence evidence.

C.C.NO.65/2023 Addl.Civil Judge (Junior Division), PKL. Dt.07.05.2024.

4

8.Heard arguments of the prosecution as well as the defence.

9. Now the point for determination is that -

1) Whether the prosecution has established the guilt of A1 and A2 for the offence under Sections 356, 382 rw 34 of the IPC beyond all reasonable doubt?

Alternative Charge:

2) Whether the prosecution has made out the case against A1 and A2 for the offence under Section 411 of the IPC beyond all reasonable doubt?

P O I N T No.1:

10.PW.1/Mutcherla Veera Raghavamma in her evidence stated that she used to went on walking. On 20.01.2023 at about 4-00 p.m., she along with PW.5 went to walking, while they were walking at Varidhanam road, Lions Nagar two persons came on a motorcycle in her opposite direction and the pillion rider forcibly snatched gold chain from her neck, while she about to fallen down, the pillion rider pushed her aside and forcibly taken away gold chain, as a result she sustained injury to her right side of her neck. PW.1 further stated that after incident, she raised huge and cry. PW.5 also present there. One passer made a phone call to her son. Through PW.1 Ex.P1 report marked.

11.In Ex.P1 report, it was mentioned that two persons came in her opposite direction on a black colour vehicle. On every next day of the presentation of

Ex.P1 report, PW.1 was re-examined by the investigating officer. In her examination she stated that two persons coming on a white colour vehicle and the pillion rider who is aged about 25 years, wearing black colour shirt snatched gold chain from her neck. She categorically stated in her statement due to pressure and fear, she wrongfully stated that the colour of the vehicle. Therefore, no much credence is given to PW.1 and the evidence of P.W.1 supported Ex.P.1

C.C.NO.65/2023 Addl.Civil Judge (Junior Division), PKL. Dt.07.05.2024.

5 report. Further she identified the Accused Nos.1 and 2 are the persons who snatched the gold chain from her neck.

12.PW.2/Mutcherla Venkata Subbarao, husband of PW.1 and he is not an eye witness.

13PW.5/Y.Vijayalakshmi who is sister-in-law of PW.1 and she accompanied with PW.1 on 20.01.2023. She categorically stated that on 20.01.2023 at about 4-00 p.m., she along with PW.1 were going to walking at Varidhanam road. At that time two persons came on a motorcycle and the pillion rider forcibly snatched the gold chain from the neck of P.W.1 and skulk away, for which PW.1 fallen down on the road and sustained injury to her neck. PW.5 identified the accused as the persons who snatched gold chain from the neck of PW.1 on 20.01.2023.

14.It is the evidence of PW.1 is that at police station she verified CC TV footage and identified the suspects who snatched the gold chain from her neck on 20.01.2023. PW.1 and PW.5 while deposing the evidence before the Court, they identified the accused as the persons who snatched gold chain on 20.01.2023. Except posing of mere suggestions, the learned counsel for the accused did not elicit anything to discredit their evidence and also fails to shake the testimony of P.W.1 and P.W.5.

15.PW.3/Dr.Richard Boon who treated PW.1 on 20.01.2023 at 4-30 p.m. He stated that he examined PW.1 and found one mild scratch injury over right side of the neck of PW.1. Admittedly PW.1 and PW.5 have no disputes with accused and P.W.1 identified the accused in Ex.P5 CC TV footages as the persons who are snatched the gold chain from her neck.

C.C.NO.65/2023 Addl.Civil Judge (Junior Division), PKL. Dt.07.05.2024.

6

16.PW.6/K. Satyanarayana @ Satish who is CC camera Technician and also he retrieved CC TV footages into Ex.P5 Pen drive. He stated that upon the request of S.I. of Police, Palakol Town Police Station, he verified CC TV footages of near Lions Nagar, Canal road, Palakol. In his presence PW.1 identified the accused as the persons who snatched the gold chain from her neck.

17.Ex.P4 is the certificate relating to CC TV footages. Therefore, the prosecution established Ex.P5 photographs are retrieved by PW.6 who issued

Ex.P4 certificate. Therefore the CC TV footages under Ex.P5 are quiet acceptable and prosecution has proved the admissibility of electronic evidence by producing Ex.P4 certificate.

18.PW.1 and PW.5 have no hostility with accused. Therefore they have no reason to give evidence against the accused. As seen from the above evidence prosecution has successfully established the theft and P.W.1 sustained hurt/injury while committing the offence and the accused are the persons who snatched the gold chain from the neck of P.W.1 on 20.01.2023.

