Smt. K.V.L.Hima Bindu

1CMM COURT, VSP

CC No.5050/2022

IN THE COURT OF CHIEF METROPOLITAN MAGISTRATE,

VISAKHAPATNAM

Present: Smt.K.V.L.Hima Bindu, Chief Metropolitan Magistrate, Visakhapatnam.

Wednesday, this the 03rd day of April, 2024

CALENDER CASE NO.5050/2022

BETWEEN :

State represented by the Sub Inspector of Police, Arilova Police Station, Visakhapatnam city. …Complainant

AND

1. Sornapudi Ajay Karthik, S/o Chandra Sekhar, 21 yrs, R/o D.No.1-1- 144, Flat No.61, Indira Nagar, Pedawaltair, Visakhapatnam city

2. Bairi Sai Surya Venkata Lalu Prasad, S/o Rajeswari, 21 yrs, R/o D.No.9-3-321, Pitapuram Colony, Maddilapalem, Visakhapatnam city

3. Yenugula Sai Pavan, S/o Satyababu, 21 yrs, R/o D.No.5-6-11/9, Adarshnagar, Pedawaltair, Visakhapatnam city

4. Medepalli Sampath Manikanta, S/o Sivaji, 23 yrs, R/o D.No.53-9-33, Maddilapalem, Petrol bunk back side, Visakhapatnam city …Accused

This matter having come up for final hearing before me on 03.04.2024 in the presence of the Learned APP for the State and of Sri P.Chandra Mouli, Advocate for Accused 1 to 4 and the matter having been heard and stood over for consideration till date, this Court delivered the following :

J U D G M E N T

1. The Sub Inspector of Police, Arilova Police Station, Visakhapatnam city filed charge sheet against Accused 1 to 4 in Cr.No.273/2021 for the offences U/Sec.269 IPC and Sec.27(a) of NDPS Act.

2.The prosecution case as mentioned in the charge sheet is as under:

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(a) On 09.06.2021 on receipt of reliable information with regard to consumption of ganja, LW6/B.Apparao, SI of Police along with his staff LW1/

DKV Swamy and LW2/J.Hussain proceeded to Hill area bushes,

Visalakshinagar, Visakhapatnam and found four persons sitting there who tried to run away from there on seeing police. Immediately they apprehended them and on enquiry the said persons disclosed their identities as A1 to A4 herein and confessed their guilt of purchasing ganja on 08.06.2021 at 10.00 hrs at Railway Station area and about consuming ganja cigarette. He verified the surroundings and found one paper packet which emitted ganja smell and on opening, found 7 packets of loose ganja weighing about 10 grams each packet, total weighing 70 grams of loose ganja. He informed A1 to A4 that they all resorted to disobedience of the orders duly promulgated and violated the quarantine rules and acted negligent towards the orders to prevent spread infection of disease which is dangerous to human life. Moreover consuming ganja in public place is in contravention of provisions of NDPS Act and hence arrested A1 to A4 under the cover of mediators report and seized the ganja and shifted A1 to A4 to the police station.

b) Based on the report, a case in Crime No.273/2021 was registered by LW5/T.Emmanuel Raju, Inspector of Police, Arilova against A1 to A4 for the offences U/Sec.269 IPC and Sec.27(a) of NDPS Act and entrusted investigation to LW6/B.Apparao, Sub-Inspector of Police. He sent

A1 to A4 to CMO, KGH to conduct general medical checkups and to preserve their blood samples for being sent to FSL Laboratory, Mangalagiri,

Vijayawada to know the narcotic toxic percentage in their blood and served notice u/s 41-A CrPC on them.

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(c) LW3/Chemical Examiner examined the seized loose ganja and opined that the samples at S.No.11284 to 11290 are ganja. LW4/Scientific

Officer analyzed the blood samples of A1 to A4 and opined that no cannabinoids are found in them. LW7/G.Apparao, Sub-Inspector of police took up further investigation and on completion of investigation, on satisfaction that it disclosed the guilt of accused, filed charge sheet against

A1 to A4 for the offences U/Sec.269 IPC and Sec.27(a) of NDPS Act, 1985.

3. The case was taken on file for the offences U/Sec.269 IPC and

Sec.27(a) of NDPS Act against A1 to A4 and summons were issued to them.

4. On appearance of the accused 1 to 4, copies of the documents were furnished to them as contemplated U/Sec.207 CrPC.

5.A1 to A4 were examined U/sec.251 CrPC, the substance of accusation levelled against them is read over and explained to them for which they denied the same, pleaded not guilty and claimed to be tried.

6. During prosecution evidence, to establish the case of the prosecution, they in all examined PW1 to PW3 and got marked Ex.P1 to Ex.P6 and MO1 to MO7 on their behalf.

7.After completion of prosecution evidence, A1 to A4 were examined U/

Sec.313 CrPC by explaining the incriminating evidence appearing against them in Telugu for which they once again denied the same and pleaded not guilty. However they reported no defence evidence on their behalf.

8.Heard both sides. Perused the material on record.

9.Now the point which stood up for determination is :

Whether the prosecution was able to establish the guilt of Accused 1 to 4 for the offences U/Sec.269 IPC and Sec.27(a) of NDPS Act beyond all reasonable doubt ?

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10.POINT :

The case of the prosecution goes to show that on receipt of reliable information with regard to the illegal possession and consumption of ganja that PW1 to PW3 and other staff together proceeded to the hill area bushes,

Visalakshinagar on 9.6.2021 and apprehended A1 to A4 while consuming ganja and recovered the said contraband from them pursuant to their confession under the cover of mediators report. Hence this case.

11.To bring home the guilt of the accused prosecution in all examined

PW1 to PW3 of whom PW3 is the investigation officer and PW1 and PW2 accompanied him during the alleged raid.

12.Critically appreciating the testimony of PW1, he categorically revealed that while he was working as head constable in Arilova PS that on 9.6.2021 at about 6.00 p.m., their SI/PW3 received information regarding consumption of ganja by the side of the hill near Visalakshinagar Heritage and hence he along with PW2 accompanied him and they all proceeded to the said area and reached there by 6.30 p.m. There they noticed four persons present in the bushes by the side of the hill near Visalakshinagar Heritage consuming ganja by placing it in cigarette. Immediately they caught hold of them who on enquiry disclosed their identity as the accused herein. On further enquiry and search they found seven packets of ganja and the accused revealed that each packet weighed around 10 grams. On further enquiry the accused confessed having purchased 10 packets of ganja on the previous day from one person at railway station by paying an amount of Rs.500/- to him. They further confessed having already consumed three packets of ganja and that while they were consuming the remaining packets that police apprehended 5CMM COURT, VSP

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them. Thus their SI prepared occurrence report on the spot and took A1 to

A4 into his custody and seized seven packets of ganja under the cover of occurrence report. Later their SI got shifted the accused along with the recovered contraband to the police station for further formalities and registered a case against them. As per PW1, due to lapse of time, he does not remember whether the accused present in the court were the same persons whom they apprehended on the date of incident.

13.The testimony of PW2 who is the constable in task force who also accompanied them on the said date is on parallel lines with that of PW1 in all material particulars. However he has disclosed their names as Karthik,

Prasad, Pavan and Sampath and that they recovered 7 packets of ganja each weighing 10 grams. That they noticed the accused consuming ganja by rolling the same into cigarettes and have also noticed burnt cigarette buds near the scene. Their SI explained them that transportation, possession and consumption of ganja is an offence and further that by gathering together at that place, that they have contravened the Covid guidelines and committed an offence. As per PW2 as the alleged incident took place at the time there were Covid regulations and he categorically identified A1 to A4 present in the court as the same persons who were found consuming ganja on the date of incident.

14.PW3 is the investigation officer who was instrumental in conducting mediators report and in fact his testimony is also on parallel lines with that of PW1 and PW2 in most of the material particulars and hence to avoid repetition the same is not reproduced here again. He further detailed that after recovery of 7 packets of ganja of 10 grams each from the possession of

A1 to A4 that they shifted them to the police station and he handed over the 6CMM COURT, VSP

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accused along with the case property to T.Emmanuel Raju, CI of police for further necessary action. That based on occurrence report he registered a case in Cr.No.274/2021 for the offences u/s 269 IPC and Sec.27 of NDPS Act and endorsed the CD file to PW3 for further investigation. That he addressed a letter and got the blood samples of the accused collected for forwarding the same to FSL for analysis and report. He forwarded the samples of the contraband for chemical examination and report and after obtaining the CE report and the relevant reports, on satisfaction that it disclosed the guilt of the accused filed charge sheet against A1 to A4 for the aforesaid offences.

15.The crucial aspects which raises for consideration is regarding the manner in which the accused are alleged to have been apprehended and the contraband seized. The accusation levelled by the prosecution against the

Accused is of three fold. 1) that they were in possession of ganja which itself is an offence, 2) they were found while consuming ganja by rolling the same as cigarettes, and 3) they gathered together at one place in contravention of

Covid rules and guidelines promulgated during the relevant point of time.

Coming to the 1st aspect, PW1 to PW3 categorically revealed that on receipt of reliable information with regard to the illegal possession and consumption of ganja that they altogether proceeded to the hill area of Visalakshinagar.

When they were proceeding to the scene of offence on receipt of reliable information, no material whatsoever is elicited before this court to show why they did not choose to secure any independent witnesses to act as mediators. Undoubtedly the lock down guidelines were not totally relaxed as on 9.6.2021 and even otherwise, that does not debar them from securing the presence of ward volunteers or VRA or any other public officials who 7CMM COURT, VSP

CC No.5050/2022

were running round the clock. No plausible explanation whatsoever is tendered to speak with regard to their failure to secure any independent mediators in spite of their best effort. Thus as appearing from the record except the testimony of the police officials themselves, the same stood not corroborated by any independent witnesses. Undoubtedly there is no bar in considering the testimony of a police official in the absence of corroboration by any independent witness since it cannot be ignored that they are the one bestowed with the duty and responsibility of maintaining law and order. But however as a rule of prudence and as a constitutional safe guard that it is appropriate to seek for corroboration with any independent evidence which is definitely lacking in this case. However as already mentioned above it is only the quality of evidence which is to be taken into consideration and not to the quantity or corroboration, nonetheless, the testimony of a police official if found to be wholly trustworthy and reliable throughout and pointing out towards the guilt of the Accused, can definitely be relied upon.

