Sri M. Lakshmi Narayana

1 NDPS SC 8/2014

IN THE COURT OF THE ADDITIONAL SESSIONS JUDGE (SPL.COURT)

VIZIANAGARAM

Present:- Smt. M.G.Priyadarshini, I Addl.Sessions Judge (Spl.Judge) Vizianagaram

Friday, the 5th day of September, 2014

N.D.P.S. SESSIONS CASE No.8 of 2014

Between:-

State, represented by the Prohibition & Excise Inspector, S.Kota.

…COMPLAINANT And:-

Matam Arjun, s/o late Sumnath, 23 years, r/o K.Panasaput Village, Dumbriguda Mandal, Visakhapatnam District. …ACCUSED

This case coming on 01.09.2014 for final hearing before me in the presence of the Additional Public Prosecutor for the complainant-State and of Sri P. Veerabbai, Advocate for accused and having stood over to this day for consideration, this Special Court delivered the following:-

J U D G M E N T

The Prohibition & Excise Inspector, Prohibition & Excise Station, S.Kota has laid the charge sheet before this court against the accused in Crime No.

254/2013-14 under Sec. 8 (c) r/w 20 (b) (ii) (C) of the N.D.P.S. Act 1985, of

Prohibition and Excise Station, S.Kota.

The case of the prosecution as set out is that on 30.12.2013 at about 5.40 p.m., the Prohibition and Excise Inspector, S.Kota (LW8) along with his staff were conducting route watch at Girijan Corporation check post, Boddavara village, S.Kota Mandal, stopped one APSRTC Bus bearing No.AP 35 Z 0035 coming from Aaraku, and issued search notice to the bus driver and conductor (LWs.1 and

2) and conducted search in the bus and during search the Prohibition and Excise

Inspector, S.Kota (LW8) and his staff found the accused sitting with bags and Ganja smell is coming from bag and on questioning the accused perturbed and informed that it contains Ganja and disclosed his identity particulars. Thereupon the

Prohibition and Excise Inspector, S.Kota (LW8) disclosed his identity and informed 2 NDPS SC 8/2014 the accused that he is a Gazetted officer and the accused is having right of option to be searched either before any Gazetted officer or before himself and issued notice to which the accused agreed that search can be made before the

Prohibition and Excise Inspector, S.Kota (LW8). Thereupon the Prohibition and

Excise Inspector, S.Kota (LW8) verified one bag which is in red colour contains

Ganja and the other bag is in kumkuma colour travelers bag and the accused stated that he purchased the Ganja from an unknown person in Sarasapadu village and going to Visakhapatnam. Later the Prohibition and Excise Inspector, S.Kota (LW8) along with mediators took the Ganja bags along with the accused to the nearest Kirana shop near Girijana Corporation check post and weighed the same in the presence of mediators and found that the bags contains 7.50 Kgs and 7.300

Kgs i.e., total 14.800 Kgs of Dry Ganja, and after following the procedure contemplated under the NDPS act, 1985, arrested the accused, drew samples, seized the remaining contraband under the cover of mediators report drafted at the scene of offence returned to the Excise Station, Salur and registered a case in

Cr.No.251/2013-14 and sent the samples to chemical analyst, after receipt of analyst report and after completion of investigation he filed charge sheet against the accused.

3. This Court, being the Special Court to try the cases under the

N.D.P.S. Act, has taken the case on file under section 8 (c) r/w Section 20 (b) (ii) (c) of the said Act. After securing the presence of accused copies of the case record were furnished to him as contemplated u/s.207 Cr.P.C.

4.This court, after hearing both sides and after considering the material on record, charge u/section 8 (c) r/w 20 (b) (ii) (C) of N.D.P.S. Act 1985 has been framed against the accused, read over and explained to the accused in

English, for which the accused pleaded not guilty and claimed to be tried.

5.In order to prove its case, the Prosecution has cited nine witnesses. Out of them, the Prosecution has examined P.Ws 1 to 6 and got marked Exs.P.1 to P.11 besides M.Os.1 and 2

6.After closure of Prosecution evidence, the accused was examined u/s.313 Cr.P.C and the same was read over and explained to him in 3 NDPS SC 8/2014

English, to which, they denied the incriminating evidence found against him in the evidence of Prosecution witnesses and stated that he has not committed any offence and reported no defence.

7.Heard the arguments of the learned Additional Public Prosecutor and the learned defence Counsel.

Now the point for determination is whether the prosecution has proved the guilt of the accused for the offence u/sec. 8(c) r/w 20(b)(ii)(C) of the

N.D.P.S.Act beyond all reasonable doubt?

1.POINT :- (i) The case of the prosecution as set out is that on 30.12.2013 at about 5.40 p.m., P.W.5 along with his staff were conducting route watch at Girijan Corporation check post, Boddavara village, S.Kota Mandal, stopped one APSRTC Bus bearing No.AP 35 Z 0035 coming from Aaraku, and issued search notice to the bus driver and conductor (LWs.1 and 2) and conducted search in the bus and during search P.W.5 and his staff found the accused sitting with bags and Ganja smell is coming from bag and on questioning the accused perturbed and informed that it contains Ganja and disclosed his identity particulars. Thereupon P.W.5 disclosed his identity and informed the accused that he is a Gazetted officer and the accused is having right of option to be searched either before any Gazetted officer or before himself and issued notice to which the accused agreed that search can be made before P.W.5. Thereupon P.W.5 verified one bag which is in red colour contains Ganja and the other bag is in kumkuma colour travelers bag and the accused stated that he purchased the Ganja from an unknown person in Sarasapadu village and going to Visakhapatnam. Later P.W.5 along with mediators took the Ganja bags along with the accused to the nearest

Kirana shop near Girijana Corporation check post and weighed the same in the presence of mediators and found that the bags contains 7.50 Kgs and 7.300 Kgs i.e., total 14.800 Kgs of Dry Ganja, and after following the procedure contemplated under the NDPS act, 1985, arrested the accused, drew samples, seized the remaining contraband under the cover of mediators report drafted at the scene of offence returned to the Excise Station, Salur and registered a case in

Cr.No.251/2013-14 and , sent the samples to chemical analyst, after receipt of 4 NDPS SC 8/2014 analyst report and after completion of investigation he filed charge sheet against the accused.

(ii)It is vehemently argued by the learned defence counsel that P.W.5 failed to comply with the mandatory provisions enshrined in the

NDPS Act, particularly, Secs.42 and 50 as such the non compliance of the mandatory provisions of the Act, vitiates the entire prosecution.

(iii) Before examining the issue as to whether or not the trial of the case is vitiated for non compliance of Sec.42 (2) of the Act, with reference to the case law on this subject, I feel it is necessary to extract Sec.42 (2) of the Act for better appreciation, which reads as follows:

“42. Power of entry, search, seizure and arrest without warrant or authorization---(1) any such officer (being an office superior in rank to a peon, sepoy, or constable) to the departments of Central Excise, Narcotics, Customs, Revenue Intelligence or any other department of Central Government including paramilitary forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy, or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article, which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place may between sunrise and sunset”.

a) enter into and search any such building, conveyance or place;

b) in case of resistance, break open any door and remove any obstacle to such entry; 5 NDPS SC 8/2014

c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has season to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing in forfeiture under Chapter VA of this Act; and

d) detain and search, and if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act;

Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief; (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior”.

(iv)The learned Addl.P.P argued that the prosecution has strive hard in conducting the investigation and complied with all the legal and mandatory provisions manifested under the NDPS Act, and there is no iota of evidence, in rebuttal, let in by the accused to show the non compliance of the provisions of the Act. Further, P.W.6 being Gazetted Officer is empowered and acted under the Provisions of Sec.41 of the Act, need not follow the mandatory provision under Sec.42(2) of the Act and he further contended that merely because of non compliance of Sec.42(2) of the Act the entire case of the prosecution cannot be thrown out as the accused committed the forbidden act, which is against the safety and security of the society, as such, the accused deserves conviction.