19. PW.4/Ch. Subbarao who is mediator for arrest and seizure. He stated that on 06.02.2023 at about 10-30 a.m., he along with his Village Revenue

Assistant/M. Prakash and SI of Police, Palakol Town P.S. and his staff conducted vehicle checking and helmet awareness programme at Ayyappa Swamy Temple,

Palakol-Narsapur road. There they found that accused are coming on two wheeler and pillion rider tried to throw the bag. On that PW.8 detained the accused and recorded the confession statement and seized MO.1 from the possession of Accused.

20.The photographs under Ex.P5 are goes to show that PW.8 and his staff along with PW.4 and LW.10/M.Prakash conducted vehicle checking. With the

C.C.NO.65/2023 Addl.Civil Judge (Junior Division), PKL. Dt.07.05.2024.

7 evidence of Ex.P5 photographs Prosecution has successfully established the raid on 6.2.2023. The evidence of PW.4 and PW.8 are supported the seizure of MO.1 and their evidence corroborated with the evidence of PW.7 who weighed the gold properties.

21.The evidence of PW.4 and PW.8 established the seizure of MO.1 from the possession of the accused. PW.7/K.Mohan weighing man categorically stated that he issued weighing slip for gold property. In his presence PW.8 seized gold articles pertaining to 20 crimes in including MO.1. In this case the prosecution not only recorded the confession statements and also seized stolen property which is

MO.1 which is strong circumstances goes to the accused. PW.1 also identified the MO.1 belongs to her which is missing thing on 20.01.2023.

22.The evidence of PW.4 is indicating that PW.8 stopped the two wheeler of the accused, A2 who is pillion rider is tried to thrown away one bag and on interrogation A1 confessed that they have committed the offence at Lions Nagar,

Palakol therein A1 and A2 forcibly taken away gold chain from the neck of PW.1.

Through PW.4 Ex.P3/mediators report was marked.

23.The evidence of PW.8/B.Srinivas, Investigating Officer is corroborating the registration of F.I.R. and the identification of accused by PW.1 in CC TV footage and also he received Ex.P4 certificate from PW.6 who categorically stated that

PW.1 was identified the accused in CC T.V. footage as the persons who snatched her gold chain from her neck. Therefore the prosecution established the common intention of the accused.

24.The evidence of PWs. 1 and 5 categorically established that the offence on 20.01.2023, the wound certificate of PW.1 and the evidence of PW.3/doctor who treated PW.1 clearly established that PW.1 received scratch injury to her right

C.C.NO.65/2023 Addl.Civil Judge (Junior Division), PKL. Dt.07.05.2024.

8 side of her neck on 20.01.2023. MO.1 which is movable property snatched from the neck of PW.1. While committing the offence as the act of the accused she sustained injury. The presence of accused immediately after commission of offence has established by the prosecution and the accused are not denied their presence near scene of offence on the date of incident.

25.Virtually I am seeing in record, the prosecution successfully established the ingredients U/Sec. 356,382 of IPC. Accordingly, the point is answered in favour of prosecution.

26.As the prosecution established the ingredients U/Sec. 356, 382 of IPC, I am not going to answer the alternative charge U/Sec. 411 of IPC. Accordingly point is answered against the accused.

27. In the result, A1 and A2 are found guilty for the offence punishable under

Sections 356, 382 r/w 34 IPC and accordingly they are convicted under section 248(2) Cr.P.C.

Dictated to the Stenographer, transcribed by her, corrected, and

pronounced by me in open Court, on this the 7 th day of May, 2024.

Digitally signed by

KANCHI

KANCHI SRINIVAS

SRINIVASDate: 2024.05.07 17:22:58 +0000 Addl. Civil Judge (Junior Division), Narsapur, FAC/ Addl. Civil Judge (Junior Division), Palakol.

HEARING ON QUANTUM OF SENTENCE

When questioned A-1 reported that he is old aged parents and one brother and he is the sole bread winner of his family and prays the mercy of the Court.

C.C.NO.65/2023 Addl.Civil Judge (Junior Division), PKL. Dt.07.05.2024.

9

When questioned A-2 reported that he is having one year old daughter and he is the person to look after the welfare of his family and prays the court to take lenient while imposing sentence.

In the present case on my hand, accused committed chain snatching from the neck of PW.1 and she also sustained injury to her neck and there is a previous criminal antecedents to the accused and it is a property offence.

Therefore I am decline to take lenient.

Accused No.1 shall sentenced to undergo Rigorous Imprisonment for

three (3) years and shall pay fine of Rs.5,000/-, in default of payment fine,

he shall suffer simple imprisonment for three (3) months for the offence

U/Sec. 382 of IPC.

Accused No.1 shall further sentenced to undergo Rigorous

Imprisonment for one (1) year and shall pay fine of Rs.5,000/-. In default of

payment of fine, he shall suffer simple imprisonment for a period of three

(3) months for the offence U/Sec. 356 of IPC.