16.Thus proceeding further as already mentioned above, PW1 to PW3 categorically revealed that on receiving reliable information they proceeded to the scene of offence and apprehended three persons while consuming ganja. However it is pertinent to note here that except PW2, nobody expressed having noticed any burnt buds of cigarette at the scene. Further no endevour whatsoever was made to seize the burnt buds or produce

before this court. As admitted by PW1, their occurrence report is silent

about seizure of cigarette used for placing the ganja for the purpose of consuming the same and so also it is silent regarding the seizure of empty cigarette packets. This being so it is elicited from PW2 during his cross 8CMM COURT, VSP

CC No.5050/2022

examination that he did not state in his statement before police that he has noticed the cigarette buds at the scene of offence or seized the same.

17.Keeping this aspect on one side, as per the prosecution, they further found the accused in possession of seven packets of ganja each packet weighing around 10 grams. As disclosed by the accused they purchased it from some unknown person near railway station by paying Rs.500/-. In fact they purchased 10 packets out of which they already consumed three packets and four were remaining. The entire record is silent as to the place from where the seven packets were recovered. Whether they were found near the accused or were recovered from their pockets or any bag etc.,

Keeping this aspect on one side, they seized the seven packets under the cover of occurrence report and shifted them to the police-station. No endevour seems to have been made at that juncture to produce them before any gazetted officer for personal search or recording the seizure. As admitted by PW1, as on the date of incident, the revenue officials were functioning and discharging their official duties physically. Undoubtedly the quantum of ganja seized might have been small quantity but however when it is their contention that they could not secure independent witnesses, any endevour to produce them before any gazetted officer who is a public officer were available during Covid period we have aided them in supporting their case regarding the search and seizure proceedings.

18.Be that as it may, there is no whisper anywhere in the record that the packets of ganja seized were drawn samples or sealed. After shifting them to the police-station as appearing from the record, all the seven packets of ganja were forwarded to chemical laboratory for examination and report. As admitted by PW1, they did not weigh the said packets alleged to have been 9CMM COURT, VSP

CC No.5050/2022

seized from the possession of ganja and the weight is so mentioned as disclosed by the accused. Undoubtedly Ex.P3 is the letter of advice with he said details and Ex.P6 is the form-60 consisting of the description of the seven packets of ganja seized and Ex.P4 is the CE report issued by Excise

Department revealing that the samples correspond to ganja. But the entire record is silent with regard to the manner in which the samples, if at all were drawn and the manner in which they were forwarded to excise department for analysis and report. Further the total contraband seized amounted to 70 grams and in common parlance, a quantity of around 50 grams basic quantity is being drawn towards a single sample. In such circumstances the manner in which the said samples were pooled up stood not cogently explained. Further MO1 to MO7 are stated to be the unexpanded packets of ganja returned from the excise laboratory. It is not acceptable to say that 7 individual packets of 10 grams each were forwarded and without explaining whether the said quantity was sufficient enough for conducting examination, it throws a series of doubts over the manner in which any such tests were conducted.

19.Keeping this aspect on one side, as per PW1 to PW3, since the accused were noticed consuming ganja that their bloods samples were also collected and forwarded for analysis and report. Ex.P5 is the report issued by

FSL on analysis of the samples forwarded wherein it was held that “no cannabinoids are found in them”. In fact as per the prosecution version the accused are in the habit of consuming ganja and even assumed for a movement that they have consumed ganja for first time, some explanation is to be tendered by the prosecution to explain the absence of cannabinoids in the blood samples when it is their contention that by the time they 10CMM COURT, VSP

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apprehended A1 to A4, already they consumed three packets ganja of 10 grams each and also noticed cigarette buds present there. The duration in which such cannabinoids can be detected in their blood or if the traces could be found only on consumption of a suitable portion or otherwise the burden rests upon the prosecution and in light of Ex.P5 and in the absence of any such explanation, it paves way to reflect that it is highly suspicious to say if the accused were found consuming ganja as alleged.

20.Further it is elicited during the cross-examination of PW3 /investigation officer that admittedly as per Ex.P6 form-60, the date on which the samples were shown to have been deposited before the court is the date of offence itself. Admittedly MO1 to MO7 are produced before the court on that date, this witness was examined before the court and hence it was suggested that it was planted for the purpose of this case for which he however denied. In fact it cannot be ignored that soon after seizure of any contraband, it is mandatory for conducting inventory to brush aside the stigma of planting of the property or tampering. Apparently the said endevour was not put up by the investigation officer. Further the samples have to be duly sealed and as per procedure forwarded through the court of law and duly deposited before the court to properly account for the property.

Apparently all such measures were not taken by them and the samples were directly forwarded by the investigation officer to the Excise Department for analysis and report and the unexpanded portion of the samples was also received by them only leading to procedural irregularity. Admittedly the contraband seized from the possession of the accused was not weighed by them at any point of time and it is only an estimated weight as revealed by the accused.

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21.Above all as per PW1, though he detailed the series of events, he failed to identify the accused present in the court due to lapse of memory while PW2 and PW3 identified them. However identifying them after lapse of three years of time does not inspire confidence of this court. Further admittedly there was partial relaxation of Covid lock down during the relevant period and they did not initiate any prosecution against the accused for committing any offence under Disaster Management Act. It cannot be ignored that though the lock down was relaxed partially, no promulgation or ordinance is filed before this court to show the actual hours during which gathering of four persons or above is prohibited.

22.I deem it appropriate to reiterate the wordings of their Lordships in

Iqbal Moosa Patel Vs. State of Gujarat in 2011(2) ALD (Crl.) 148(SC)

wherein “The principle as to what degree of proof is required is stated by

Lord Denning in his inimitable style in Miller Vs. Minister of Pensions, (1947)2 ALT EB 272:

“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it permitted fanciful possibilities to defect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with sentence ‘of course, it is possible but not in the least probable,’ the case is proved beyond reasonable doubt…. It is true that under our existing jurisprudence in a criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable 12CMM COURT, VSP

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prudent man. Smelling doubts for the sake of giving benefit of doubt is not the law of land.” Reference may also be made to the decision of this court in such a Singh and Another Vs. State of Punjab, 2003(2) ALD (Crl.) 506(SC) = (2003)7 SCC 643 where this court has reiterated the principle in the following words: Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. (See Gurbachan Singh Vs. Satpal Singh, AIR 1990 SC 209) prosecution si not required to meet any and every hypothesis put forward by the accused. A reasonable doubt is not an imaginary trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish.” (excerpt).

23.Culminating the evidence on record, though the testimony of PW1 to

PW3 seemed to corroborate each other, the same is effected with material procedural irregularities and lapses. In such circumstances, when two views are possible the benefit of doubt has to be given to the accused and thus viewed from any angle it can be said that prosecution failed to bring home the guilt of accused beyond reasonable doubt.

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24.In the result, the accused 1 to 4 are found not guilty for the offences under section 269 IPC and Sec.27(a) of NDPS Act and are found not guilty under Section 255(1) CrPC.

Their bail bonds executed earlier, if any, shall remain in force for a period of 6 months U/S.437 A CrPC. MO1 and MO7 (unexpanded packets of ganja) shall stand destroyed after lapse of appeal time.

Typed to dictation by Stenographer Gr-1, corrected and pronounced by me in the Open Court, on this the 3rd day of April, 2024.

Sd/- K.V.L.Hima Bindu,

CHIEF METROPOLITAN MAGISTRATE,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution: For Defence:

PW-1 : D.K.V.Swamy, Head Constable- NIL - PW-2 : Jerrar Hussain Constable PW-3 : B. Apparao, SI of Police Exhibits Marked

For Prosecution:

Ex.P1 : Occurrence report, dt.9.6.2021 Ex.P2 : FIR, dt.9.6.2021 Ex.P3 : Attested copy of letter of advice Ex.P4 : CE report issued by Excise Department Ex.P5 : Report issued by FSL Ex.P6 : Form -60, dt.9.6.2021

Material Objects:

MO.1 to MO7 : Unexpanded packets of ganja returned from Excise Laboratory

Sd/- K.V.L.Hima Bindu,

CHIEF METROPOLITAN MAGISTRATE,

VISAKHAPATNAM.

14CMM COURT, VSP

CC No.5050/2022

CALENDER AND JUDGMENT

IN THE COURT OF CHIEF METROPOLITAN

MAGISTRATE, VISAKHAPATNAM

CALENDER CASE NO.5050/2022 (Cr.No. 273/2021 of Arilova Police Station)

Date of offence09.06.2021 at 18:30 hrs.,

Date of report or complaint09.06.2021

Date of apprehension of the 09.06.2021 accused Date of commencement of trial24.07.2023

Date of close of trial05.03.2024

Date of sentence on order

Accused is in Jail/ on BailOn Bail

Name of the ComplainantState Represented by Sub Inspector of Police, Arilova Police Station, Visakhapatnam city.

Name of the accused1. Sornapudi Ajay Karthik, S/o Chandra Sekhar, 21 yrs, R/o D.No.1-1-144, Flat No.61, Indira Nagar, Pedawaltair, Visakhapatnam city

2. Bairi Sai Surya Venkata Lalu Prasad, S/o Rajeswari, 21 yrs, R/o D.No.9-3- 321,PitapuramColony, Maddilapalem, Visakhapatnam city

3. Yenugula Sai Pavan, S/o Satyababu, 21yrs,R/oD.No.5-6-11/9, Adarshnagar,Pedawaltair, Visakhapatnam city

4. Medepalli Sampath Manikanta, S/o Sivaji, 23 yrs, R/o D.No.53-9-33, Maddilapalem, Petrol bunk back side, Visakhapatnam city

OffencesU/Sec.269 IPC and Sec.27(a) of NDPS Act 15CMM COURT, VSP

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Finding Found not guilty

Sentence: In the result, the accused 1 to 4 are found not guilty for the offences under section 269 IPC and Sec.27(a) of NDPS Act and are found not guilty under Section 255(1) CrPC. Their bail bonds executed earlier, if any, shall remain in force for a period of 6 months U/S.437 A CrPC. MO1 and MO7 (unexpanded packets of ganja) shall stand destroyed after lapse of appeal time.

Sd/- K.V.L.Hima Bindu,

CHIEF METROPOLITAN MAGISTRATE,

VISAKHAPATNAM.

1 CMM COURT, VSP

CC No.5436/2022

IN THE COURT OF CHIEF METROPOLITAN MAGISTRATE,

VISAKHAPATNAM

Present: Smt. K.V.L.Hima Bindu, Chief Metropolitan Magistrate, Visakhapatnam.