(v)In the instant case, P.W.5 who detected the offence, arrested the accused, seized the contraband and drafted Ex.P.4 mediators report deposed that, on 30.12.2013 at about 5.30 p.m.,, he along with his staff 6 NDPS SC 8/2014 conducted checking of vehicles, in that process at about 5.40 p.m., they stopped the APSRTC Bus bearing No.AP 35 Z 0035 at Girijana Corporation check post,

Boddavara Junction, for checking. He informed P.Ws 1 and 2 who are the driver and conductor of the said bus about illegal transportation of ganja in the bus and issued

Ex.P.1 search to them to which they gave consent for checking. On that, they entered the bus, while checking, they found ganja smell from the last seat of the bus and found the accused sitting on the last seat with two bags, one bag is red and another is merun, when they questioned the accused stated that the bags contain

Ganja. Thereupon, P.W.5 introduced himself as a Gazetted Officer and issued

Sec.50 notice to the accused, later, he got weighed the ganja and found 7 Kgs 300 grams in the two bags, on that he drew sample of 100 grams each, affixed identification slips, on which, himself, accused, his staff and mediators subscribed their signatures. Thereupon, he arrested the accused, seized the remaining contraband and took them to Excise Station, Salur, registered a case in Cr.No.

254/2013-14 sent the samples under Ex.P.9 letter of advise to chemical analyst, on receipt of analyst report and completion of investigation, he filed charge sheet against the accused. In the entire evidence of P.W.5, there is no whisper that he informed about detecting of the offence to his immediate superior officer, within 72 hours, as envisaged u/s.42 of the NDPS Act. The Act itself mandates that the

Investigation Officer who detects the offence under NDPS Act has to send the information regarding such detection, to his immediate official superior within 72 hours, but, in the instant case, no such information was given by P.W.5 to his immediate official superior within 72 hours. So, the failure on the part of the P.W.5 to inform his immediate official superior regarding detection of the crime, would ultimately lead to an adverse inference that P.W.5 has not followed the mandatory provisions under Sec.42(2) of the NDPS Act. Even according to the settled legal position laid down in a case between STATE OF ORISSA VS. LAXMAN JENA reported in 2002(2) ALD CRL.567 SC wherein the Hon’ble Apex Court while dealing with the provisions under Sec.42(2) of the Act held that the Investigating

Officer failed to comply with the mandatory provisions under sec.42(2) of the Act, the accused is entitled for acquittal and in another case between SIVA KUMAR 7 NDPS SC 8/2014

BISWAS AND OTHERS VS. STATE OF A.P. reported in 2012(2) ALD CRL.264

A.P., wherein His Lordship held in para 12 that non compliance of the mandatory provisions under Sec.42(2) of the Act vitiates the trial. So, in view of the penultimate result of the decisions coupled with the material on the record, it is to be and is held that the prosecution failed to comply with the mandatory provision manifested under Sec.42 of the Act.

(vi)The learned counsel for the accused further argued that the Prosecution has also failed to comply with the mandatory provisions under

Sec.50 of NDPS Act, and on such ground also the accused is entitled for acquittal.

Now, I would refer the provisions contained in Sec.50 of the NDPS Act which reads as follows:

50. Conditions under which search of persons shall be conducted:- (1)When any officer duly authorized under sections 42 is about to search any person under the provisions of Section 41, Section 42 or Section 42, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (2)If such requisition is made, the Officer may detain the person until he can bring him before the Gazetted officer or the

Magistrate referred to in sub-section (1).

(3)The Gazetted Officer or the magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4)No female shall be searched by anyone excepting a female. (5)When an officer duly authorized under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or

Magistrate, proceed to search the person as provided under

Section 100 of the Code of Criminal Proceldure, 1973 (2 of 1974) 8 NDPS SC 8/2014 (6)After a search is conducted under sub section (5), the Officer shall record the reasons for such belief which necessitated such search and within seventy two hours send a copy thereof to his immediate official superior.” An attentive perusal of the above section shows that the person who was alleged to be found in possession of Narcotic drug can be opted to be searched

before Gazetted Officer, or, a Magistrate. In this case, as per the evidence of

P.W.5 he along with his staff and mediators were checking the vehicles on 30.12.2013 at about 5.30 p.m. and in that process, they stopped the APSRTC bus bearing No.AP 35 Z 0035 at Girjana check post, T. Boddavara Junction for checking, in the said process they found the accused sitting in the last seat of the bus with two bags, on suspicion, P.W.5 questioned the accused about the contents of the bags, on that the accused revealed that it is ganja, on that P.W.5 in the presence of P.Ws 1 and 2 who are the driver and conductor of the said bus, and his staff opened the bags and found ganja in it, thereafter, P.W.5 introduced himself as a Gazetted Officer to the accused and served notice u/sec.50 of the NDPS Act.

Further, the evidence of P.Ws 3 and 4 also show that they accompanied P.W.5 while checking the vehicles at T. Boddavara junction check post, in that process they stopped the bus APSRTC bus bearing No.AP 35 Z 0035 at Girjana check post,

T. Boddavara Junction, while checking the vehicle, they found the accused sitting in the last seat of the bus by placing with two bags between his legs, on suspicion, they questioned the accused about the contents of the bags with the help of P.W.5, on that the accused revealed that the bag contains ganja, on that P.W.5 opened the bag and found ganja in it, thereafter, he introduced himself as a Gazetted Officer and served notice u/sec.50 of the NDPS Act. So, this part of the testimonies of

P.Ws.3, 4 and 5 clearly discloses that P.W.5 has straight away opened the bags and found ganja in it and then introduced himself as a Gazetted Officer to the accused, where P.W.5 would have done the same, at the first instance. According to P.Ws 3, 4 and 5 they served notice u/s.50 of the NDPS Act on the accused. But, quite astonishingly, the prosecution did not exhibit any such notice said to have been issued to the accused u/sec.50 of NDPS Act. Therefore, absolutely, there is no 9 NDPS SC 8/2014 evidence to show that P.W.6 complied with the provisions under Sec.50 of the NDPS

Act.

(vii)P.Ws.1 and 2 who are the driver and conductor of the bus, turned hostile and did not support the case of the prosecution. They deposed that on 30.12.2013 at about 2.30p.m., the Prohibition and Excise police stopped the bus after issued Ex.B.1 carbon copy of search notice and during search they found one person sitting with bags and they never saw the accused who was standing in accused dock and the police obtained their signature on a written paper and they do not know the contest of the same and they do not know when they signed on the slips affixed to the slips. In cross examination

P.Ws.1 and 2 categrocially stated that there are sixty passengers in the bus except that they did not state about the search and search of contraband. So, the evidence of P.Ws 1 and 2 is not helpful to the case of the prosecution.

(viii)P.Ws.3 and 4 who are then as Proh. & Excise S.I., deposed regarding checking of the bus on 30.12.2013 during route watch, in that process they found the accused in the last seat of the bus, by placing two bags in between his legs, on that P.W.5 informed whether he has any objection to be searched before him as Gazetted officer and issued option notice to the accused to which he gave consent to be searched before P.W.5 , on that the accused revealed that the bags contains ganja, on that P.W.5 in their presence and in the presence of P.ws.1 and 2 opened the bagw and found ganja in it, later, they got weighed the ganja and found 7. Kgs. 300 grams, later, P.W.5 drew 100 grams of ganja for the purpose of sample, arrested the accused and returned back to the

Excise Station. However, in the later part of his evidence, P.Ws.3 and 4 deposed that by the time they were search the bus, there were ten passengers were traveling in the bus and even though they requested the passengers to act as mediators, but none of them came forward to act as mediators, as such they asked

P.ws.1 and 2 to act as mediators and they have not mentioned the name of Kirana shop where weighed the ganja but the same were not mentioned the same in the

Ex.P.4 mediators’ report and admitted that they have not mentioned in Ex.P.4 10 NDPS SC 8/2014 mediator’s report that he drafted the same on the dictation of P.W.5 and they have not seized the bus ticket of accused nor seized S.R. of the bus from the P.W.1.