Accused No.2 shall sentenced to undergo Rigorous Imprisonment for

three (3) years and shall pay fine of Rs.5,000/-, in default of payment fine,

he shall suffer simple imprisonment for three (3) months for the offence

U/Sec. 382 of IPC.

Accused No.2 shall further sentenced to undergo Rigorous

Imprisonment for one (1) year and shall pay fine of Rs.5,000/-. In default of

payment of fine, he shall suffer simple imprisonment for a period of three

(3) months for the offence U/Sec. 356 of IPC.

Both the punishments shall run concurrently.

C.C.NO.65/2023 Addl.Civil Judge (Junior Division), PKL. Dt.07.05.2024.

10

The remand period of A1 and A2 from 06.02.2023 to till date shall be given to set-off U/sec.428 of Cr.P.C.

The total fine of Rs.20,000/- shall be remitted to State. M.O.1 two rows of gold chain with dollar is already given to Defacto complainant/P.W.1 shall holds goods after expiration of appeal time. The unmarked property I..e motor bike bearing No. AP 39 QK 4346 Bajaj Pulsar NS White colour bike which was used for committing offence shall be confiscated to the State. The unmarked mobile phones i.e. Readme Blue colour and POCO mobile phone shall be given to accused after expiry of appeal time.

Accused Nos.1 and 2 shall informed their right to prefer appeal against this

Judgment and free legal aid before the Appellate Court.

Accused Nos.1 and 2 shall furnish free copy of Judgment forthwith.

Dictated to the Stenographer, transcribed by her, corrected, and

pronounced by me in open Court, on this the 7 th day of May, 2024.

Digitally signed by

KANCHIKANCHI

SRINIVAS

SRINIVAS

Date: 2024.05.07

17:23:26 +0000 Addl. Civil Judge (Junior Division), Narsapur, FAC/ Addl. Civil Judge (Junior Division), Palakol.

C.C.NO.65/2023 Addl.Civil Judge (Junior Division), PKL. Dt.07.05.2024.

11

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE

PW.1: Mutcherla Veera Raghavamma. -- None -- PW.2: Mutcherla Venkata Subbarao. PW.3: Dr. Richard Boon. PW.4: Ch.Subba Rao. PW.5: Y. Vijaya Lakshmi. PW.6: Kanagalla Satyanarayana @ Satish. PW.7: K. Mohan. PW.8: B. Srinivas, Sub-Inspector of Police, Palakol Town P.S.

EXHIBITS MARKED

FOR PROSECUTION: FOR DEFENCE

Ex.P1: Report given by PW.1 to Police. -- Nil -- Ex.P2: Wound certificate. Ex.P3: Mediators report. Ex.P4: Certificate U/Sec. 65-B of Indian Evidence Act. Ex.P5: Pendrive containing four photographs along with other electronic data. Ex.P6: FIR. Ex.P7: Rough Sketch.

M.Os MARKED

M.O.1: Gold Mangalasutrala chain along with two gold sutralu. KANCHIDigitally signed by

KANCHI SRINIVAS

SRINIVASDate: 2024.05.07 17:23:42 +0000 Addl. Civil Judge (Junior Division), Narsapur, FAC/ Addl. Civil Judge (Junior Division), Palakol.

C.C.NO.65/2023 Addl.Civil Judge (Junior Division), PKL. Dt.07.05.2024.

12

CALENDAR AND JUDGMENT

District of West Godavari Calendar of Cases tried by ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION),

PALAKOL.

---------------------------------------------------------------------------------------------------------- Date of offence Report of complaint Apprehension of AccusedRelease on bail (1) (2) (3) (4) ---------------------------------------------------------------------------------------------------------- 20.01.2023 20.01.202306.02.2023 ** ** Accused has been in judicial and produced before the Court on the date of judgment. ---------------------------------------------------------------------------------------------------------- Commencement of trial Close of trial Sentence of order Explanation for delay (5) (6) (7) (8) ---------------------------------------------------------------------------------------------------------- 13.03.2024 26.04.2024 07.05.2024 Due to non-production of witnesses from time to time. ---------------------------------------------------------------------------------------------------------- Judgment of Calendar Case No.65/2023 on the file of Additional Civil Judge (Junior Division), Palakol. ---------------------------------------------------------------------------------------------------------- Complainant: The State Rep. by the Sub-Inspector of Police, Palakol Town Police Station in Crime No.33/2023. ---------------------------------------------------------------------------------------------------------- Name of the Accused Father Name Age Caste/Religion: Calling Village ----------------------------------------------------------------------------------------------------------

1. Devara Nageswararao @ Nani, S/o Ramakrishna, 26 years, C/Yadava, R/o D.No.6-190, Kothapeta, Vempa Village, Bhimavaram Mandal.