Wednesday, this the 3rd day of April, 2024

CALENDER CASE NO.5436/2022

(Cr.No.304/2021 of I Town Police Station, Visakhapatnam city)

BETWEEN :

State Represented by the Inspector of Police, I Town Police Station, Visakhapatnam city. …Complainant

AND

Kosireddy Dali Naidu, S/o Dalinaidu, D.No.1-42/4, Jerypothupalem, Pendurthy Mandal, Visakhapatnam city … Accused

This matter having come up for final hearing before me on 03.04.2024 in the presence of Learned Asst. Public Prosecutor for the State and of Sri Sreenu Babu Nakka, Advocate for Accused and the matter having been heard and stood over for consideration till date, this Court delivered the following :

J U D G M E N T

1.The Inspector of Police, I Town Police Station, Visakhapatnam city filed charge sheet against the above Accused in Crime

No.304/2021 for the offence U/Sec.304-A IPC.

2.The brief averments of the prosecution case goes to show that :

(a) On 17.06.2021 at 5.45 hrs while LW1-G.Vinay was walking towards beach road to drink tea along with his collegue and when he reached Fishing Harbour water tanker, he found one unknown male 2 CMM COURT, VSP

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person was unconscious on the footpath with his legs which were bleeding and he called 108 ambulance. 108 ambulance came and performed first aid and shifted to hospital. Hence this report.

(b) Based on the report given by LW1 – G.Vinay, a case in

Cr.No.304/2021 for the offence U/Sec.338 IPC was registered by

LW20/M.Venkata Narayana, Inspector of Police, I Town police station and endorsed investigation to LW19-V.Perrayya Naidu, Head constable. He visited the scene of offence and inspected the same and examined LW2-P.Seetharam, LW3-M.rambabu, LW4-S.Suryam and LW5-S.Srinu and recorded their statements. He addressed a letter of requisition to the Commissioner of Police, Visakhapatnam for

CCTV footage of Jalaripeta Gandhi Bomma juncture and Fishing

Harbour areas. Accordingly he identified the vehicle bearing regd. No.

AP 05 TG 1222 and secured the presence of Accused and arrested him.

(c) During the course of investigation, LW19-V.Perrayya Naidu,

Head constable addressed a letter to LW17-MVI to inspect the crime- vehicle and accordingly LW17-MVI inspected the crime-vehicle and opined that the accident not occurred due to any mechanical defect.

On 30.6.2021 LW1-G.Vinay presented another report stating that the unknown male injured was succumbed to injuries on 29.06.2021 around 18.30 hrs while undergoing treatment. Basing on the death intimation, he altered the section of law from Sec.338 IPC to Sec.304- 3 CMM COURT, VSP

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A IPC. He held inquest over the body of the deceased in the presence ofLW6-N.Kanakaraju,LW7-V.Venkateswarlu,LW8-G.Narsing,

LW9L.Ajith Kumar and Panchayatdars LW10-D.Ramana, LW11-

R.Praveen Kumar, LW12-K.Apparao, LW13-P.Ganesh and LW14-

D.Manikyalarao and recorded their statements and forwarded the dead body of deceased for conducting autopsy.

(d)LW18/ Assistant Professor conducted autopsy over the body of deceased and opined that the deceased died due to ‘Septicemia Secondary to avulsion injuries of both feet’.

LW20/M.Venkata Narayana, Inspector of Police secured the presence of all witnesses and re-examined them and recorded their statements and after completion of investigation, on satisfaction that it disclosed the guilt of the accused, he filed charge sheet against him for the offence U/Sec.304-A of IPC.

3.After filing of the Charge sheet, this Court has taken cognizance for the offence U/Sec.304-A IPC against the accused and summons were issued to him.

4.On his appearance, copies of documents were furnished to him as contemplated U/Sec.207 CrPC.

5.Accused was examined U/Sec.251 CrPC and the substance of the accusation leveled against him was read over and explained to him in

Telugu for which he denied the same, pleaded not guilty and claimed to be tried.

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6.During the course of trial, prosecution examined PW1 to PW6 and got marked Ex.P1 to Ex.P17 and MO1 on their behalf.

7.After completion of prosecution evidence, accused was examined u/s 313 CrPC by explaining the incriminating evidence appearing against him for which he denied the same and pleaded not guilty. The accused reported no defence evidence on his behalf .

8.Heard both sides. Perused material on record.

9.Now the point which stood up for determination is :

Whether the prosecution was able to establish the guilt of accused for the offence U/Sec.304-A IPC beyond all reasonable doubt ?

10.POINT :

The case of the prosecution goes to show that the accused being the driver of the crime-vehicle which is lorry bearing No. AP 05 TG 1222 drove the same in a rash and negligent manner drove over the body of the person lying on the footpath resulting in severe injuries and death.

Hence this case.

11.To bring home the guilt of the Accused, the prosecution in all examined PW1 to PW6 in this case of whom PW1 is the defacto complainant, PW2 is the circumstantial witness, PW3 and PW4 are the mediators in whose presence inquest over body of deceased was conducted and scene observation report conducted respectively, PW5 5 CMM COURT, VSP

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is the doctor who conducted autopsy over the body of the deceased and PW6 is the investigation officer in this case.

12.Critically appreciating the testimony of PW1, it goes to show that on 17.6.2021 while he was on duty, that at about 5.45 a.m. he came out of the office for having tea at which time he noticed blood oozing from the legs of one person who was found lying on the footpath with his legs stretched on the road. He suspected that some unknown vehicle might have ran over his legs causing injuries and hence immediately telephoned to 108 ambulance and got him shifted to KGH for treatment. Accordingly initially he lodged Ex.P1 report before police. As per PW1, later he came to know that the said injured succumbed to the injuries while undergoing treatment and hence submitted the same to the police vide Ex.P2 report dt.30.6.2021. He further revealed that he was present at KGH while police conducted inquest over body of deceased and also identified his signature marked as Ex.P3. In his opinion the death of deceased was caused due to the injuries sustained in the road traffic accident.

13.PW2 is running a pan shop near the scene of offence and he explained that one person of unsound mind used to stay regularly by the side of compound wall of electrical power office. Being so, on 17.6.2021 at about 7.00a.m., when he came to the scene in connection with water tanker, he did not notice the said person there and as he used to be present there regularly, he enquired his whereabouts and 6 CMM COURT, VSP

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came to know that he was shifted to the hospital in 108 ambulance. On enquiry he came to know that some unknown vehicle ran over his legs while he was found lying on the footpath stretching his legs over the road causing the injuries and that PW1 got him shifted to the hospital in 108 ambulance.

14.PW3 is the mediator in whose presence inquest over body of the deceased was conducted and he categorically revealed that they all opined that the death was caused due to the injuries sustained in a road traffic accident and identified his signature marked as Ex.P5 on

Ex.P4 mediators report. PW4 is the mediator in whose presence the scene observation report/ Ex.P7 was conducted and he detailed the proceedings which took place thereon. PW5 is the doctor who conducted autopsy over the body of the deceased and opined that death was caused due to septicemia secondary to avulsion injuries of both feet and the PME report was marked as Ex.P8. PW6 is the investigation officer who categorically revealed with regard to the chronological events which has taken place during the course of investigation leading to deduce the complicity of the accused in this case and hence filed charge-sheet.

15.Before adverting into other details, I deem it appropriate to appreciate the element of rashness and negligence, I deem it pertinent to discuss here as to what amounts to rash or negligent driving.

7 CMM COURT, VSP

CC No.5436/2022

Whether negligence involves a mental element, or whether it is conduct assessed by reference to an impersonal standard is arguable. What is or is not negligent involves a consideration of that which a reasonable man would or would not have done in the circumstances; this does not invariably rule out of consideration subjective factors such as a person’s knowledge, physical condition or age. A statutory provision may be so purchased as to require consideration of the defendant’s intelligence or maturity in order to determine whether it was negligent for him to have acted as he did.

Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so and that it may cause an injury but without intention, to cause injury or knowledge that it will probably be caused. The criminality lies in taking the risk of doing such an act with recklessness or being indifferent as to consequence. Reckless driving or driving in a manner dangerous to public is rashness. In order to see whether it is so the condition of the road, the amount of traffic at the time of accident, number of persons frequently moving about on the road or expected to be on the road, are some of the factors to be taken into consideration in assessing the rashness or negligence of the driver. It is the duty of every man who drives a vehicle on the public way, to drive it with such a care and caution as to prevent, as far as possible, any injury to anyone. Criminal negligence is gross and culpable neglect or failure to exercise with reasonable care and proper care to guard against injury either to the public generally or to an individual in particular as non- exercise of this imperative duty on the part of the accused amounts to culpable neglect.

8 CMM COURT, VSP

CC No.5436/2022

There is a marked distinction between a rash act and a negligent act. In the case of a rash act the criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. A culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow but with the hope that they will not and sometimes with the optimism that they will not, and often with the belief that the author has taken sufficient precaution to prevent their happening. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused to have adopted. Negligence implies an omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and a reasonable man would not do. Thus culpable negligence is acting without the consciousness that the illegal or mischievous act will follow, but in circumstances which show that the actor or the author has not exercised the caution incumbent upon him and if he had, he would have the consciousness. The imputability arises from the neglect of civil duty and circumspection.

When a driving leads to an accident, the main question is whether it was rash and negligent. But in deciding this speed is not the only criterion. The width of the road, density of traffic and attempt to overtake are also criteria. A finding as to criminal rashness or criminal negligence is to be arrived at 9 CMM COURT, VSP

CC No.5436/2022

by the Court – high speed of the vehicle is not enough to prove rashness or negligence on the part of the driver of a motor vehicle unless evidence is elicited from the witness as to what his notion about speed is.

Ordinarily it is for the prosecution to establish the guilt of the accused. The prosecution is to prove not only the rashness or negligence of the driver but also must prove that the rashness or negligence is responsible for the accident and consequent injury on or death of the victim. There can be no presumption of negligence from the mere fact that a man is knocked down and killed by a motorist. (excerpt from

Commentary on IPC by Ratanlal and Dheeraj Lal)

16.Thus appreciating the factum of rashness and negligence, as already mentioned above, the elements of the width of the road, the attending circumstances leading to the impact, condition of the vehicle all plays vital role.

17.It is apt to refer to the Judgment of their lordships in K.

Nageswararo vs. State of AP reported in 2003 2 ALD (Cri) 256 wherein it was held that there cannot be a presumption that just because the accident took place, that the accused drove the bus in a rash and negligent manner. Unless the prosecution is able to prove that the accused was the driver of the bus at the time of accident and that he drove the same in a rash and negligent manner, conviction cannot be based for the offence under Sec.304 A IPC.

10 CMM COURT, VSP

CC No.5436/2022

18.Culminating the evidence on record, the moot points to be established for attracting the offence u/s 304-A IPC are a. that there was death b. that the death was caused due to the injuries sustained in the alleged accident c. the accident was caused due to the rash and negligent driving of the driver of crime vehicle and d. that the accused was the driver of the crime-vehicle at the relevant point of time.