2 The evidence of P.ws.1 to 4 reveals that there were 12 passengers were travelling in the bus at the time of checking, but P.W.5 in cross examination stated that there were 35 passengers were travelling and admitted that they have not made any efforts to secure the mediators other than P.ws.1 and 2 and also admitted that he has not seized the bus ticket from the accused nor seized the S.R. from P.W.1 as such no proof was filed to show that the accused travelled in that particular bus on that day. Apart from that P.W.5 failed to examine the owner of the kirana shop where they got weighed the Ganja and P.w.5 admitted that by the time they prepared Ex.P.4 mediator’s report none of the passengers were present on that spot, therefore they could not obtain the signatures of passengers, which is not believable and the testimony of P.Ws.3 to 5 is nothing but concoction in order to get over from the lacunae in the case of the prosecution.

(ii)Section 50 of the NDPS Act contains two limbs. The primary is search of a person and the secondary is search before a Gazetted Officer. Though in this case the alleged search is conducted on the bag said to have been found in possession of the accused, the prosecution failed to comply with the second limb as it has not produced any document showing the status of P.W.2 as Gazetted Officer.

At this juncture, I would like to refer the decision submitted by the learned counsel

for the accused, reported in 2014 SAR (Crl) 103 in a case between GURJANT

SINGH @ JANTA VS. STATE OF PUNJAB. Wherein the Hon’ble Supreme Court held at para 23 that “……In other words, the purpose of Sec.50 was to ensure that on the one hand, the holding of a search and seizure was not a farce of an exercise in order to falsely implicate a person by unscrupulous police authorities, while on the other hand to prevent an accused from committing an offence a serious nature against the society, warranting appropriate criminal proceedings to be launched and in the event of establishing such offence, conviction and sentence to be imposed in accordance with law. Therefore, such a dual requirement of law prescribed under sec.50 cannot be dealt with lightly by the Courts dealing with the 11 NDPS SC 8/2014 trial of such offences brought before it”. The facts in the above stated decision are similar to that of the present case on hand, as such the decision submitted by the learned counsel for the accused squarely applicable to the present case on hand. In the present case also, nothing was shown by the prosecution that the accused was searched before a Gazetted Officer, or, a Magistrate. Therefore, viewed from any angle, the prosecution failed to comply with the provisions of Sec.50 of the Act.

(iii)The next contention of the learned counsel for the accused is that P.W.5 is not authorized and empowered to detect the offence under NDPS Act and no document, or, gazette notification is filed to show his competency in conducting investigation in this case, as such the trial of the case is liable to be vitiated on the said ground itself. A perusal of the decision reported in 2008(2)

ALD Crl 340 A.P, in a case between ANNIKOTI JOSEPH BINOY AND

ANOTHER VS. STATE OF A.P. wherein His Lordship held that:

“The officers empowered by general or special order of Government alone, competent to enter search, seize and arrest without warrant or authorization, G.O empowering officers to discharge such duties to be proved as provided under Sec.78 of the Evidence Act and the Court cannot automatically take judicial notice of such notification.” 3 In the instant case also P.W.5 though serving as Prohibition &

Excise Inspector, he did not choose to file any G.O or notification showing the powers conferred under the Statute to conduct investigation in this type of cases.

Except mentioning in the charge sheet, now where in his entire evidence P.W.5 deposed that he is an officer empowered either under Sec.41 or 42 of NDPS Act, nor did the Addl.P.P., who conducted trial of the matter elicited in the evidence to establish that P.W.5 is an officer empowered under Sec.42 of the NDPS Act. It is for the Prosecution to prove beyond all reasonable doubt the guilt of the accused and in the absence of any proof that P.W.5 is an officer empowered to conduct search, or, seizure at the relevant point of time, it is not safe to convict the accused.

Hence, under this count also, it can be concluded that the case of the Prosecution derails on its own.

12 NDPS SC 8/2014

(ii)It is further contended by the learned counsel for the accused that the investigation in this case is vitiated as P.W.5 himself detected the offence, conducted search and seizure of the contraband, arrested the accused and registered crime, investigated the matter and sent the samples to the R.F.S.L., for chemical analysis along with Ex.P.9 letter of advice and handed over the case to

P.W.6 for further investigation who gave evidence as P.W.6. P.W.6 deposed that he took up investigation in this case from P.W.5 and verified the same and found it on correct lines and after receipt of Ex.P.11 RFSL report and filed charge sheet after completion of investigation and P.W.6 in his cross examination stated about mentioning of crime numbers, quantity of Ganja and allotment of serial numbers to the samples in charge sheet etc that the numbers were wrongly mentioned and he stated that it is occurred due to typographical mistake and the evidence of P.W.6 is no-way helpful to the case of prosecution as he is no way connected to the investigation of this case, except filing of charge sheet.

As rightly pointed out by the learned counsel for the accused, in the instant case P.W.5 detected the offence, registered case on the basis of Ex.P.5 drafted, arrested the accused, investigated the case and finally P.w.6 filed charge sheet. Further, the said fact of registration of crime by him was clearly admitted by

P.W.5 in his cross examination. At this juncture, I would like to refer a decision reported in 2003(2) ALT Crl 95 A.P., in a case between GURAJALA RAMERSH

AND OTHERS VS. STATE OF A.P., wherein His Lordship held that:

“In the instant case, it is manifest, that illegality was committed by the same Police officer, who detected or found the offence or crime also giving the F.I.R., recording the statements of the witnesses under sec.161(3) Cr.P.C., 1973 and also otherwise investigating into the crime and finally filing the charge sheet and giving evidence as P.W.3”

Under these circumstances and in view of the dictum laid down in the above cited decision, the investigation done by P.W.5 can be said to be illegal. The

Investigation in case of a narcotic offence which is a special statute is entirely different from the investigation of a case under the provisions of IPC. The 13 NDPS SC 8/2014

Investigation Officer is required to comply with all the requirements as provided under the Special Act like NDPS Act, without giving opportunity to the accused to escape from the punishment. However, in this case, it appears that the investigation is not conducted on sound lines.

(iii)It is also pointed out by the learned counsel for the accused that there is discrepancy regarding the classification of the vehicle in which the alleged search is conducted. According to P.Ws.3 to 5 there were many passengers travelling at the time of checking but the prosecution failed to examine any one of the passenger to act as mediators, apart from P.ws.1 and 2 who driver and conductor turned hostile and did not support the case of prosecution also gives strength to the contention of the learned counsel for the accused. Further they failed to seizure the bus ticket of accused nor seized the S.R. of bus from P.W.1, , as such it is doubtful whether they send the accused or not and whether P.W.6 along with his staff conducted checking of vehicle, at the time and place as mentioned in the mediators report. P.W.3 to 4 deposed that they started at 8.30 p.m., Excise

Station, S.Kota and made rails at Sompuram, Dabbagunta, Gowripuram, Bhavani and Amalapuram and they searched other vehicles but they have mentioned the said fact in Ex.P.4 and they have not filed any record to show that they searched other vehicles on that day before search the bus. Apart from that the place of offence is situated in a busy locality and also Ex.P.4 does not disclose the name of kirana shop and its owner and non seizure of but ticket of accused and S.R. of bus, and the contradictory testimonies of P.Ws.3 to 5 a genuine doubt arises in the mind of the court about actual occurrence of the incident. Surprisingly, the prosecution exhibited Ex.P.11 analyst report. As seen from the list of witnesses appended to the charge sheet, the prosecution has cited mediator as L.W.4 to speak about the mediators report and the procedure done by P.w.5 and the chemical examiner was cited as L.w.7 but the learned APP has given the evidence of mediator and chemical examiner which is fatal to the case of prosecution. Therefore, the search, seizure and procedure covered under Ex.P.4 is not proved, hence the registration of the crime against the accused is doubtful, as such, benefit of doubt shall be given to the accused.

14 NDPS SC 8/2014

(iv)For the above narrated reasons, this Court is of the considered opinion that the prosecution has miserably failed to bring home the guilt of the accused beyond all reasonable doubt for the offence punishable under sec.

8(c) r/w 20(b) (ii) (C) of the N.D.P.S.Act, 1985 and accordingly the accused deserves acquittal. I answered the point accordingly.