2. Bokka Vara Satya Lakshmi Narayana @ Naresh, S/o Krishna, 28 yrs, C/S.Balija, R/o D.No.5-167/1, Vempa Village, Bhimavaram Mandal. ------------------------------------------------------------------------------------------------------ Offence: Under Section 356, 382 or 411 of the IPC.

C.C.NO.65/2023 Addl.Civil Judge (Junior Division), PKL. Dt.07.05.2024.

13

Finding: A1 and A2 are found guilty for the offence under Sections 356, 382 r/w34 of IPC.

Sentence : A1 and A2 are found guilty for the offence under section 356, 382 r/w 34 IPC and they are convicted for the offence under Section 248(2) of Cr.P.C.

Accused No.1 shall sentenced to undergo Rigorous Imprisonment for

three (3) years and shall pay fine of Rs.5,000/-, in default of payment fine,

he shall suffer simple imprisonment for three (3) months for the offence

U/Sec. 382 of IPC.

Accused No.1 shall further sentenced to undergo Rigorous

Imprisonment for one (1) year and shall pay fine of Rs.5,000/-. In default of

payment of fine, he shall suffer simple imprisonment for a period of three

(3) months for the offence U/Sec. 356 of IPC.

Accused No.2 shall sentenced to undergo Rigorous Imprisonment for

three (3) years and shall pay fine of Rs.5,000/-, in default of payment fine,

he shall suffer simple imprisonment for three (3) months for the offence

U/Sec. 382 of IPC.

Accused No.2 shall further sentenced to undergo Rigorous

Imprisonment for one (1) year and shall pay fine of Rs.5,000/-. In default of

payment of fine, he shall suffer simple imprisonment for a period of three

(3) months for the offence U/Sec. 356 of IPC.

Both the punishments shall run concurrently.

The remand period of A1 and A2 from 06.02.2023 to till date shall be given to set-off U/sec.428 of Cr.P.C.

C.C.NO.65/2023 Addl.Civil Judge (Junior Division), PKL. Dt.07.05.2024.

14

The total fine of Rs.20,000/- shall be remitted to State. M.O.1 two rows of gold chain with dollar is already given to Defacto complainant/P.W.1 shall holds goods after expiration of appeal time. The unmarked property I..e motor bike bearing No. AP 39 QK 4346 Bajaj Pulsar NS White colour bike which was used for committing offence shall be confiscated to the State. The unmarked mobile phones i.e. Readme Blue colour and POCO mobile phone shall be given to accused after expiry of appeal time.

Accused Nos.1 and 2 shall informed their right to prefer appeal against this

Judgment and free legal aid before the Appellate Court.

Accused Nos.1 and 2 shall furnish free copy of Judgment forthwith. Digitally signed by

KANCHI

KANCHI SRINIVAS

SRINIVASDate: 2024.05.07 17:24:00 +0000 Addl. Civil Judge (Junior Division), Narsapur, FAC/ Addl. Civil Judge (Junior Division), Palakol.

Copy submitted to the Hon’ble I Additional District Judge, West Godavari, Eluru

PJCJ-cum-JMFC, Narsapur C.C.No.153/2015 1

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE-CUM-

JUDICIAL MAGISTRATE OF THE FIRST CLASS, NARSAPUR.

Present: Sri K.Srinivas, I Additional Junior Civil Judge-cum-I

Additional Judicial Magistrate of the First Class, Narsapur,

(FAC) Principal Junior Civil Judge-cum-Judicial Magistrate of

First Class, Narsapur.

Friday, this the 5th day of January, 2024

C.C.NO.153/2015

Between:

Battiprolu Sumitranandan, S/o. Satya Prakash, Hindu, Male, 40 years, Private employee, resident of Tower Street, Narsapur, W.G.District. … Complainant.

And

Smt. Mahammad Khamurun, W/o. Hussain, Door No.11-6-52/3, Gandhi Nagar-2, Mission High School Ground back side, Narsapur, W.G.District. … Accused.

This case is coming before me on 26.12.2023 for final hearing in the presence of Dr. Kothapalli Ramesh, Advocate for the Complainant, and Sri J.Simon Vijay Kumar, Advocate for the accused, and upon perusing the material available on record, and on hearing the arguments, the matter having stood over for consideration to this day, the Court delivered the following:

J U D G M E N T

1. This is a private Complaint filed by the Complainant against the accused for the offence punishable under Section 138 of the Negotiable

Instruments Act praying the Court to punish the accused and to award

Compensation.

2. The brief facts of the complaint are as follows:

The accused for her family expenses and to discharge sundry debts had borrowed an amount of Rs.1,20,000/- from the complainant on 20.10.2012 and executed promissory note agreeing to repay the same with interest at the rate of 24% per annum.