19.Culminating the evidence on record, in light of the testimony of

PW5/doctor who conducted autopsy and PW3, inquest panchayatdars in whose presence inquest over body of deceased was conducted, there cannot be any doubt that death of one unknown person resulted wherein they all opined that death might have been caused due to road traffic accident. Ex.P12 is the death information given by GVMC burial ground for cremation. PW1 was the first person to have noticed the deceased with the injuries and immediately taken steps to get him shifted to KGH in 108 ambulance but however his testimony is only relevant to the extent of noticing the deceased at the scene of offence with the injuries and his testimony is only an opinion that such type of injuries might have been caused as some unknown vehicle might have ran over his legs. So also PW2 is also a hearsay witness having deduced the manner in which the alleged incident might have taken 11 CMM COURT, VSP

CC No.5436/2022

place on enquiry at the scene of offence. As appearing from the record, there are no direct eyewitnesses to the incident nor is there any circumstantial evidence to actually speak with regard to the manner in which the deceased might have sustained injuries.

20.Above all, as per PW6 / investigation officer, they came to know the details of the accused while verifying the CCTV footages and thereby deduced his complicity. Ex.P13 is the letter addressed by PW6 to the SI of police, Finger Print Unit for identifying any finger prints on the body of the deceased and Ex.P14 is the report given by the Finger

Print Unit. In fact it is an ideal move taken by the investigation officer but however rather than trying to fix up the finger prints for which

Ex.P13 report was furnished as remained unidentified, the best recourse would have been trying to take the traces of any tyre marks over the body of the deceased to fix up the case to say that such injuries were caused only due to run over by any heavy vehicle. But the said link was clearly missing. This apart an endevour was made by addressing Ex.P17 letter to the Commissioner of Police for furnishing

CCTV footages and the said relevant portion was copied on a CD and marked as MO1 which is enclosed by Sec.65-B certification. However during cross-examination PW6 readily admitted that from the CCTV footages they could only identify the crime-vehicle but not the registration number of the crime-vehicle or the details regarding the person who might have actually driven the crime-vehicle at the 12 CMM COURT, VSP

CC No.5436/2022

relevant point of time. Admittedly the configuration or the particulars of CCTV footage actually collected from the CP office is not disclosed

before this court. Thus in all it was contended that even perusing MO1

CD, it does not cover the scene wherein the said vehicle actually ran over the body of the deceased. Further that only by contending that it is the crime-vehicle which passed through the said route at the relevant point of time that culpability cannot be attributed to the accused.

21.Thus except establishing the fact that there was a death caused most probably in a road traffic accident, there is no direct or circumstantial evidence on record to say that any such accident was caused by the accused being the driver of crime-vehicle or the manner in which the alleged accident might have taken place. Thus in all, it can be said that prosecution failed to bring home the guilt of the accused beyond reasonable doubt.

22. In the result, Accused is found not guilty for the offence

U/Sec.304-A IPC and he is acquitted under Section 255(1) of CrPC.

The bail bonds of Accused executed earlier shall remain in force for a period of 6 months U/Sec.437-A CrPC. No property.

Typed to dictation by the Stenographer Grade-1 on personal computer, corrected and pronounced by me in the Open Court, on this the 3rd day of April, 2024.

Sd/- K.V.L.Hima Bindu,

CHIEF METROPOLITAN MAGISTRATE,

VISAKHAPATNAM.

13 CMM COURT, VSP

CC No.5436/2022

APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution :

PW-1 : G.Vinay, defacto complainantNIL

PW-2 : P.Sitharam, circumstantial witness

PW-3 : D.Manikyalarao, mediator for inquest

PW-4 : P.Vishnu Murty, mediator for scene observation report

PW-5 : Dr.D.Harsha Sudarshan, doctor who conducted autopsy

PW-6 : V.Perayya Naidu, investigation officer

For Defence:

NONE

Exhibits marked

For Prosecution :

Ex.P1 : Report of PW1, dt.17.6.2021

Ex.P2 : Report of PW1, dt.30.6.2021

Ex.P3 : Signature of PW1 on inquest report

Ex.P4 : Inquest report

Ex.P5 : Signature of PW3 on inquest report

Ex.P6 : Signature of PW4 on scene observation report

Ex.P7 : Scene observation report

Ex.P8 : PME report

Ex.P9 : Requisition given to PW5

Ex.P10 : Rough sketch of scene of offence

Ex.P11 : MVI report

Ex.P12 : Death information given by GVMC burial ground for cremation]

Ex.P13 : Letter addressed by PW6 to SI of police, Finger Print Unit

Ex.P14 : Report given by Finger Print Unit

Ex.P15 : FIR 14 CMM COURT, VSP

CC No.5436/2022

Ex.P16 : Section alteration memo

For Defence: -Nil-

Material Objects:

MO1 : CD containing CCTV footage

Sd/- K.V.L.Hima Bindu,

CHIEF METROPOLITAN MAGISTRATE,

VISAKHAPATNAM.

15 CMM COURT, VSP

CC No.5436/2022

CALENDER AND JUDGMENT

IN THE COURT OF CHIEF METROPOLITAN MAGISTRATE,

VISAKHAPATNAM

CALENDER CASE NO.5436/2022

(Cr.No.304/2021 of I Town Police Station, Visakhapatnam city)

Date of offence17.06.2021

Date of report or complaint17.06.2021

Date of apprehension of the accused -- Date of commencement of trial30.01.2024 Date of close of trial06.03.2024 Date of sentence or order03.04.2024 Accused is in Jail/BailOn Bail Explanation of delay or remarksDue to non production of witnesses

Name of the ComplainantState Represented by the Inspector of Police, I Town Police Station, Visakhapatnam city.

Name of the accusedKosireddy Dali Naidu, S/o Dalinaidu, D.No.1-42/4, Jerypothupalem, Pendurthy Mandal, Visakhapatnam city

OffencesU/Sec.304-A IPC Finding Accused is found not guilty Sentence In the result, Accused is found not guilty for the offence U/Sec.304-A IPC and he is acquitted under Section 255(1) of CrPC.

The bail bonds of Accused executed earlier shall remain in force for a period of 6 months U/Sec.437-A CrPC. No property.

Sd/- K.V.L.Hima Bindu,

Chief Metropolitan Magistrate, Visakhapatnam.

1II ACMM COURT, VSP

CC No.491/2013

CALENDER AND JUDGMENT

IN THE COURT OF II ADDITIONAL CHIEF METROPOLITAN

MAGISTRATE, VISAKHAPATNAM

CALENDER CASE NO.491/2013

(Cr.No.302/2013 of II Town PS, Visakhapatnam)

Date of offencePrior to 03.07.2013

Date of report or complaint03.07.2013

Date of apprehension of the 10.07.2013 accused Date of commencement of trial06.09.2016

Date of close of trial06.11.2023

Date of sentence or order27.11.2023

Accused is in Jail/ BailIn Jail

Explanation of delay or remarksDue to suspension of Court work as per Circular in ROC No. 192/SO/2020 dt.16-03- 2020 of Hon’ble High Court of Andhra Pradesh the case was adjourned and due to delay in producing witnesses.

Name of the ComplainantState represented by the Sub Inspector of Police, Maharanipeta Zone, II Town Police Station, Visakhapatnam city.

Name of the accusedGedala Nageswara Rao, S/o Someswara Rao, aged 26 years, resident of Butchirajupalem, Reddy Street, NAD Kotha Road, Visakhapatnam.

OffencesUnder Section 420 of IPC

Finding Found Not Guilty

Sentence:

In the result, Accused is found not guilty for the offence under Section 420 IPC and is acquitted under Section 248(1) of Criminal Procedure Code.

No property. The Superintendent, Central Jail is directed to release the accused forthwith, if he is not required in any other case.

Sd/- xx xx xx xx

II Addl. Chief Metropolitan Magistrate, Visakhapatnam.

2II ACMM COURT, VSP

CC No.491/2013

IN THE COURT OF II ADDITIONAL CHIEF METROPOLITAN

MAGISTRATE, VISAKHAPATNAM

Present: Smt.K.V.L.Hima Bindu, II Addl. Chief Metropolitan Magistrate, Visakhapatnam.

Monday, this the 27th day of November, 2023

CALENDER CASE NO. 491/2013

(Cr.No.302/2013 of II Town PS, Visakhapatnam)

BETWEEN :

State represented by the Sub Inspector of Police, Maharanipeta Zone, II Town Police Station, Visakhapatnam city. …Complainant

AND

Gedala Nageswara Rao, S/o Someswara Rao, aged 26 years, resident of Butchirajupalem, Reddy Street, NAD Kotha Road, Visakhapatnam.

…Accused

This matter having come up for final hearing before me on 20.11.2023 in the presence of Learned Asst. Public Prosecutor for the

State and of Smt V. Nookaratnam, Advocate for Accused and the matter having been heard and stood over for consideration till date, this Court delivered the following :

J U D G M E N T

1. The Sub Inspector of Police, Maharanipeta Zone, II Town Police

Station, Visakhapatnam filed charge sheet against the accused in

Crime No.302/2013 for the offence U/Sec.420 IPC.

2.The prosecution case as mentioned in the charge sheet is as under :

(a)The accused is having criminal intention to cheat the victims/witnesses approached LW1/Isukapalli Seshu, LW2/Dendukuri

Rajesh, LW3/Saripalli Kishore Raju, LW4/Ravada Ramanamma and

LW5/Chitiri Srinivas with mollified intention. LW1/Isukapalli

Seshu/defacto complainant turned up to the Police Station along with 3II ACMM COURT, VSP

CC No.491/2013

LW2/Dendukuri Rajesh and LW3/Chitiri Srinivas stating that the accused has acquaintance with him LW1/Isukapalli Seshu at AR grounds. In view of his unemployment, the accused induced him to give some amount to provide Home Guard Post as he knows the Police

Department Authorities. On believing the words of the accused, he gave an amount of Rs.40,000/- as advance to the accused for which the accused executed a promissory note. LW2/Dendukuri Rajesh and

LW3/Chitiri Srinivas also gave an amount of Rs.40,000/- each as advance to the accused. But the accused failed to provide Home Guard posts to them. Hence he requested to take necessary action.

(b)Based on the report of LW1/Isukapalli Seshu, a case in

Cr.No.302/2013 for the offence U/Sec.420 IPC was registered by

LW8/R.Mallikarjuna Rao, Inspector of Police Maharanipeta Zone, II

Town Police Station, Visakhapatnam and he endorsed the same to

LW9/V.V.C.M.Yerram Naidu, SI of Police, Maharanipeta Zone, II Town

Police Station, Visakhapatnam city for further investigation.