4.IN THE RESULT, the accused is found not guilty for the offence u/sec. 8(c) r/w 20(b) (ii) (C) of the N.D.P.S.Act, 1985 and accordingly he is acquitted for the said offence u/s.235(1) Cr.P.C.

M.Os 1 and 2 and the unmarked non valuable property, if any, in this case shall be destroyed after expiry of appeal time.

Accused is directed to execute self bond for Rs.10,000/- under

Sec.437(A) Cr.P.C.

Typed to my dictation transcribed by her corrected and pronounced by me in open court on this the day 5th day of September, 2014.

Sd/- M.G.Priyadarshini

I ADDITIONAL SESSIONS JUDGE (SPL.JUDGE),

VIZIANAGARAM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution :-For Defence :-

P.W.1 : Nachu Narayana MurthyNone P.W.2 : G.Venkatapathi Raju P.W.3 : B.Madhukar P.W.4 : B. Madhusudhana Rao P.W.5 : B.Jayarama Reddi, Proh. & Excise Inspector. P.W.6 : D.Gopala Krishna, Proh. & Excise Inspector, S.Kota.

DOCUMENTS MARKED

For Prosecution :-

Ex.P.1 : Carbon copy of search notice. Ex.P.2 : Signature of P.W.1 on the mediators report Ex.P.3 : Signature of P.W.2 on the mediators report Ex.P.4 : Mediators report Ex.P.5 : Carbon copy of the option notice Ex.P.6 : Option exercised by the accused Ex.P.7 : Rough sketch of the scene of offence Ex.P.8 : Original F.I.R. Ex.P.9 : Letter of advice Ex.P10 : Letter addressed to the Superintendent Ex.P11 : R.F.S.L. report 15 NDPS SC 8/2014

For Defence : Nil

MATERIAL OBJECTS MARKED

M.O.1 : Two bags containing ganja M.O.2 : Two sample packets

Sd/- M.G.Priyadarshini

I ADDITIONAL SESSIONS JUDGE,

VIZIANAGARAM.

Copy to the Registrar (Judicial), High Court of A.P. Hyderabad.

1 Crl.A.84/2012

IN THE COURT OF THE I ADDL.DISTRICT AND SESSIONS JUDGE;VIZIANAGARAM

Present:- Smt. M.G.Priyadarshini, I Addl.District and sessions Judge Wednesday, this the 26th day of November, 2014.

CRIMINAL APPEAL NO.84 of 2012

From what court the appeal Court of the Judicial Magistrate of the First Class, is preferred (Spl. Mobile Court) Vizianagaram No.of the case in that court C.C.No.130/2010 Name and description of theKalavapudi Hariram, s/o late Krishnamacharyulu, AppellantD.No.7-8-17/2/7, Plot No.8, Sri Sai Nilayam, Har- bour Park Road, Visakhapatnam. Name and description of the respon-1. State of A.P. reptd by the Public Prosecutor, dents Vizianagaram.

2. Pilla Gopi, s/o late Surya Prakasarao, D.No.1-29, Prasad Nagar, V.T.Agraharam, Vizianagaram. Sentence and Law under which the The accused is convicted u/Sec.255 (2) Cr.P.C. and appellant is convicted. sentenced to suffer R.I. for a period of one year and to pay compensation of Rs.1,50,000/- to the complainant under Section 357 (3) Cr.P.C. for the offence under Section 138 of N.I.Act. The period of detention from 26.11.2011 to 28.11.2011 and 20.6.2012 to 24.6.2012 is given set of under Sec- tion 428 Cr.P.C. Whether confirmed, modified or MODIFIED reversed and if modified, the The appeal is dismissed, confirming the convic- modification. tion imposed by the learned Judicial Magistrate of the I Class, (Special Mobile Court,) Vizianagaram in C.C.No. 130/2010 dt. 25.6.2012 for the offence punishable under section 138 N.I.Act, against the appellant/accused. However, the sentence of im- prisonment i.e.., Rigorous imprisonment for a pe- riod of one year is modified and converted into fine of Rs.1,000/-. The appellant is directed to pay the fine amount of Rs.1,000/- imposed by this court.Coming to the compensation of Rs.1,50,000/- imposed by the trial court as the ac- cused has already paid the cheque amount to the complainant before this Court, hence, the same is set aside accordingly. The accused/appellant is di- rected to execute a bond for Rs.10,000/- under section 437-A Cr.P.C. Date of: Presentation26.06.2012 Filing26.06.2012 Notice issued by court to appear26.06.2012 Bail bond if appellant have beenOn bail Let out on bail. Appellant ordered to appear 24.07.2012 Hearing 21.11.2014 Judgment26.11.2014

This appeal coming on 21-11-2014 for final hearing before me, upon perusing the petition of appeal and the record of the evidence and proceedings and upon duly considering the same and af- ter hearing N.Madhusudhana Rao, Advocate for the appellant and of Additional Public Prosecutor for the 1st respondent/State and of Smt.P.V.Vara Laxmi, Advocate for 2nd respondent, I do adjudge and pass the following:-

J U D G M E N T

This Criminal Appeal is filed by the appellant/accused against the calendar and judgment dated 25.6.2012 in C.C.No. 130/2010 whereby and where under the learned Judicial Magis- trate of the I Class, Special Mobile Court, Vizianagaram convicted the appellant/accused for the offence

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punishable u/sec.138 of the Negotiable Instruments Act (for short “N.I.Act”) and sentenced him to un- dergo Rigorous Imprisonment for a period of one year and to pay compensation of Rs.1,50,000/- .

The appellant will be referred to as the accused hereinafter.

2.The brief facts of the case, as set out in the complaint, are as follows:-

The accused had obtained cash loan of Rs.1,50,000/- from the complainant on 2.12.2007 for his family expenses and clearance of sundry debts and executed a promissory note in favour of the complainant by undertaking to repay the said amount with interest at 24% p.a. despite demands made by the complainant, the accused did not repay the due amount, however the accused has issued a cheque bearing No. 721631, dt.6.1.2009 for rs.1,00,000/- drawn on Hongkong and Shang- hai Banking Corporation Limited,(HSBC) Visakhapatnam and the complainant presented the said cheque in his bank i.e., Ing Vysya Bank, Vizianagaram on 6.1.2009 and the said cheque was returned unpaid on 24.1.2009, with an endorsement, “INSUFFICIENT FUNDS”. Thereupon, the complainant got issued a legal notice on 3.2.2009 to the accused demanding him to pay the cheque amount and the accused received the said notice but neither gave any reply nor paid the debt amount, which per- sisted the complainant to file the present complaint against the accused, for the offence punishable under sec.138 of N.I.Act.

3.On filing the complaint, the learned Judl.Magistrate of the I Class, Spe- cial Mobile Court, Vizianagaram has taken the case on file under Sec.138 r/w 142 of the N.I.Act against the accused and numbered the complaint as C.C.No.130/2010.

4. On appearance of the accused before the trial court, he was examined under section 251 Cr.P.C., explaining to him the sum and substance of the allegations made in the com- plaint, which he denied and claimed to be tried.

5.During the trial, before the trial court, to prove his case, the complainant him- self was examined as P.W.1 and got marked Exs.P.1 to P.8 documents. No oral or documentary evi- dence was adduced on behalf of the accused.

6.On consideration of the oral and documentary evidence, the learned Magistrate found the accused guilty for the offence u/s.138 of the N.I.Act convicted and sentenced him as afore- said.

7.Aggrieved by the conviction and sentence, the appellant/accused preferred the present appeal, assailing the judgment under appeal among other grounds contending that the trial court has not properly appreciated the evidence on record and arrived at a wrong conclusion which re- sulted in miscarriage of justice.

8.Heard both sides.

9.Now the points for consideration are

(i) Whether there is any legally enforceable debt existed in between P.W.1 and the accused ; and

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(ii) Whether there are any grounds to interfere with the judgment of conviction passed by the trial court in C.C.No.130/2010 dated 25.6.2012 ?

10.P O I N Ts 1 and 2:- (i) The learned trial court judge, having found the ac- cused guilty of the offence punishable u/sec.138 of N.I.Act, convicted and sentenced the accused for the said offence.