PJCJ-cum-JMFC, Narsapur C.C.No.153/2015 2

3. On 03.03.2015, accused had approached the complainant and issued a cheque bearing No.778329 for Rs.1,00,000/- drawn on Andhra Bank,

Royapeta Branch, Narsapur towards part payment of the promissory note and also assured for encashment.

4. The complainant believing the same, presented the said cheque in his banker for collection on 09.03.2015 at State Bank of India, Royapeta branch, Narsapur, said cheque was returned unpaid with an endorsement “Funds insufficient” vide cheque return memo dated 10.03.2015.

5. Thereafter on 17.03.2015, the complainant got issued legal notice to the accused. Having received the same, accused neither issued reply nor fulfill the demand of the legal notice. Therefore, complainant filed the present complaint under Section 138 of Negotiable Instruments Act.

6. The complaint was taken on file by the Additional Judicial Magistrate of the First Class, Narsapur, for the offence under Section 138 of the NI Act against the accused.

7. After service of summons, the accused made her appearance before the Court and copies of case documents were furnished to her as contemplated under Section 207 of the Cr.P.C.

8. As per the Orders of the Hon'ble Principal District and Sessions

Judge, Eluru in Dis.No.4962 dated 20.07.2015 this case was transferred

from the Court of the Additional Judicial Magistrate of the First Class,

Narsapur, to this Court with a direction to dispose the case according to law.

PJCJ-cum-JMFC, Narsapur C.C.No.153/2015 3

9. On appearance of the accused, she was examined under Section 251 of the Cr.P.C. and substance of the accusation levelled against her for the offence punishable under section 138 of Negotiable Instruments Act read over and explained to her in Telugu, for which she denied the same and pleaded not guilty and claimed to be tried.

10. In order to prove the case, complainant himself examined as PW.1 and marked Ex.P-1 to Ex.P-5 documents. Second attestor, scribe of the promissory note were examined as PWs.2 and 3.

11. After closure of evidence on the side of the complainant, the accused was examined under Section 313 of the Cr.P.C. by explaining the incriminating evidence appearing against the accused by the complainant witnesses, for which she denied the same and reported no defence evidence.

12. Heard the arguments of the Complainant as well as accused. Perused the record.

13. Now the point for determination is that -

Whether the complainant proved that the accused has issued

cheque bearing No.778329 for Rs.1,00,000/- towards discharge

of liability from the account maintained by her and upon

presenting the said cheque in the bank of the complainant for

encashment, the same was returned back by unpaid with an

endorsement “Funds insufficient”, and thereafter the

complainant has issued statutory legal notice to the accused

and the said notice has been served to the accused, even

though, the accused has not paid the cheque amount within the

stipulated time and therefore accused committed the offence

under Section 138 of Negotiable Instruments Act ?

PJCJ-cum-JMFC, Narsapur C.C.No.153/2015 4

P O I N T:

14. Complainant was examined as PW.1 and produced Exs.P1 to P5 documents. Ex.P1 is the original promissory note dated 20.10.2012, Ex.P2 is the cheque bearing No.778329 dated 03.03.2015, Ex.P3 is the cheque return memo dated 10.03.2015, Ex.P4 is the office copy of Legal notice

dated 17.03.2015, Ex.P5 is the Postal acknowledgement dated 20.03.2015.

15. The sum and substance of the case of PW.1 is that on 20.10.2012, accused had borrowed an amount of Rs.1,20,000/- from him and executed

Ex.P-1 promissory note, in the presence of attestors and scribe. To discharge the said debt, accused was issued Ex.P2 cheque and on presentation it was returned for insufficient funds. Thereafter, complainant issued legal notice. Having received the legal notice accused did not pay the cheque amount.

16. It is the one of the contention of the accused is that there is no acquaintance between herself and complainant. PW.1 is native of Narsapur and he is a teacher. He used to earn money by teaching tutorials.

PW.1 in his chief examination deposed as follows:

“From the year 2011, I have acquaintance with the accused. Accused was introduced to me by her husband. I have acquaintance with the accused husband since 2011. Accused asked him amount to meet their personal expenses in the year 2011."

17. PW.2 is the attestor of the promissory note. In his cross-examination, he deposed as follows:

PJCJ-cum-JMFC, Narsapur C.C.No.153/2015 5 “Prior to one month before execution of promissory note, I have acquaintance with the accused. I came to know accused through one

Lakshmana Kumar. I have acquaintance with Lakshmana Kumar prior to execution of promissory note. I know the accused husband by name Hussain prior to five months before the execution of promissory note, I came acquaintance with the accused husband through

Lakshmana Kumar. Accused is residing at Gandhinagar but I do not know occupation of the accused as well as properties belongs to accused. Lakshmana Kumar and accused approached me and requested to act as attestor.”