3.During the course of investigation, LW9/V.V.C.M.Yerram Naidu, SI of Police examined the witnesses viz., LW1/Isukapalli Seshu,

LW2/Dendukuri Rajesh, LW3/Saripalli Kishore Raju and recorded their statements. During the course of investigation, LW4/Ravada

Ramanamma and LW5/Chitiri Srinivas came to LW9/V.V.C.M.Yerram

Naidu, SI of Police and informed that they were also cheated by the accused on the guise of their unemployment problem and that the accused induced them to give the amounts to provide Home Guard

Post as he knows the Police Department authorities. On believing the words of the accused, LW4/Ravada Ramanamma gave an amount of

Rs.20,000/- and LW5/Chitiri Srinivas gave an amount of Rs.10,000/- as 4II ACMM COURT, VSP

CC No.491/2013

advance to the accused to provide Home Guard Posts, but the accused failed to provide them jobs and cheated them. On 10.07.2013,

LW9/V.V.C.M.Yerram Naidu, SI of Police arrested the accused at RTC

Complex, opposite to LIC building, Visakhapatnam after having identified him as the accused with the help of LW1/Isukapalli Seshu and sent him for Judicial Custody. After completion of entire investigation, he filed charge sheet against the accused for the offences under Section 420 IPC.

4.The charge sheet was taken on file for the offence U/Sec.420 IPC against the accused and summons issued to him.

5.On appearance of accused, copies of documents were furnished to him as contemplated U/Sec.207 CrPC.

6.Accused was examined U/Sec.239 CrPC. Charge for the offence under Section 420 IPC was framed, read over and explained to him in

Telugu for which he denied the same, pleaded not guilty and claimed to be tried.

7.During the course of trial, prosecution examined PW1 to PW5 and got marked Ex.P1 to Ex.P8 on their behalf.

8. After completion of the evidence of prosecution, accused was examined U/Sec.313 CrPC by explaining the incriminating evidence appearing against him for which he denied the same once again and pleaded not guilty. However he reported no defence evidence on his behalf.

9. Heard both sides. Perused the material on record.

10.Now the point which stood up for determination is :

Whether the prosecution was able to establish the guilt of the 5II ACMM COURT, VSP

CC No.491/2013

accused for the offence U/Sec.420 IPC beyond all reasonable doubt ?

11.POINT :

The prosecution case in a nutshell goes to show that the accused lured PW1 to PW3 and others to provide jobs as Home Guards in Police

Department out of his acquaintance with them and collected amounts from them but however failed to. Hence this case.

12.To bring home the guilt of the accused, prosecution in all examined PW1 to PW5 in this case of whom PW1 to PW3 are all the victims. PW4 and PW5 are the Investigation Officers in this case.

13.PW1 to PW3 being the victims, their testimony assumes much importance and critically appreciating the same, it goes to show that in the month of April 2012 when PW1 went to Police Barracks,

Visakhapatnam for Home Guard selections, the accused got introduced himself stating that his father was working as a cook in the Police

Commissioner’s House and that he will see that PW1 is recommended for his posting. PW2 and PW3 also attended for the said selection and the accused got introduced himself to them also and by assuring to provide jobs, demanded them to give an amount of Rs.1,20,000/- each.

As per his demand, PW1 handed over an amount of Rs.40,000/- to the accused personally on 22.04.2012 in the presence of his father Raju.

Later PW2 also gave an amount of Rs.40,000/- to the accused on 04.07.2012 in his presence and PW3 gave an amount of Rs.40,000/- on 26.08.2012. However when they contacted him later on, he instructed them not to telephone him repeatedly and so they called after one week at which time his phone was switched off. Hence three of them went to the house of the accused situated at Gopalapatnam but the 6II ACMM COURT, VSP

CC No.491/2013

accused was not available. From there they proceeded to the parents house of the accused in Police quarters, Visakhapatnam where his mother informed him that the accused left the house. However they again went to the house of the accused and found him there but however he was reluctant to answer them stating that he is no way concerned with the said issue and asked them to do what all they can.

Hence they proceeded to the police station and PW1 lodged report and he further identified the accused present in the Court as the same person. Further it is the case of PW1 that the accused executed three promissory notes by filing up the contents of amount and date and endorsed his signatures on it and handed over the blank promissory notes to him and the promissory note dated 22.04.2012 was got marked as Ex.P2 which is alleged to have been executed in favour of

PW1.

14.The evidence of PW2 is on parallel lines with that of PW1 in all material aspects except to the fact that the accused introduced himself stating that his father was working as Head Constable in Office of CP and lured him to provide job on making payment. Further through this witness the promissory note dated 04.07.2012 alleged to be executed by the accused in his favour is got marked as Ex.P3.

15.Similarly, the testimony of PW3 is similar to that of PW2 in all material aspects and through this witness the blank signed promissory note was got marked as Ex.P4.

16.PW4 and PW5 are the Investigation Officers in this case who reiterated the entire chronological events in which the investigation took place leading to deducing the complicity of the accused in this case.

7II ACMM COURT, VSP

CC No.491/2013

17.Before adverting into further details of the case, I deem it pertinent to reproduce Sec.415 of IPC which defines the term cheating.

Sec.415 IPC : Cheating :-

Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property, to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, repurtation or property, is said to “cheat”.

18.Thus the essential ingredients required to constitute cheating are

i) deception of any person ii) a) Fradulently or dishonestly inducing that person

1) to deliver any property to any person or

2) to consent that any person shall retain any property :

b) Intentionally inducing that person to do or omit to do anything which he would not do or and omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.

19.Thus to bring home the guilt of the accused, in the dack drop of the allegations made, it must be established that

1) The accused approached or induced PW1 for acting upon their advice or sugggestion;

2) That all these acts were resorted to with fraudulent intention to cause wrongful loss to PW1 and thereby have wrongful gain and

3)These acts were resorted to by PW1 only because of the inducement caused by the accused and if not that he would not have resorted to such acts.

8II ACMM COURT, VSP

CC No.491/2013

20.The offence of cheating cannot be said to have been committed when there is no exercise of dishonesty. Mere breach of contract is not offence unless it is specifically established that such breach was resorted to with a dishonest intention which was prevalent from the point of inception of the said contract. The distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct, but for which the subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution U/Sec.420 IPC unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed (Ram Niwas Vs.

Jafar Abba reported in 1978 Crl. Law Journal 706 Alahabad).

21.This distinction depends upon the intention of accused at the time of alleged inducement. Mere breach of contract cannot give rise to criminal prosecution under Sec.420 unless fraudulent or dishonest intention is shown right at the beginning of transaction time when the offence was said to have been committed. If it is established that the intention of the accused was dishonest at the time of entering into the agreement then liability will be criminal and the accused will be guilty of the offence of cheating. On the other hand, if all that is established that a representation made by the accused has subsequently not been kept, criminal liability cannot be fastened on the accused and only right which complainant acquires is to a decree of damages for breach of.

22.Considering the allegations levelled by PW1 to PW3, in fact the agreement between both the parties itself is an illegal agreement that 9II ACMM COURT, VSP

CC No.491/2013

is a promise to provide job on payment of gratitude. Thus there cannot be said to be any legally enforceable contract existing between both the parties. Undoubtedly PW1 to PW3 categorically revealed that on receiving the said amounts that the accused executed three blank promissory note for the respective amounts which were duly marked as

Ex.P2 to Ex.P4. If at all, the intention of the accused was to defraud

PW1 to PW3, why at all he would execute any such documents. On the other hand, except the self serving testimony of PW1 to PW3, there is no other evidence on record to show that the signatures on Ex.P2 to

Ex.P4 belongs to the accused and that they were executed in the manner as alleged. Any confessional statement alleged to be made by the accused before the investigation officer itself is not admissible in evidence been hit by the provisions of Section 25 to Section 27 of

Indian Evidence Act. No endeavor was made by the prosecution to elicit any material facts through any mediators. Further when Exs.P2 to

Ex.P4 are alleged to be produced before this Court from the custody of

PW1 to PW3, the burden of proof heavily lies upon them to establish the manner in which those documents came into existence and that they were executed by the accused as alleged. With this regard there is no cogent and reliable evidence placed on record. Further it is elicited during the cross examination of these witnesses including the investigation officer that the alleged signature of the accused on the promissory notes reads as G Nageswarrao Reddy while the name of the accused is only Gedela Nageswarrao. That though he is Reddy by caste, his name is always referred as G Nageswarrao. Thus the controversy in mentioning the name also stood not cogently established nor that the hand writings on the alleged documents 10II ACMM COURT, VSP

CC No.491/2013

pertains to the accused to show that they were executed in the manner as alleged. Further during the course of cross examination, the manner in which the alleged promissory notes were said to have been handed over to PW1 to PW3 were confronted at a stretch during which course also, they could not give cogent reply.

23.If at all, there is any inducement on the part of the accused with a malafide intention to cheat them, why at all any person would execute any such promissory notes and as discussed above, there is no direct or circumstantial evidence placed on record to say that the accused is the executant of the said documents. Thus in all, the ingredients of Section 420 IPC fails and it can be said that prosecution failed to bring home the guilt of the accused beyond reasonable doubt.

24. In the result, Accused is found not guilty for the offence under

Section 420 IPC and is acquitted under Section 248(1) of Criminal

Procedure Code. No property. The Superintendent, Central Jail is directed to release the accused forthwith, if he is not required in any other case.

T yped to dictation by the Stenographer (Contract basis) on my laptop, corrected and pronounced by me in the Open Court, on the 27th day of November, 2023.

Sd/- xx xx xx xx

II ADDL. CHIEF METROPOLITAN MAGISTRATE,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution : For Defense:

PW1: I.Seshu - Nil -

PW2: Rajesh

PW3: S.Kishore Raju 11II ACMM COURT, VSP

CC No.491/2013

PW4 : R.Mallikaurjuna Rao

PW5: V.V.C.M.Yerram Naidu

Exhibits marked

For Prosecution :

Ex.P1 is the report of PW1.

Ex.P2 is the original Promissory Note dt.22.04.2012.

Ex.P3 is the blank promissory note signed by the accused, dt.04.07.2012.

Ex.P4 is the blank promissory note signed by the accused, dt.28.07.2012.

Ex.P5 is the FIR along with report registered by PW4.

Ex.P6 is the mediator report.

Ex.P7 is the Identity Card of the accused as Home Guard issued by

Deputy Commissioner of Police, Visakhapatnam.

Ex.P8 is the promissory note executed by the accused.

For Defense: -Nil-

Material Objects:-Nil-

Sd/- xx xx xx xx

II ADDL. CHIEF METROPOLITAN MAGISTRATE,

VISAKHAPATNAM.