(ii)Section 138 of the N.I. Act is as follows:

Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the dis- charge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either be- cause of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without preju- dice to any other provisions of this Act, be punished with imprisonment for a term which may be ex- tended to two years, or with fine which may extend to twice the amount of the cheque, or with both:

The explanation appended to Section 138 explains the meaning of the expres- sion debt or other liability for the purpose of Section 138. This expression means a legally enforceable debt or other liability. Section 138 treats dishonoured cheque as an offence, if the cheque has been is- sued in discharge of any debt or other liability. The explanation leaves no manner of doubt that to at - tract an offence under Section 138, there should be legally enforceable debt or other liability subsisting on the date of drawal of the cheque. In other words, drawal of the cheque in discharge of existing or past adjudicated liability is sine qua non for bringing an offence under Section 138 of the N.I.Act.

11. The learned Counsel for the respondent, while vehemently contend- ing that the appeal has no merit or substance, submitted that the complainant has successfully dis- charged the initial burden cast on him, as such the onus shifts on to the accused to rebut the presump- tion under the Section 118 and 139 of N.I. Act and the accused/appellant having failed to discharge the same, in the instant case and the Trial court has rightly convicted the accused. Thus contending the learned counsel for the respondent prayed for dismissal of the appeal.

12.It is settled principle of Law, in so far as the cases based on Negotiable

Instruments Act are concerned, the initial burden to prove the execution lies on the Drawee of the Ne- gotiable Instrument, that the instrument was issued/executed for consideration and in discharge of debt. When once the initial burden is discharged by the Drawee, the onus shifts on to the maker of the instrument and if the maker of the instrument fails to discharge the said burden he/she is liable for the legal consequences.

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13.In light of the above, this Court has carefully perused the evidence of

P.W.1. To prove the case of the complainant, he himself was examined as P.W.1 and deposed that on 2.12.2007 for his family expenses and clearance of sundry debts executed a promissory note in favour of the complainant by undertaking to repay the said amount with interest at 24% p.a. despite de- mands made by the complainant, the accused did not repay the due amount, however the accused has issued a cheque bearing No. 721631, dt.6.1.2009 for rs.1,00,000/- drawn on Hongkong and Shang- hai Banking Corporation Limited,(HSBC) Visakhapatnam and the complainant presented the said cheque in his bank i.e., Ing Vysya Bank, Vizianagaram on 6.1.2009 and the said cheque was returned unpaid on 24.1.2009, with an endorsement, “INSUFFICIENT FUNDS”. Thereupon, the complainant got issued Ex.P.5 legal notice on 3.2.2009 to the accused demanding him to pay the cheque amount and the accused received the said notice on 6.2.2009 under Ex.P.4 acknowledgement but neither gave any reply nor paid the debt amount, which persisted P.W.1 to file the complaint before the court.

14.The learned counsel for the accused submitted that the accused never borrowed any amount and there is no personal acquaintance between the accused and the com- plainant and the complainant has filed a false complaint against the accused and in fact the accused is resident of Visakhapatnam, whereas the complainant is resident of Vizianagaram. Further, the com- plainant has not examined any independent witnesses to prove his contention that the accused has borrowed the amount, such as, the scribe or attestor of the pronote are not examined and the signa- ture on the cheque does not belongs to the accused. Therefore, there is no legally enforceable debt in between the complainant and accused, hence, the accused is entitled for acquittal.

15.A perusal of the evidence of P.W.1 discloses that there is money transaction, took place between the complainant and accused as the complainant categorically deposed about ob- taining of hand loan and execution of a promissory note and also issuance of the cheque. In support of his contention, P.W.1 has got marked Exs.P.1 to P.8 documents which are cheque bearing

No.721631, dt.6.1.2009 for Rs.1,00,000/-; counter foil of deposit of Ing Vysya Bank, Vizianagaram, dt.6.1.2009, cheque return memo dt.12.1.2009, cheque return memo dt.12.1.2009, office copy of le- gal notice dt.3.2.2009, postal acknowledgement dt. 6.2.2009, original pronote dt.2.12.2007 for rs.1,50,000/- and C.C. of decree and Judgment in O.S.No.354/2010 on the file of Senior Civil Judge’s

Court, Vizianagaram. Apart from that the complainant has filed a civil suit and the same was decreed based on the promissory, which discloses that the complainant has complied with all the provisions contemplated under the N.I. Act. Further, the statutory presumption under sections 118 and 139 of

N.I. Act also goes to show that the complainant has discharged his obligation and the onus shifts on the accused and the court shall presume that the holder of the cheque received the cheque for dis- charge in whole or in part of any debt or other liability under section 139 of N.I. Act. Therefore, it is for the accused to rebut the said presumptions by coming into the witness box by adducing cogent evi-

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dence or atleast giving reply to the legal notice which was received by him but kept silent without giv- ing reply notice, further he did not deny the execution of promissory note or issuance of cheque , as such an adverse inference can be drawn against the accused. During cross examination of P.W.1, the learned counsel for the accused put suggestions that the revenue stamp affixed on Ex.P.7 pronote were taken from other documents affixed on it and the blanks on Ex.P.7 were filed after obtaining the signature of accused and further there is difference of ink on the cheque and the signature as the sig- nature appears to be in darker than the ink used to fill the cheque.

16.It is pertinent to state that the learned counsel for accused cross exam- ined P.W.1 on the aspect that on one hand the complainant has obtained the signature of accused af - ter affixing the stamp and on the other hand suggested that the accused never signed on Ex.P.1 pronote or Ex.P.7 cheque and also gave suggestion that a false complaint was filed against the ac- cused. Further the accused on one aspect admits his signature on Exs.P.1 and P.7 cheque and at the same time denies the signatures, the accused ought to have sent Exs.P.1 pronote and P.7 cheque to the hand writing expert, but he failed to do so. When the contention of accused that the com - plainant has foisted false case he is at liberty to file a complaint in the police station against the com- plainant to that effect but the accused did not take any steps to prove his innocence.

In this context, reliance can be placed in the Judgment reported in 2001 Cri.L.J.

4745 in a case between K.N.BEENA VS. MUNIYAPPAN AND ANOTHER, wherein the Hon’ble Apex Court, observed that “u/sec.118 of the N.I.Act, unless contrary is proved, it is to be presumed that the negotiable in- strument, including a cheque, had drawn for consideration and under Sec.139 of the Act, the court has to presume that unless contrary is proved, the holder of the cheque received the cheque for discharge in whole, or, in part of debt, or, liability. Thus, in a complaint u/sec.138 of the Act, the court has to pre- sume that the cheque had been issued for a debt, or, liability. However, this presumption is rebuttable and the burden of proving that a cheque had not been issued for a debt or liability is on the accused.

In another decision reported in 2004 Cri.L.J.3170 in a case between B.V.RANGAM VS. B.-

GOVINDA REDDY AND ANOTHER, wherein our Hon’ble High Court observed that “Once the cheque is in pos- session of a complainant, it must be deemed that he had discharged the initial burden as to legally en - forceable debt and as such, it is for the accused to prove that the said cheque was not issued for the purpose of any legally enforceable debt or liability”.

17.In the instant case, the accused has not come into the witness box nor adduced any evidence to rebut the contention of the complainant. Therefore, the accused has miser- ably failed to prove that there is no legally enforceable debt and Ex.P.1 was not issued in connection with any debt. Therefore, a perusal of the entire material on record clearly discloses that the accused has approached PW1 and obtained hand loan of Rs.1,50,000/- and in discharge of the same inspite of repeated demands, has issued Ex.P.7 cheque to PW1 and when PW1 presented the same for collection,

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it was returned by the banker under Ex.P.3 memo with an endorsement “insufficient funds” in the ac- count of accused. Thereupon P.W.1 has issued Ex.P.5 notice and the same received by the accused un- der Ex.P.6 acknowledgement and the accused did not gave any reply nor paid the debt amount.

Hence, the complainant by placing cogent material proved that there is legally enforceable debt exist- ing between himself and accused and in discharge of the same, has issued Ex.P.7 cheque.