18. PW.3 is the scribe of the promissory note. In his cross-examination, he deposed as follows:

“I am a resident of K.P.Palem village. I know the accused for the last seven years. I got acquaintance with the accused through one P.

Lakshmana Kumar. I have acquaintance with P. Lakshmana Kumar.

P. Lakshmana Kumar used to do cultivation and also do civil works. I am doing cultivation.”

19. Admittedly, there is no dispute that P.W.1 is resident of Narsapur.

P.W.1 in his cross-examination categorically stated that he got acquaintance with accused through her husband. The same was not disputing the accused. Therefore, the contention of the accused that she has no acquaintance with Complainant is not accepted.

20. PWs.2 and 3 have categorically stated that they have acquaintance with the accused through one Lakshmana Kumar who is no other than the first attestor of the promissory note. PW.1 in his cross-examination crystal clearly stated that attestors and scribe brought the accused to his house

PJCJ-cum-JMFC, Narsapur C.C.No.153/2015 6 and Ex.P-1 promissory note transaction took place on 20.10.2012 at about 11.00 a.m.

21. P.W.1 in his cross-examination stated that accused received cash consideration under Ex.P1 promissory note on 20.12.2012 and it was took place inside of the house situated at Tower Street. One Lakshmana Kumar and PW.2 were acted as attestors, PW.3-Gubbala Chenna Kesava Rao was the scribe of Ex.P1 promissory note.

22. PW.1 further deposed that Ex.P1 promissory note was brought by the accused. She gave 12 bundles of 100 rupee notes to the accused which are not having bank seals. After receiving the consideration, accused was put her signature on promissory note. Thereafter witnesses put their signatures. PW.1 in his cross-examination categorically denied the suggestion that hand writing and signature on the promissory note were made with different pens.

23. PW.2 in his cross-examination deposed as follows:

“Himself and Chennakesava Rao and Lakshmana Kumar went to the house of the complainant along with the accused. Promissory note was executed between 11.00 a.m. to 11.30 a.m., it took about 30 minutes to prepare promissory note. I did not count the amount given by the complainant to the accused. There is no bank seals on the cash bundles. Accused borrowed amount for family expenses.”

24. PW.3 scribe of the promissory note in his cross-examination deposed as follows:

“On 20.10.2012 P.Lakshmana Kumar asked me to scribe promissory note. I did not take any amount for writing promissory note.

P.Lakshmana Kumar asked him to act as scribe. Accused herself

PJCJ-cum-JMFC, Narsapur C.C.No.153/2015 7 brought the promissory note along with stamps. Accused borrowed amount for family expenses for discharging sundry debts. I prepared promissory note with blue pen and attestors also put their signatures with blue pens. I did not count the amount. There are no bank seals on the cash bundles.”

25. As seen from the above evidence, it is clear that Ex.P1 transaction was took place on 20.10.2012 at the house of the complainant situated at Tower

Street. PW.1 categorically stated that accused, attestors and scribe were came to his house. Therefore, the evidence of PW.1 to PW.3 are consistent with regard to the execution of promissory note by accused and passing of consideration under Ex.P1 promissory note.

26. The evidence of PWs.1 to 3 are free from contradictions and fully agreement with Ex.P1 promissory note. With the evidence of PWs.1 to 3 and

Ex.P1, complainant has categorically established the existence of legally enforceable debt.

27. Ex.P2 is the original cheque bearing No.778329 dated 03.03.2015.

PW.1 in his cross-examination deposed as follows:

“Accused gave cheque to him one week prior to presentation of cheque to his banker.

28. As seen from the above evidence, it is clear that accused was approached the complainant and handed over the subjected cheque.

Perused the Ex.P2 cheque which is containing the signatures on both sides.

The entire cross-examination of PW.1, the learned counsel for the accused is not denying the issuance of Ex.P-2 cheque and signature thereon.

PJCJ-cum-JMFC, Narsapur C.C.No.153/2015 8

29. Admittedly, accused is the drawer of the cheque. The subjected cheque which comes into the hands of the complainant. In that situation it is for the accused has to explain how the cheque entered into the hands of the complainant. Therefore, mere denial of case of P.W.1 would not serve any useful prupose. It is immeterial whether the contents of the cheque was filled by some other person other than the drawer of the cheque.

30. Ex.P3 is the original cheque returned memo. It categorically proved that Ex.P.2 cheque was presented in the State Bank of India on 10.03.2015 and it was dishonoured for "funds insufficient".