1II ACMM COURT, VSP

CC No.491/2013

CALENDER AND JUDGMENT

IN THE COURT OF II ADDITIONAL CHIEF METROPOLITAN

MAGISTRATE, VISAKHAPATNAM

CALENDER CASE NO.491/2013

(Cr.No.302/2013 of II Town PS, Visakhapatnam)

Date of offencePrior to 03.07.2013

Date of report or complaint03.07.2013

Date of apprehension of the 10.07.2013 accused Date of commencement of trial06.09.2016

Date of close of trial06.11.2023

Date of sentence or order27.11.2023

Accused is in Jail/ BailIn Jail

Explanation of delay or remarksDue to suspension of Court work as per Circular in ROC No. 192/SO/2020 dt.16-03- 2020 of Hon’ble High Court of Andhra Pradesh the case was adjourned and due to delay in producing witnesses.

Name of the ComplainantState represented by the Sub Inspector of Police, Maharanipeta Zone, II Town Police Station, Visakhapatnam city.

Name of the accusedGedala Nageswara Rao, S/o Someswara Rao, aged 26 years, resident of Butchirajupalem, Reddy Street, NAD Kotha Road, Visakhapatnam.

OffencesUnder Section 420 of IPC

Finding Found Not Guilty

Sentence:

In the result, Accused is found not guilty for the offence under Section 420 IPC and is acquitted under Section 248(1) of Criminal Procedure Code.

No property. The Superintendent, Central Jail is directed to release the accused forthwith, if he is not required in any other case.

Sd/- xx xx xx xx

II Addl. Chief Metropolitan Magistrate, Visakhapatnam.

2II ACMM COURT, VSP

CC No.491/2013

IN THE COURT OF II ADDITIONAL CHIEF METROPOLITAN

MAGISTRATE, VISAKHAPATNAM

Present: Smt.K.V.L.Hima Bindu, II Addl. Chief Metropolitan Magistrate, Visakhapatnam.

Monday, this the 27th day of November, 2023

CALENDER CASE NO. 491/2013

(Cr.No.302/2013 of II Town PS, Visakhapatnam)

BETWEEN :

State represented by the Sub Inspector of Police, Maharanipeta Zone, II Town Police Station, Visakhapatnam city. …Complainant

AND

Gedala Nageswara Rao, S/o Someswara Rao, aged 26 years, resident of Butchirajupalem, Reddy Street, NAD Kotha Road, Visakhapatnam.

…Accused

This matter having come up for final hearing before me on 20.11.2023 in the presence of Learned Asst. Public Prosecutor for the

State and of Smt V. Nookaratnam, Advocate for Accused and the matter having been heard and stood over for consideration till date, this Court delivered the following :

J U D G M E N T

1. The Sub Inspector of Police, Maharanipeta Zone, II Town Police

Station, Visakhapatnam filed charge sheet against the accused in

Crime No.302/2013 for the offence U/Sec.420 IPC.

2.The prosecution case as mentioned in the charge sheet is as under :

(a)The accused is having criminal intention to cheat the victims/witnesses approached LW1/Isukapalli Seshu, LW2/Dendukuri

Rajesh, LW3/Saripalli Kishore Raju, LW4/Ravada Ramanamma and

LW5/Chitiri Srinivas with mollified intention. LW1/Isukapalli

Seshu/defacto complainant turned up to the Police Station along with 3II ACMM COURT, VSP

CC No.491/2013

LW2/Dendukuri Rajesh and LW3/Chitiri Srinivas stating that the accused has acquaintance with him LW1/Isukapalli Seshu at AR grounds. In view of his unemployment, the accused induced him to give some amount to provide Home Guard Post as he knows the Police

Department Authorities. On believing the words of the accused, he gave an amount of Rs.40,000/- as advance to the accused for which the accused executed a promissory note. LW2/Dendukuri Rajesh and

LW3/Chitiri Srinivas also gave an amount of Rs.40,000/- each as advance to the accused. But the accused failed to provide Home Guard posts to them. Hence he requested to take necessary action.

(b)Based on the report of LW1/Isukapalli Seshu, a case in

Cr.No.302/2013 for the offence U/Sec.420 IPC was registered by

LW8/R.Mallikarjuna Rao, Inspector of Police Maharanipeta Zone, II

Town Police Station, Visakhapatnam and he endorsed the same to

LW9/V.V.C.M.Yerram Naidu, SI of Police, Maharanipeta Zone, II Town

Police Station, Visakhapatnam city for further investigation.

3.During the course of investigation, LW9/V.V.C.M.Yerram Naidu, SI of Police examined the witnesses viz., LW1/Isukapalli Seshu,

LW2/Dendukuri Rajesh, LW3/Saripalli Kishore Raju and recorded their statements. During the course of investigation, LW4/Ravada

Ramanamma and LW5/Chitiri Srinivas came to LW9/V.V.C.M.Yerram

Naidu, SI of Police and informed that they were also cheated by the accused on the guise of their unemployment problem and that the accused induced them to give the amounts to provide Home Guard

Post as he knows the Police Department authorities. On believing the words of the accused, LW4/Ravada Ramanamma gave an amount of

Rs.20,000/- and LW5/Chitiri Srinivas gave an amount of Rs.10,000/- as 4II ACMM COURT, VSP

CC No.491/2013

advance to the accused to provide Home Guard Posts, but the accused failed to provide them jobs and cheated them. On 10.07.2013,

LW9/V.V.C.M.Yerram Naidu, SI of Police arrested the accused at RTC

Complex, opposite to LIC building, Visakhapatnam after having identified him as the accused with the help of LW1/Isukapalli Seshu and sent him for Judicial Custody. After completion of entire investigation, he filed charge sheet against the accused for the offences under Section 420 IPC.

4.The charge sheet was taken on file for the offence U/Sec.420 IPC against the accused and summons issued to him.

5.On appearance of accused, copies of documents were furnished to him as contemplated U/Sec.207 CrPC.

6.Accused was examined U/Sec.239 CrPC. Charge for the offence under Section 420 IPC was framed, read over and explained to him in

Telugu for which he denied the same, pleaded not guilty and claimed to be tried.

7.During the course of trial, prosecution examined PW1 to PW5 and got marked Ex.P1 to Ex.P8 on their behalf.

8. After completion of the evidence of prosecution, accused was examined U/Sec.313 CrPC by explaining the incriminating evidence appearing against him for which he denied the same once again and pleaded not guilty. However he reported no defence evidence on his behalf.

9. Heard both sides. Perused the material on record.

10.Now the point which stood up for determination is :

Whether the prosecution was able to establish the guilt of the 5II ACMM COURT, VSP

CC No.491/2013

accused for the offence U/Sec.420 IPC beyond all reasonable doubt ?

11.POINT :

The prosecution case in a nutshell goes to show that the accused lured PW1 to PW3 and others to provide jobs as Home Guards in Police

Department out of his acquaintance with them and collected amounts from them but however failed to. Hence this case.

12.To bring home the guilt of the accused, prosecution in all examined PW1 to PW5 in this case of whom PW1 to PW3 are all the victims. PW4 and PW5 are the Investigation Officers in this case.

13.PW1 to PW3 being the victims, their testimony assumes much importance and critically appreciating the same, it goes to show that in the month of April 2012 when PW1 went to Police Barracks,

Visakhapatnam for Home Guard selections, the accused got introduced himself stating that his father was working as a cook in the Police

Commissioner’s House and that he will see that PW1 is recommended for his posting. PW2 and PW3 also attended for the said selection and the accused got introduced himself to them also and by assuring to provide jobs, demanded them to give an amount of Rs.1,20,000/- each.

As per his demand, PW1 handed over an amount of Rs.40,000/- to the accused personally on 22.04.2012 in the presence of his father Raju.

Later PW2 also gave an amount of Rs.40,000/- to the accused on 04.07.2012 in his presence and PW3 gave an amount of Rs.40,000/- on 26.08.2012. However when they contacted him later on, he instructed them not to telephone him repeatedly and so they called after one week at which time his phone was switched off. Hence three of them went to the house of the accused situated at Gopalapatnam but the 6II ACMM COURT, VSP

CC No.491/2013

accused was not available. From there they proceeded to the parents house of the accused in Police quarters, Visakhapatnam where his mother informed him that the accused left the house. However they again went to the house of the accused and found him there but however he was reluctant to answer them stating that he is no way concerned with the said issue and asked them to do what all they can.

Hence they proceeded to the police station and PW1 lodged report and he further identified the accused present in the Court as the same person. Further it is the case of PW1 that the accused executed three promissory notes by filing up the contents of amount and date and endorsed his signatures on it and handed over the blank promissory notes to him and the promissory note dated 22.04.2012 was got marked as Ex.P2 which is alleged to have been executed in favour of

PW1.

14.The evidence of PW2 is on parallel lines with that of PW1 in all material aspects except to the fact that the accused introduced himself stating that his father was working as Head Constable in Office of CP and lured him to provide job on making payment. Further through this witness the promissory note dated 04.07.2012 alleged to be executed by the accused in his favour is got marked as Ex.P3.

15.Similarly, the testimony of PW3 is similar to that of PW2 in all material aspects and through this witness the blank signed promissory note was got marked as Ex.P4.

16.PW4 and PW5 are the Investigation Officers in this case who reiterated the entire chronological events in which the investigation took place leading to deducing the complicity of the accused in this case.

7II ACMM COURT, VSP

CC No.491/2013

17.Before adverting into further details of the case, I deem it pertinent to reproduce Sec.415 of IPC which defines the term cheating.

Sec.415 IPC : Cheating :-

Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property, to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, repurtation or property, is said to “cheat”.

18.Thus the essential ingredients required to constitute cheating are

i) deception of any person ii) a) Fradulently or dishonestly inducing that person

1) to deliver any property to any person or

2) to consent that any person shall retain any property :

b) Intentionally inducing that person to do or omit to do anything which he would not do or and omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.

19.Thus to bring home the guilt of the accused, in the dack drop of the allegations made, it must be established that

1) The accused approached or induced PW1 for acting upon their advice or sugggestion;

2) That all these acts were resorted to with fraudulent intention to cause wrongful loss to PW1 and thereby have wrongful gain and

3)These acts were resorted to by PW1 only because of the inducement caused by the accused and if not that he would not have resorted to such acts.

8II ACMM COURT, VSP

CC No.491/2013

20.The offence of cheating cannot be said to have been committed when there is no exercise of dishonesty. Mere breach of contract is not offence unless it is specifically established that such breach was resorted to with a dishonest intention which was prevalent from the point of inception of the said contract. The distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct, but for which the subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution U/Sec.420 IPC unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed (Ram Niwas Vs.

Jafar Abba reported in 1978 Crl. Law Journal 706 Alahabad).