A perusal of the judgment of the trial court, discloses that the trial Judge has rightly came to the conclusion that there is legally enforceable debt and the accused issued Ex.P.7 cheque in dis- charge of the said debt, which ultimately not Honoured and hence, found the accused guilty for the of- fence under Sec.138 of the N.I.Act. With regard to the imposing of punishment and compensation of

Rs.1,50,000/- whereas cheque was issued by the accused in favour of complainant for Rs.1,00,000/- reliance can be placed in a decision in Damodar S. Prabhu Vs. Syed Babalal H. (2010) 5 SCC 663, it is held where this Court briefly examined the object sought to he achieved by the provisions of section 138 NI Act and the purpose underlying the punishment provided therein and the punishment in section 138 cases is meant more to ensure payment of money rather than to seek retribution. The court said:

“Unlike that for other forms of crime, the punishment here (in so far as the complainant is concerned) is not a means of seeking retribution, but is more a means to ensure payment of money. The com- plainant’s interest lies primarily in recovering the money rather than seeking the drawer of the cheque in jail. The threat of jail is only a mode to ensure recovery. As against the accused who is willing to undergo a jail term, there is little available as remedy for the holder of the cheque. In the said deci- sion it is also held that we do not consider it necessary to examine or exhaustively enumerate situa- tions in which courts may remain content with imposition of a fine without any sentence of imprison- ment.

In view of the principles laid down in the decision, this court is of the opinion the pun- ishment in section 138 cases is meant more to ensure payment of money rather than to seek retribu- tion. However, coming to the sentence aspect, during the course of hearing of the appeal, it is submit- ted by the learned counsel for the appellant/accused that he and the complainant have compromised the matter outside the court and prayed to take lenient view in imposing punishment. The com- plainant who was also present in the court conceded for the same. However, Counsel for both parties have submitted the arguments. Coming to the sentence aspect, the trial court sen- tenced the appellant/accused to undergo R.I for one year and to pay compensation of Rs.1,50,000/-. In view of the above submissions made by both counsels, I am of the considered opinion that the justice would suffice, if the sentence of imprisonment is modified and converted into fine. I answered the points accordingly.

18. In the result, the appeal is dismissed, confirming the conviction imposed by the learned Judicial Magistrate of the I Class, (Special Mobile Court,) Vizianagaram in C.C.No. 130/2010

dt. 25.6.2012 for the offence punishable under section 138 N.I.Act, against the appellant/accused.

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However, the sentence of imprisonment i.e.., Rigorous imprisonment for a period of one year is modi- fied and converted into fine of Rs.1,000/-. The appellant is directed to pay the fine amount of

Rs.1,000/- imposed by this court. Coming to the compensation of Rs.1,50,000/- imposed by the trial court as the accused has already paid the cheque amount to the complainant before this Court, hence, the same is set aside accordingly. The accused/appellant is directed to execute a bond for

Rs.10,000/- under section 437-A Cr.P.C.

Dictated to the Personal Assistant, transcribed by her corrected and pronounced by me

in open court on this the 26th day of November, 2014.

Sd/- M.G.Priyadarshini

I ADDITIONAL SESSIONS JUDGE,

VIZIANAGARAM.

Copy to the Registrar (Judicial) High Court of Andhra Pradesh, Hyderabad.

Copy to the Judl. Magistrate of I Class (Spl.Mobile Court), Kothavalasa along with lower court record.

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IN THE COURT OF THE I ADDL.DISTRICT AND SESSIONS JUDGE;VIZIANAGARAM

Present:- Smt. M.G.Priyadarshini, I Addl.District and sessions Judge

Wednesday, this the 26th day of November, 2014.

CRIMINAL APPEAL NO.10 of 2013

From what court the appeal Court of the Assistant Sessions Judge, is preferred Vizianagaram No.of the case in that court S.C.No.4/2010 Name and description of theKunchangi Appal Raju, s/o late Krishna, Appellant35 years, auto driver, Sarika Village, Vizianagaram Mandal and District.

Name and description of the State of A.P. reptd by the Public respondentsProsecutor, Vizianagaram.

Sentence and Law under whichThe accused is convicted u/Sec.235 (2) the appellant is convicted. Cr.P.C. and sentenced to suffer R.I. for a period of two years and to pay a fine of Rs.100/- i.d.s.i. for one week, for the offence u/Sec.498-A IPC, and also sentenced to suffer R.I. for a period of two years, for the offence under Section 324 IPC, both the sentences shall run concurrently. The remand period undergone by the accused from 25.11.2009 to 4.1.2010 shall be given set off under Section 428 (2) Cr.P.C.

Whether confirmed, modified REVERSED or The appeal is allowed setting aside reversed and if modified, the the conviction and sentenced modification. imposed by the learned Assistant

Sessions Judge, Vizianagaram in

SessionsCaseNo.4/2010

dt.24.12.2012andthe appellant/Accused is acquitted under Section 235 (1) Cr.P.C., for the offence under Sections 498-A and 324 IPC. The Fine amount, if any, paid shall be refunded to him, after the expiry of appeal time. Theappellant/accused shall execute a bond for Rs.10,000/- (Rupees Ten Thousand only) under Sec.437-A Cr.P.C. Date of: Presentation26.06.2012 Filing26.06.2012 Notice issued by court to 26.06.2012 appear Bail bond if appellant have On bail been Let out on bail. Appellant ordered to appear 24.07.2012 Hearing 21.11.2014 Judgment26.11.2014 2Crl.Appeal No.10/2013

This appeal coming on 21.11.2014 for final hearing before me, upon perusing the petition of appeal and the record of the evidence and proceedings and upon duly considering the same and after hearing Sri

Ch.Rambabu, Advocate for the appellant/accused and of the Addl. Public

Prosecutor for the respondent-State, I do adjudge and pass the following: -

J U D G M E N T

This Criminal Appeal is filed by the appellant/accused against the

Calendar and Judgment dated 24.12.2012 in Sessions Case No. 4/2010 whereby the learned Assistant Sessions Judge, Vizianagaram convicted the appellant/accused for the offence punishable under sections 498-A and 324 of IPC and sentenced him to suffer rigorous imprisonment for a period of two years and to pay a fine of Rs.100/- for the offence under section 498-A

IPC and in default of payment of fine to suffer simple imprisonment for one week and also sentenced to suffer rigorous imprisonment for a period of two years for the offence under section 324 of IPC, both the sentences imposed against the accused shall run concurrently and the remand period undergone by the accused from 25.11.2009 to 4.1.2010 shall be given set off under section 428(2) Cr.P.C. and M.Os.1 to 3 and the unmarked property if any shall be destroyed after appeal time is over.

The appellant will be referred to as the accused hereinafter.

2.The brief facts of the case, as set out in the charge sheet, are as follows:-

The marriage of K. Krishnaveni-L.W.1(victim) was performed with accused on 12.8.2006 and they lived together and lead happy martial life and during their wedlock they were blessed with female child and subsequently the accused starting suspecting the character of victim and used to harass her and that the defacto complainant left the house and went to her parents house and living with them at Anandapuram. On 5.11.2009 at the intervention of elders the defacto complainant was brought to Sarika village but the accused continued the harassment. While so, on 24.11.2009 at about 8 a.m., when the victim was cooking food in the house 3Crl.Appeal No.10/2013 at Sarika village, the accused came there and asked her to prepare omelette on that she replied to wait till rise boils, then the accused kicked PW1 and pushed her over the burning oven and poured kerosene on her and set fire, due to which, her polyster sari got burnt and the accused closed the doors of the house and kept cot and chairs across the door as barcade and abused her in filthy language. The defacto complainant raised cries and on that LW.2 K. Yerukamma came there and Gurrapu Eswararao @ Eesu(LW3) rushed to the spot, pushed the doors and rescued the defacto complainant and she received injuries on her chest, chin and the same was witnessed by

Bagga Pydiraju(LW4), Gurrapu Appanna(LW5) and Sutti Pydithalli (LW6) and other witnesses and shifted the injured/victim to the Government hospital,

Vizianagaram, for treatment with the assistance of LW.2 K. Yerukamma came there and Gurrapu Eswararao @ Eesu(LW3) and on receipt of medical intimation L.W.12 K. Lakshmanarao HC 597, I/c Police out post,, Government

Hospital, Vizianagaram visited the Government Hospital, Vizianagaram and recorded the statement of victim and forwarded the same to Vizianagaram

Rural Police Station for taking further action. Based on the medical intimation and on the statement of victim L.W.13 B. Malleswararao

H.C.480, Vizianagaram Rural Police Station, registered a case in crime No.