31. Ex.P4 is the office copy of the legal notice. Ex.P5 is the served postal acknowledgement dated 20.03.2015. The entire cross-examination of PW.1, the learned counsel for the accused is not disputing the signature appearing on Ex.P5 postal acknowledgement and also not disputing the address mentioned in the Ex.P4 legal notice. PW.1 crystal clearly stated that he issued legal notice to accused through his counsel. Therefore, complainant proved the issuance of legal notice and upon receipt of legal notice, accused has failed to pay the cheque amount.

32. In J.Ramarai v Lliyazkhan reported in 2006 Kerala 4672 wherein the Hon’ble Apex Court held that “mere denial of issuance of cheque would not be sufficient, as time and again noted that once the cheque is issued duly signed by the drawer, the presumption under Section 139 of N.I. Act would operates against the drawer of the cheque and it is for the accused to place the credence and probable defence to rebut the presumtions raised in favour of the complainant”.

PJCJ-cum-JMFC, Narsapur C.C.No.153/2015 9

33. It is well settled law that once the execution of cheque is admitted,

Section 139 of N.I. Act mandates the presumption that cheque was issued for the discharge of any debt or other liability. The presumption is rebuttal presumption, the onus is on the accused to raise probable defence. To rebut the presumption is it is for the accused to rely on the evidence led by the complainant or the accused can adduce direct evidence, in order to raise the probable defence, the accused need not enter into witness box in support of his defence.

34. It was a strange suggestion at the end of the cross-examination of

PW.3 was that accused never had the capacity to repay the amount taken from the complainant. Therefore, the suggestion itself indicates that accused had received the amount from the complainant but he had no capacity to repay the same. Except putting mere suggestion, the learned counsel for the accused did not elicit anything to create doubt or dent in the evidence of

PWs.1 to 3. P.W.2 and P.W.3 have no disputes with the accused. Therefore, they have no necessity to depose evidence against the accused.

35. On careful consideration of oral and documentary evidence, complainant has proved the existence of legally enforceable debt and produced cogent and convincing evidence. Therefore, burden lies on the accused to rebut the presumptions. As already stated the entire cross- examination of PW.1, accused has not been disputing the signature and issuance of cheque. Therefore, mere denial of consideration is not sufficient to rebut the presumption under Section 139 of N.I. Act and 118 of N.I. Act.

Thus, the accused has fails to substantiate her defence by adducing legal

PJCJ-cum-JMFC, Narsapur C.C.No.153/2015 10 and acceptable evidence. Accordingly, point is answered in favour of the complainant.

36. In the result, accused is found guilty for the offence punishable under section 138 of the Negotiable Instruments Act. Accordingly, she is convicted for the same under Section 255 (2) of Cr.P.C.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in the open court, this the 5 th day of January, 2024.

KANCHIDigitally signed by

KANCHI SRINIVAS

SRINIVASDate: 2024.01.05 13:00:38 +0000 I Addl. Junior Civil Judge-cum-I Addl. Judl. Magistrate of the First Class, Narsapur, (FAC) Principal Junior Civil Judge-cum-

Judicial Magistrate of the First Class,

Narsapur.

Dt.05.01.2024:

HEARING ON QUANTUM OF SENTENCE

37. Heard on quantum of sentence. Accused reported that

Accused reported that she is suffering from ill-health and her husband and son also suffering from ill-health. Accused furhter reprorted that she is going to settle the case and prays the mercy of the Court while imposing the sentence.

38. It is a cheque bounce case which was filed in the year 2015. Chief examination of PW.1 was recorded on 30.11.2016 and cross-examination was commenced on 07.06.2019 much after three years. This matter was referred to Lok Adalat for two occasions. While at the stage of arguments accused was absconded. My learned predecessor Officer issued Bailable

Warrant, subsequently, it was converted into N.B.W. Ultimately it was

PJCJ-cum-JMFC, Narsapur C.C.No.153/2015 11 recalled on 08.12.2023. At the instance of accused only present case is dragged from the stage of arguments from 2021 to 2023.

39. Considering the attitude of the accused, I am declined to take lenient view and the accused is not entitled for any benevolent provisions under

Section 3 and 4 of the Probation of Offenders Act and under section 360 of

Cr.P.C.

40. Therefore accused is sentenced to undergo Rigorous Imprisonment for a period of six months and shall pay fine of Rs.2,00,000/- in default of payment fine, she shall suffer Simple Imprisonment for a period of three months. Out of fine amount an amount of Rs.10,000/- shall be given to the

State and the remaining Rs.1,90,000/- shall be given to Complainant towards compensation under Section 357 of Cr.P.C.

41.Accused is not in judicial custody during the course of trial. Therefore, passing of order under section 428 of Cr.P.C is not required.