21.This distinction depends upon the intention of accused at the time of alleged inducement. Mere breach of contract cannot give rise to criminal prosecution under Sec.420 unless fraudulent or dishonest intention is shown right at the beginning of transaction time when the offence was said to have been committed. If it is established that the intention of the accused was dishonest at the time of entering into the agreement then liability will be criminal and the accused will be guilty of the offence of cheating. On the other hand, if all that is established that a representation made by the accused has subsequently not been kept, criminal liability cannot be fastened on the accused and only right which complainant acquires is to a decree of damages for breach of.

22.Considering the allegations levelled by PW1 to PW3, in fact the agreement between both the parties itself is an illegal agreement that 9II ACMM COURT, VSP

CC No.491/2013

is a promise to provide job on payment of gratitude. Thus there cannot be said to be any legally enforceable contract existing between both the parties. Undoubtedly PW1 to PW3 categorically revealed that on receiving the said amounts that the accused executed three blank promissory note for the respective amounts which were duly marked as

Ex.P2 to Ex.P4. If at all, the intention of the accused was to defraud

PW1 to PW3, why at all he would execute any such documents. On the other hand, except the self serving testimony of PW1 to PW3, there is no other evidence on record to show that the signatures on Ex.P2 to

Ex.P4 belongs to the accused and that they were executed in the manner as alleged. Any confessional statement alleged to be made by the accused before the investigation officer itself is not admissible in evidence been hit by the provisions of Section 25 to Section 27 of

Indian Evidence Act. No endeavor was made by the prosecution to elicit any material facts through any mediators. Further when Exs.P2 to

Ex.P4 are alleged to be produced before this Court from the custody of

PW1 to PW3, the burden of proof heavily lies upon them to establish the manner in which those documents came into existence and that they were executed by the accused as alleged. With this regard there is no cogent and reliable evidence placed on record. Further it is elicited during the cross examination of these witnesses including the investigation officer that the alleged signature of the accused on the promissory notes reads as G Nageswarrao Reddy while the name of the accused is only Gedela Nageswarrao. That though he is Reddy by caste, his name is always referred as G Nageswarrao. Thus the controversy in mentioning the name also stood not cogently established nor that the hand writings on the alleged documents 10II ACMM COURT, VSP

CC No.491/2013

pertains to the accused to show that they were executed in the manner as alleged. Further during the course of cross examination, the manner in which the alleged promissory notes were said to have been handed over to PW1 to PW3 were confronted at a stretch during which course also, they could not give cogent reply.

23.If at all, there is any inducement on the part of the accused with a malafide intention to cheat them, why at all any person would execute any such promissory notes and as discussed above, there is no direct or circumstantial evidence placed on record to say that the accused is the executant of the said documents. Thus in all, the ingredients of Section 420 IPC fails and it can be said that prosecution failed to bring home the guilt of the accused beyond reasonable doubt.

24. In the result, Accused is found not guilty for the offence under

Section 420 IPC and is acquitted under Section 248(1) of Criminal

Procedure Code. No property. The Superintendent, Central Jail is directed to release the accused forthwith, if he is not required in any other case.

T yped to dictation by the Stenographer (Contract basis) on my laptop, corrected and pronounced by me in the Open Court, on the 27th day of November, 2023.

Sd/- xx xx xx xx

II ADDL. CHIEF METROPOLITAN MAGISTRATE,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution : For Defense:

PW1: I.Seshu - Nil -

PW2: Rajesh

PW3: S.Kishore Raju 11II ACMM COURT, VSP

CC No.491/2013

PW4 : R.Mallikaurjuna Rao

PW5: V.V.C.M.Yerram Naidu

Exhibits marked

For Prosecution :

Ex.P1 is the report of PW1.

Ex.P2 is the original Promissory Note dt.22.04.2012.

Ex.P3 is the blank promissory note signed by the accused, dt.04.07.2012.

Ex.P4 is the blank promissory note signed by the accused, dt.28.07.2012.

Ex.P5 is the FIR along with report registered by PW4.

Ex.P6 is the mediator report.

Ex.P7 is the Identity Card of the accused as Home Guard issued by

Deputy Commissioner of Police, Visakhapatnam.

Ex.P8 is the promissory note executed by the accused.

For Defense: -Nil-

Material Objects:-Nil-

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II ADDL. CHIEF METROPOLITAN MAGISTRATE,

VISAKHAPATNAM.

1 CMM COURT, VSP

CC No.1376/2019

IN THE COURT OF CHIEF METROPOLITAN MAGISTRATE,

VISAKHAPATNAM

Present: Smt. K.V.L.Hima Bindu, Chief Metropolitan Magistrate, Visakhapatnam.

Tuesday, this the 2nd day of April, 2024

CALENDER CASE NO.1376/2019

(Cr.No.62/2018 of Cyber Crime Police Station, Visakhapatnam city)

BETWEEN : State Represented by the Inspector of Police, Cyber Crime Police Station, Visakhapatnam city. …Complainant

AND

1. Tullibilli Rajesh, S/o Ramesh, 26 years, R/o D.No.10-3-3/72, Humayunnagar, Mehdipatnam, Hyderabad

2. Gompa Krishna Rao, S/o Ramana, 23 years, Ippilivanipalem. village, Chinthagatla post, Pendurthy Mandal, Visakhapatnam

3. Ragatha Raju, S/o Jagannadham, 23 years, D.No.6-10, Chepala Uppada, Bhimili, Visakhapatnam

4. Arattupuzha Manoj, S/o Mohanan, 27 yrs, R/o House No.8-79, Jayaram Nagar, Quthbullapur, Hyderabad, Occupation- AIRTEL CSO

(CUSTOMER RELATIONSHIP OFFICER)

… Accused

This matter having come up for final hearing before me on 02.04.2024 in the presence of Learned Asst. Public Prosecutor for the State and of Sri P.Pradeep, Advocate for A1, Sri P.Prasanth and Hyma, Advocates for A2, Sri P.V.S.Sai Kumar, Advocate for A3 and Sri U.S.V.Prasad and Sri P.Sukumarrao, Advocates for A4 and the matter having been heard and stood over for consideration till date, this Court delivered the following :

J U D G M E N T

1.The Inspector of Police, Cyber Crime Police Station, Visakhapatnam city filed charge sheet against the Accused 1 to 4 in Crime No.62/2018 2 CMM COURT, VSP

CC No.1376/2019

for the offences U/Sec.419 and 420 IPC and Sec.66-C and 66-D of IT Act, 2000.

2.The brief averments of the prosecution case goes to show that :

(a) LW1-T.Kumari reported that she has an Andhra Bank joint account along with her husband in Marripalem Branch with A/c

No.104910100079131 and debit card No.6078851049002595. On 14.06.2018 her SIM card failed to receive signals from Airtel network and she didn't receive any OTP/messages in between 15.6.2018 and 16.06.2018. On 16.06.2018 her husband went to ATM machine for withdrawal of an amount of Rs.1,500/- rupees at which time her husband noticed that some unknown persons withdrawn an amount of

Rs.3,98,499/- from her account. Hence this report.

(b) Based on the report given by LW1–T.Kumari, a case in

Cr.No.62/2018 for the offence U/Sec.419 and 420 IPC and Sec.66-C and 66-D of IT Act, 2000 was registered by LW11/V.Gopinath, Inspector of

Police, Cyber Crime police station and took up investigation. He examined LW1-T.Kumari and LW2-T.Ramesh and recorded their statements. He addressed a letter to the Branch manager, Andhra Bank,

Marripalem branch to furnish the details of Bank Account No.

10491010007913. Basing on the Bank statement of LW1-T.Kumari, he analyzed and addressed a letter to LW10- Nodal Officer, Paytm with request to provide the transaction details like, transaction id, beneficiary bank account number, email id, contact number along with 65B IEA certificate.

3 CMM COURT, VSP

CC No.1376/2019

(c) LW11/V.Gopinath, Inspector of Police addressed a letter to LW9/

Nodal Officer Airtel for CDR and CAF of Mobile No.9989718803. Basing on the CDRs & Paytm transaction statement analysis he found mobile numbers and the address of the accused. On 29-06-2018, he served notice to A1 to A3 U/s 41-A CrPC to appear before him and accordingly, they appeared on 02-07-2018 and admitted their guilt. Than he secured

LW4-D.Yellaji and LW5-P.Satish Kumar as mediators and arrested the accused, recorded their confessional statement and seized mobile phones i.e., A1 produced his SAMSUNG MODEL J2, Gold colour, dual sim.

(1) IMEI No. 35815607699676602, (2) IMEI No. 35815707699676402 and his personal sim card. 7989101818 (JIO) and duplicate sim card bearing

No: 9989718803, A2 produced his ASUS cell phone, model No.

ASUS_ZO1BDB, Gold colour, dual sim (1) IMEI No. 351607080991943 (2)

IMEI No. 351607080991950, Airtel sim card. No. 9989718803 (duplicate), and his personal sim card. 7396711760(JIO) and A3 produced his MI

Mobile Model No. ME 17, IMEI No. 869781038103581, (2) IMEI

No.869781038103599. Sim card mobile no. 9963432270 (Idea) under the cover of mediators report.

(d) On 22-10-2018 LW-11/V.Gopinath, Inspector of Police served notice to A4 U/S 41A CrPC to appear before him and accordingly A4 appeared on 24-10-2018 and admitted his guilt. He secured LW6-

M.M.Rashad & LW7-G.C.Prabin and in their presence recorded his confession. After completion of investigation, on satisfaction that it disclosed the guilt of the accused, LW11/V.Gopinath, Inspector of Police, 4 CMM COURT, VSP

CC No.1376/2019

Cyber Crime police station filed charge sheet against A1 to A4 for the offences U/Sec.419 and 420 IPC and Sec.66-C and 66-D of IT Act, 2000.

3.After filing of the Charge sheet, this Court has taken cognizance for the offences U/Sec.419 and 420 IPC and Sec.66-C and 66-D of IT Act, 2000 against the accused 1 to 4 and summons were issued to them.

4.On their appearance, copies of documents were furnished to them as contemplated U/Sec.207 CrPC.

5.Accused 1 to 4 were examined U/Sec.239 Cr.P.C. and charges for the offences u/s 419 and 420 IPC and Sec.66-C and 66-D of IT Act, 2000 were framed, read over and explained to them in Telugu, for which they denied the same, pleaded not guilty and claimed to be tried.

6.During the course of trial, prosecution examined PW1 to PW5 and got marked Ex.P1 to Ex.P14 and MO1 to MO3 on their behalf.

7.After completion of prosecution evidence, Accused were examined

U/S.313 CrPC by explaining the incriminating evidence appearing against them in prosecution evidence for which they once again denied the same and pleaded not guilty. However A1 to A4 reported no defence evidence on their behalf.