145/2009 for the offence under section 498-A and 307 IPC and investigated into the same and during investigation visited the scene of offence, observed the same, seized the material objects and examined the witnesses and recorded their detailed statements and received wound certificate with an opinion that the defacto complainant has received simple injuries of 10% burns and after completion of investigation filed charge sheet against the accused.

3.After appearance of the accused, before the learned

Additional Judicial Magistrate of I Class, Vizianagaram, and after hearing the

Adld.P.P., and accused the case was taken on file for the offence, under section 498-A and 307 IPC. Since the offence under section 397 IPC is exclusively triable by the court of Sessions, the case was committed to the 4Crl.Appeal No.10/2013

District Court, Vizianagaram, as per his order dt.23.12.2009, in PRC

No.66/2009, and after receipt of record the District Court,Vizianagram, numbered the same as Sessions case No.4/2010 and made over the same to the Assistant Sessions Judge’s Court,Vizianagaram, for disposal according

Law.

4 After receipt of said record, the learned Assistant Sessions

Judge, Vizianagaram had taken the case on file under Sec.498-A and 307 IPC

against the accused. The accused was examined u/s. 228(2) of Cr.P.C., and charge under sections 498-A and 307 of IPC have been framed against the accused, read over and explained to him for which the accused denied the charges. During the trial, to prove the case of the Prosecution, the prosecution examined P.W.1 the complainant, P.Ws.2 and 3 are neighbours of PW1 and accused, P.W.4 is Village Revenue Officer, Sarika village, P.W.5 is

Assistant Professor, K.G.Hospital, Visakhapatnam, and P.W.6 is retired ASI of

Police, and got marked Ex.P.1 signature of PW1 on the statement of PW1,

Ex.P.2 is scene observation report, Ex.P.3 is wo9und certificate of PW1,

Ex.P.4 is medical intimation, Ex.P.5 is statement of PW1 given to police,

Ex.P.6 is FIR and Ex.P.7 is rough sketch of the scene of offence besides marking M.Os.1 to 3 i.e., one saree, one kerosene lamp and match box. No oral or documentary evidence was adduced on behalf of the accused.

5.On consideration of the oral and documentary evidence, the learned Assistant Sessions Judge, Vizianagaram found the accused guilty for the offence u/s.498-A IPC, and as the ingredients of section 307 IPC are not attracts the accused was found guilty for the offence under section 324 of IPC instead of section 307 IPC and convicted and sentenced him for the offence punishable under section 498-A and 324 of IPC., as aforesaid.

6.Aggrieved by the conviction and sentence, the appellant/accused preferred the present appeal, assailing the judgment under appeal among other grounds contending that the trial court has not properly appreciated the evidence on record and arrived at a wrong 5Crl.Appeal No.10/2013 conclusion which resulted in miscarriage of justice with the following grounds of appeal.

(1)The Court below failed to appreciate the evidence P.W.1 who did not state anything against the accused with regard to the harassment made by accused against her for the offence under section 498-

A IPC and the evidence of P.W.1 run contra to the version of P.w.2 and 3 as such, the finding of the trial court under section 324 of IPC is not proved, hence, the conviction and sentence passed by the learned Assistant

Sessions Judge, Vizianagaram is not sustainable under law and liable to be

set aside.

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

8.Now the points for consideration is

i) Whether there are any grounds to interfere with the judgment of conviction passed by the learned Assistant Sessions Judge, Vizianagaram, in C.C.4/2012 ,dt. 24.12.2012?

POINT 9.:-

The Learned Counsel for the appellant strenuously argued in support of various grounds raised by him and mainly contended that even though there are no sustainable grounds made out under Sec.498-

A IPC, and section 324 of IPC the Lower Court has convicted and sentenced the appellant/accused based on the evidence of interested witnesses and that the Lower Court hasalso failed to appreciate the evidence of the witnesses, therefore the conviction and sentence passed by the Lower Court is not sustainable and hence prayed to set aside the same and to acquit the appellant/accused.

10.Per contra, the learned Addl.P.P., submitted that the findings of the Learned trial judge are proper and has rightly appreciated the evidence of the Prosecution witnesses, hence cannot be interfered with.

Thus contending prayed for dismissal of the appeal.

11.At the outset, this Court is of the firm opinion that

before deciding the correctness or otherwise of the findings of the learned

6Crl.Appeal No.10/2013 trial, it is required to see whether even if the allegations in Ex.P.1 report and the evidence of the Prosecution is accepted, the same would attract the ingredients of Sec.498-A IPC, unless the evidence let in by the Prosecution attracts the ingredients envisaged under Sec.498-A IPC, the accused cannot be convicted. For better appreciation, Sec.498-A IPC is extracted here under:

Sec.498-A IPC: Husband or relative of husband of a woman subjecting her to cruelty:- “Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.”

For the purpose of this section, “cruelty” means:

(1) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical )of the woman or (2) harassment of the woman where such harassment is with a view to coercing her to any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure of her or any person related to her to meet such demand.

12.In view of the same, this Court has perused the entire evidence of the Prosecution witnesses., which discloses that the defacto compalainnt herself was examined as P.w.1, got examined her neighbours as

P.Ws.2 and 3 and P.W.4 is VRO and P.ws.5andf 6 are investigating officers in this case.

13P.W.1 in her evidence deposed that her marriage was performed with accused on 12.8.2006 and they lived together and lead happy martial life and during their wedlock they were blessed with female child and subsequently the accused starting suspecting her character and used to harass her and that she left the house and went to her parents house and living with them at Anandapuram. She further deposed that on 7Crl.Appeal No.10/2013 5.11.2009 at the intervention of elders the defacto complainant was brought to Sarika village but the accused continued the harassment and on 24.11.2009 at about 8 a.m., when she was cooking food in the house at

Sarika village, the accused came there and asked her to prepare omelette on that she replied to wait till rice boils, then the accused kicked PW1 and pushed her over the burning over and poured kerosene on her and set fire, due to which, she received burn injuries and on hearing her cries, neighbours came and admitted her in the hospital.

14P.Ws.2 and 3 deposed that on the date of incident the mother of accused called them and informed that smoke is coming out of the house and also heard the cries from the accused house and they found the doors were closed and on that they break open the doors and entered into the house, found P.W.1 with fire and burns and saw that the accused pour water on P.W.1 and shifted P.W.1 to the hospital in

Ambulanace. P.W.4 is village revenue officer deposed about the visiting the scene of offence, observed the scene, seizure of M.Os.1 to 3, preparing observation report, etc., facts.

15.P.W.5 is Doctor who treated P.W.1 gave opinion that the injuries sustained by P,.W.1 are simple in nature and burns on the chest is 10%. P.W.6 ASI deposed about receiving of medical intimation, recording statement of PW1 and registering of the case in crime No.

149/2009 for the offence under sections 498-A and 307 IPC. According to

P.W.6, that on receipt of Ex.P.4 medical intimation and statement of PW1, he registered case and investigated into the case and during investigation he visited the scene of offence in the presence of P.W.4 and another and prepared rough sketch of the scene of offence, arrested the accused and produced before the Court for judicial custody and obtained the wound certificate, however the S.I. of Police, filed charge sheet.

16.A perusal of the evidence clearly discloses that P.W.2 and 3 are the independent witnesses and supported the case of P.W.1 and corroborated with her evidence, further the medical report also discloses 8Crl.Appeal No.10/2013 that PW1 has sustained 10% burn injuries and as per the evidence of P.Ws.2 and 3, the doors were locked from inside and they broke open the doors and entered into house and rescued PW1. However, the learned counsel for appellant submitted that the accused did not commit any offence and even as per the evidence of independent witnesses, P.Ws.2 and 3, they saw the accused pouring water on P.W.1 to rescue P.W.1 and shifted PW1 to the hospital and there is no intention to kill P.W.1 and in fact the accused rescued PW1 from the fire accident.