42. The accused is informed about her right to prefer an appeal against this judgment before the appellate Court.

NOTE: The copy of Judgment is given to the accused forthwith on free of cost and obtained acknowledgment.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in the open court, this the 5 th day of January, 2024.

KANCHIDigitally signed by

KANCHI SRINIVAS

SRINIVASDate: 2024.01.05

13:00:58 +0000 I Addl. Junior Civil Judge-cum-I Addl. Judl. Magistrate of the First Class, Narsapur, (FAC) Principal Junior Civil Judge-cum-

Judicial Magistrate of the First Class,

Narsapur.

PJCJ-cum-JMFC, Narsapur C.C.No.153/2015 12

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Complainant For Accused

PW.1: B.SumitranandanNone PW.2: Vepuri Veranna Kumar PW.3: Gubbala Chennakesava Rao

Exhibits Marked

For Complainant For Accused

Ex.P.1: Original Promissory Note dated -- Nil -- 20.10.2012 Ex.P.2: Cheque bearing No.778329

dated 03.03.2015.

Ex.P.3: Cheque return memo dated 10.03.2015. Ex.P.4: Office copy of Legal notice

dated 17.03.2015.

Ex.P.5: Postal Acknowledgement dated 20.03.2015.

KANCHIDigitally signed by

KANCHI SRINIVAS

SRINIVASDate: 2024.01.05 13:01:10 +0000 I Addl. Junior Civil Judge-cum-I Addl. Judl. Magistrate of the First Class, Narsapur, (FAC) Principal Junior Civil Judge-cum-

Judicial Magistrate of the First Class,

Narsapur.

PJCJ-cum-JMFC, Narsapur C.C.No.153/2015 13

CALENDAR AND JUDGMENT

District of West Godavari Calendar of Cases tried by PRINCIPAL JUNIOR CIVIL JUDGE-CUM-JUDICIAL

MAGISTRATE OF THE FIRST CLASS, NARSAPUR.

---------------------------------------------------------------------------------------------------------------- Release on bail Date of offence Report of complaint Appearance of Accused (4) (1) (2) (3) ---------------------------------------------------------------------------------------------------------------- --- 03.03.2015 22.04.2015 30.06.2015 ---------------------------------------------------------------------------------------------------------------- Close of trial Sentence of order Explanation for delay Commencement of trial (5) (6) (7) (8) ---------------------------------------------------------------------------------------------------------------- 30.11.2016 26.12.2023 05.01.2024 Due to non-production of witnesses from time to time ---------------------------------------------------------------------------------------------------------------- Judgment of Calendar Case No. 153/2015 on the file of Principal Junior Civil Judge-cum-

Judicial Magistrate of the First Class, Narsapur.

---------------------------------------------------------------------------------------------------------------- Complainant: Battiprolu Sumitranandan, S/o. Satya Prakash, Hindu, Male, 40 years, Private employee, resident of Tower Street, Narsapur, W.G.District. ---------------------------------------------------------------------------------------------------------------- Name of the Accused Father Name Age Caste/Religion: Calling Village ---------------------------------------------------------------------------------------------------------------- Smt. Mahammad Khamurun, W/o. Hussain, Door No.11-6-52/3, Gandhi Nagar-2, Mission High School Ground back side, Narsapur, W.G.District. ---------------------------------------------------------------------------------------------------------------- Under Section 138 of the Negotiable Instruments Act, 1881. Offence : Accused is found guilty. Finding : Sentence : In the result, accused is found guilty for the offence punishable under section 138 of the Negotiable Instruments Act. Accordingly, she is convicted for the same under Section 255 (2) of Cr.P.C. Accused is sentenced to undergo Rigorous Imprisonment for a period of six months and shall pay fine of Rs.2,00,000/- in default of payment fine, she shall suffer Simple Imprisonment for a period of three months. Out of fine amount an amount of Rs.10,000/- shall be given to the State and the remaining Rs.1,90,000/- shall be given to Complainant towards compensation under Section 357 of Cr.P.C. Accused is not in judicial custody during the course of trial. Therefore, passing of order under section 428 of Cr.P.C is not required.

KANCHIDigitally signed by

KANCHI SRINIVAS

SRINIVASDate: 2024.01.05

13:01:22 +0000 I Addl. Junior Civil Judge-cum-I Addl. Judl. Magistrate of the First Class, Narsapur, (FAC) Principal Junior Civil Judge-cum-

Judicial Magistrate of the First Class,

Narsapur.

Copy submitted to: The Hon’ble I Additional District Judge, West Godavari, Eluru

Copy to:

1) The Hon’ble Secretary, District Legal Services Authority, West Godavari, Eluru.

2) The Superintendent of Police, West Godavari, Bhimavaram.