8.Heard both sides. Perused the material on record.

9.Now the point which stood up for determination is :

Whether the prosecution was able to establish the guilt of Accused 1 to 4 for the offences U/Sec.419 and 420 IPC and Sec.66-C and 66-D of IT Act, 2000 beyond all reasonable doubt?

5 CMM COURT, VSP

CC No.1376/2019

10.POINT :

The case of the prosecution goes to show that the defacto complainant and her husband had joint account in Andhra Bank and that on 16.06.2018 when her husband went to withdraw certain amounts from the said account from ATM center, he realized that huge amounts were withdrawn from their account by some unknown persons and hence the present case.

11.To bring home the guilt of the accused the prosecution in all examined PW1 to PW5 in this case of whom PW1 to PW3 are the mediators in whose presence police are alleged to have apprehended the accused and recorded their confessional statement leading to deduce their complicity in this case. PW4 is the Andhra Bank Manager who was examined to speak with regard to the alleged bank transaction and PW5 is the investigation officer in this case. In fact when summons were issued to

LW1-Kumari/ defacto complainant and LW2/Ramesh/ husband of defacto complainant, VRO report was filed by the concerned police reporting that their whereabouts are not known and hence their evidence was closed.

Thus the only evidence on record is that of PW1 to PW5.

12.Proceeding further to appreciate if prosecution can be said to have bring home the guilt of the accused, as per PW1 and PW2 who are the mediators in whose presence police are alleged to have apprehended A1 to A3 on 2.7.2018 and on enquiry recorded the confessional statement of

A1 to A3, did not choose to support the case of the prosecution in any manner. As per PW1, when he went to the Cyber Crime police station to 6 CMM COURT, VSP

CC No.1376/2019

lodge a complaint regarding missing of amount of Rs.2,000/- from his savings bank account, Cyber Crime police requested him to affix signatures on some reports on 2.7.2018. So also PW3 who is working as

Supervisor, Naval Dock Yard corroborated the case of PW1 that he accompanied him to the police station and affixed his signatures on some papers at their instance. Nothing could be elicited from PW1 and PW3 during the cross examination by the learned APP to suggest that they are deposing false or to elicit regarding seizure of any cellphones from the possession of the accused. Mere admission of their signatures marked as

Ex.P1 and Ex.P3 is of no avail to deduce any presumption with regard to having any knowledge with regard to the contents of the said document.

Hence their testimony is of no avail.

13.Coming to the testimony of PW2, he is working as a welder and is a resident of Hyderabad. As per PW2, about 5 years back he went to Cyber

Crime police-station at the request of police where they obtained his signatures on some papers marked as Ex.P2 and denied having any knowledge with regard to the contents of the same or any proceedings having taken place in his presence. Nothing could be elicited from this witness either during the cross examination by learned APP to suggest any proceedings wherein any confessional statement of the accused was recorded in their presence as alleged. Thus of no avail.

14.Undoubtedly bare confessional statement made by any person while in the custody of a police officer itself is not admissible in evidence.

However it is the case of the prosecution that pursuant to the confession 7 CMM COURT, VSP

CC No.1376/2019

made by A1 to A3 that the cellphones and sim cards which were utilized in conducting the alleged transactions were recovered and since PW1 to PW3 did not choose to support the case of the prosecution in any manner, the alleged seizure cannot be said to have been sufficed.

15.Proceeding further, PW4 was the Manager of Andhra Bank working at the relevant point of time. As per PW4, Cyber Crime police approached him with a request for furnishing the statement of account pertaining to account bearing No.1049100079131 for the period from 1.6.2018 to 1.8.2018 which is standing in the name of LW1/Kumari and LW2/Ramesh.

Accordingly he handed over the attested copy of the said statement of account which was marked as Ex.P4.

16.PW5 is the investigation officer who detailed the chronological events which has taken place from the time of registering the complaint by

LW1/Kumari/ defacto complainant after which he has addressed letter to the bank Manager and the Nodal Officers and traced out the transaction particulars which have lead him to identify A1 to A3, who on enquiry confessed their guilt and also handed over their cellphones and sim cards utilizing which they resorted to the said offence and they further disclosed regarding the complicity of A4 in this case whose confessional statement was recorded subsequently upon his apprehension under the cover of a separate mediators report. Through this witness the material documents were got marked as Ex.P5 to Ex.P13.

17.Appreciating the testimony of PW4 and PW5, undoubtedly it is reflecting that LW1/Kumari and LW2/Ramesh are having a joint account in 8 CMM COURT, VSP

CC No.1376/2019

Andhra Bank and Ex.P4 attested copy of their bank statement clearly discloses withdrawal of some amounts. It is the contention of the prosecution that Ex.P10 which is the attested-copy of KYC details generated in the name of Kandipalli Suribabu, Ex.P11 attested-copy of KYC details generated in the name of Ragata Raju/A3 clearly disclose that transfer of some amounts took place through these accounts. However during the course of cross-examination, it is suggested to PW5 that his investigation did not reveal anywhere regarding any transaction which has taken place between the victim or A3 for which he denied but however there is no cogent evidence placed on record except the attested copy of said statements to say that it is the accused who has operated the said accounts or were instrumental in withdrawing any such amounts. Above all, failure to examine the defacto complainant turned out to be fatal.

Thus though the prosecution placed reliance on Ex.P4 to Ex.P14 and MO1 to MO3, there is no cogent and reliable evidence placed on record to suffice their contention with regard to the seizure of MO1 to MO3 to say that any such transactions were made through MO1 to MO3 as alleged or to say that A1 to A3 were instrumental in resorting to the alleged offence.

Thus in all, prosecution can be said to have failed to establish the guilt of the accused beyond reasonable doubt.

18. In the result, accused 1 to 4 are found not guilty for the offences

U/Sec.419 and 420 IPC and Sec.66-C and 66-D of IT Act, 2000 and they are acquitted under Section 248(1) of CrPC.

9 CMM COURT, VSP

CC No.1376/2019

The bail bonds of Accused 1 to 4 executed earlier, if any, shall remain in force for a period of 6 months U/Sec.437-A CrPC. MO1 to MO3 shall be auctioned and the sale proceeds confiscated to State after lapse of appeal time.

Typed to dictation by the Stenographer Grade-1 on personal computer, corrected and pronounced by me in the Open Court, on this the 2nd day of April, 2024.

Sd/- K.V.L.Hima Bindu,

CHIEF METROPOLITAN MAGISTRATE,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution :

PW1 : D.Yellaji, mediator PW2 : G.C.Praveen, mediator PW3 : P.Satish Kumar, mediator PW4 : Ch.Venkatachalam, Manager, Andhra Bank PW5 : V.Gopinath, investigation officer

For Defence:

NIL

Exhibits marked

For Prosecution :

Ex.P1 : Signature of PW1 on mediators report dt.2.7.2018 Ex.P2 : Signature of PW2 on confessional mediators report dt.24.10.2018 Ex.P3 : Signature of PW3 on mediators report dt.2.7.2018 at 4.00 p.m.

10 CMM COURT, VSP

CC No.1376/2019

Ex.P4 : Attested copy of statement of account Ex.P5 : Certification u/s 65-B of Indian Evidence Act Ex.P6 : Attested copy of customer details pertaining to A1 of Airtle Company Ex.P7 : Attested copy of Airtel prepaid enrollment form in the name of LW1/Kumari Ex.P8 : letter addressed by Paytm Payments bank Dt.14.03.2019 along with certification U/Sec.2-A of Bankers Book Evidence Act Ex.P9 : Attested copy of KYC details of A2, customer information number and other details (4 pages) Ex.P10 : Attested copy of KYC details generated in the name of Kandipilli Suri Babu, customer information number and other details (5 pages) Ex.P11 : Attested copy of KYC details generated in the name of Ragatha Raju/A3, customer information number and other details (19 pages) Ex.P12 : Mediators report pertaining to confessional statement of A4 Dt.24.10.2018 Ex.P13 : Mediators report pertaining to confessional statement of A1 to A3 Dt.02.07.2018. Ex.P14 : FIR along with report.

For Defence: -Nil-

Material Objects:

MO1 to MO3 : Three cellphones

Sd/- K.V.L.Hima Bindu,

CHIEF METROPOLITAN MAGISTRATE,

VISAKHAPATNAM.

11 CMM COURT, VSP

CC No.1376/2019

CALENDER AND JUDGMENT

IN THE COURT OF CHIEF METROPOLITAN MAGISTRATE,

VISAKHAPATNAM

CALENDER CASE NO.1376/2019

(Cr.No.62/2018 of Cyber Crime Police Station, Visakhapatnam city)

Date of offencePrior to 18.06.2018

Date of report or complaint18.06.2018

Date of apprehension of the accused A1 to A3 on 02.07.2018 and A4 on 24.10.2018

Date of commencement of trial05.12.2022

Date of close of trial26.02.2024

Date of sentence or order 02.04.2024

Accused is in Jail/BailOn Bail

Explanation of delay or remarksDue to non production of witnesses Name of the Complainant State represented by the Inspector of Police, Cyber Crime Police Station, Visakhapatnam city.

Name of the accused

1. Tullibilli Rajesh, S/o Ramesh, 26 years, R/o D.No.10-3-3/72, Humayunnagar, Mehdipatnam, Hyderabad

2. Gompa Krishna Rao, S/o Ramana, 23 years,Ippilivanipalem.village, Chinthagatla post, Pendurthy Mandal, Visakhapatnam

3. Ragatha Raju, S/o Jagannadham, 23 years, D.No.6-10, Chepala Uppada, Bhimili, Visakhapatnam

4. Arattupuzha Manoj, S/o Mohanan, 27 yrs, R/o House No.8-79, Jayaram Nagar, Quthbullapur, Hyderabad, Occupation-

AIRTEL CSO (CUSTOMER RELATIONSHIP

OFFICER)

12 CMM COURT, VSP

CC No.1376/2019

OffencesU/Sec.419 and 420 IPC and Sec.66-C and 66- D of IT Act, 2000

Finding Accused are found not guilty

Sentence In the result, accused 1 to 4 are found not guilty for the offences U/Sec.419 and 420 IPC and Sec.66-C and 66-D of IT Act, 2000 and they are acquitted under Section 248(1) of CrPC. The bail bonds of Accused 1 to 4 executed earlier, if any, shall remain in force for a period of 6 months U/Sec.437-A CrPC. MO1 to MO3 shall be auctioned and the sale proceeds confiscated to State after lapse of appeal time.

Sd/- K.V.L.Hima Bindu,

Chief Metropolitan Magistrate, Visakhapatnam.