17.It is pertinent to note here that P.W.1 appeared before this

Court and submitted that herself and accused are living together and prayed to allow the appeal. However, considering the fact that there are no ingredients attracted under section 498-A IPC and there is no whisper of dowry harassment or cruelty meted out by accused either by PW1 or P.Ws.2 and 3, this Court is of the opinion that the accused did not harass her for

additional dowry and the prosecution failed to prove the ingredients under

section 498-A IPC against the accused. When once the basic ingredients of the offence punishable under Sec.498-A IPC are not proved, the conviction of the accused for the offence punishable under Sec.498-A IPC is un-sustainable and there is no whisper of dowry harassment meted out by accused in the evidence of P.W.1 or P.ws.2 and 3. Apart from that P.ws.2 and 3 who are neighbours deposed that they saw the accused pouring water on PW1 gives an inference that he is trying to rescue PW1 from fire accident. Apart from that as per the evidence of P.w.5 the injuries sustained by P.W.1 is simple in nature and he has not mentioned the duration of injury found on P.W.1, as such, the learned trial judge found guilty of the accused for the offence under section 324 of IPC instead of 307 of IPC, for the reason if the accused had intention to kill his wife, he would not have rescue nor poured water on

PW1 to put off the fire. Under these circumstances, considering the facts and circumstances of the case, this Court is of the considered opinion that it is a fit case for giving benefit of doubt to the accused. Apart from that considering the fact that P.W.1 and accused are living together, the 9Crl.Appeal No.10/2013 conviction and sentence passed by the learned Assistant Sessions Judge,

Vizianagaram are liable to be set aside and accordingly, the same is set aside.

18. In the result, the appeal is allowed setting aside the conviction and sentenced imposed by the learned Assistant Sessions Judge,

Vizianagaram in Sessions Case No. 4/2010 dt.24.12.2012 and the appellant/Accused is acquitted under Section 235 (1) Cr.P.C., for the offence under Sections 498-A and 324 IPC. The Fine amount, if any, paid shall be refunded to him, after the expiry of appeal time.

The appellant/accused shall execute a bond for Rs.10,000/- (Rupees Ten Thousand only) under Sec.437-A Cr.P.C.

Dictated to the Personal Assistant, transcribed by her

corrected and pronounced by me in open court on this the 26th day of November, 2014. s

Sd/- M.G.Priyadarshini

I ADDITIONAL SESSIONS JUDGE,

VIZIANAGARAM.

Copy to the Registrar (Judicial) High Court of Andhra Pradesh, Hyderabad.

Copy to the Assistant Sessions Judge, Vizianagaram, along with lower court record.

IN THE COURT OF THE I ADDL.DISTRICT AND SESSIONS JUDGE;VIZIANA-

GARAM

Present:- Smt. M.G.Priyadarshini, I Addl.District and sessions Judge Tuesday, this the 15th day of April, 2014. CRIMINAL APPEAL NO. 44 of 2012 From what court the appeal Court of the Spl. Judicial Magistrate of is preferred the First Class (Excise), Vizianagaram

No.of the case in that court C.C.1064/2008

Name and description of theBendi Jaya Sankara Rao, s/o late AppellantAnanda Rao, 34 years, wardboy, U.P.H. C. Kurupak, Vizianagaram Dis- trict, present at D.No.12-18-15/1, Phoolbagh Road, Opp Sri Kusuma Ha- ranadha Kshetram, Vizianagaram.

Name and description of the1. State of Andhra Pradesh, reptd by respondents Addl. Public Prosecutor, Viziana- garam.

2. P. Suryanarayana, s/o late Atchayya, 49 years, r/o Plot nO.39, Vijaya Laxmi Nagar, Vizianagaram.

Sentence and Law under The accused is sentenced to undergo which the appellant is con-S.I for SIX MONTHS and to pay a com- victed. pensation of Rs.1,000/- i.d.s.i. for one month, for the offence u/s.138 of N.I.Act.

Whether confirmed, modi-REVERSED fied or The appeal is allowed setting aside reversed and if modified, thethe conviction and sentence imposed modification. by the learned Spl. Judicial Magistrate of the I Class (Excise), Vizianagaram, againsttheaccusedin C.C.No.1064/2008 dated 7.2.2012. The accused is acquitted under Sec. 255(1) Cr.P.C, for the offence punish- able u/sec.138 of the N.I.Act. The fine amount paid by him, if any, shall be refunded to him, after expiry of ap- peal time. The accused/appellant is directed to execute a bond for Rs.10,000/- u/sec.437-A Cr.P.C. Date of: Presentation07.03.2012

Filing07.03.2012

Notice issued by court to ap-07.03.2012 pear 2Crl.Appeal No.44/2012

Bail bond if appellant have On bail been Let out on bail. Appellant ordered to appear 09.04.2012

Hearing 11.04.2014 Judgment15.05.2014 This appeal coming on 11-04-2014 for final hearing before me, upon perusing the petition of appeal and the record of the evidence and pro- ceedings and upon duly considering the same and after hearing Sri A.Surya- narayana Murthy and Sri A.Vasudev, Advocates for the appellant and of the

Addl. Public Prosecutor for the 1st respondent-State and Sri K.Krishna Murthy,

Advocate for 2nd respondent, I do adjudge and pass the following: -

J U D G M E N T

1.This Criminal Appeal is filed by the appellant/accused against the calendar and judgment dated 7.2.2012 in C.C.No.1064/2008 whereby and whereunder the learned Spl. Judicial Magistrate of the I Class (Excise), Vizianagaram convicted the appellant/accused for the offence pun- ishable u/sec.138 of the Negotiable Instruments Act (for short “N.I.Act”) and sentenced him to undergo Simple Imprisonment for a period of six months and to pay fine of Rs.1,000/- in default of payment of fine he shall suffer S.I for one month.

The appellant will be referred to as the accused here- inafter.

2.The brief facts of the case, as set out in the complaint, are as follows:-

The accused had borrowed a sum of Rs.1,00,000/- from the complainant on 4.10.2005 and executed a promissory note, agree- ing to repay the same with interest @ 36% p.a., on yearly rests (compound interest) and committed default in payment of the said amount. After sev- eral demands, the accused issued a cheque bearing No.421904 dated 20.5.2008 for Rs.87,000/- drawn on State Bank of India, Bazaar Branch,

Vizianagaram, in favour of the complainant towards discharge of interest 3Crl.Appeal No.44/2012 only, and the complainant presented the said cheque through his banker viz., Canara Bank, Vizianagaram, but, the said cheque was returned unpaid on 21.5.2008, with an endorsement, “FUNDS INSUFFICIENT”. The com- plainant has informed the same to the accused, who requested the com- plainant to re-present the cheque in the month of July 2007, on that the com- plainant again presented the cheque for collection, however, it was returned by the banker of the accused on 21.7.2008, with an endorsement “FUNDS IN-

SUFFICIENT”. Thereupon, the complainant got issued legal notices to the accused, on 4.8.2008, to his residential and office addresses, demanding for repayment of the debt, however, those notices were returned with an en- dorsement that the accused was on “leave for more than seven days” and the “accused is out of station for four days” “addressee not available re- turned to sender” accordingly, they were returned to the complainant on 12.8.2008. The accused, by managing the postal authorities evaded to re- ceive the notices, which were sent to the correct address, as such the statu- tory notices are deemed to have been served on the accused, under law. As the accused failed in complying with the demand of the complainant, he pre- sented the complaint before the court, against the accused, for the offence punishable under sec.138 of N.I.Act.

3.On filing the complaint, at the first instance, the learned

Addl.Judl.Magistrate of the I Class, Vizianagaram has taken the case on file under Sec.138 r/w 142 of the N.I.Act against the accused and numbered the complaint as C.C.No.582/2008. Later, on the orders of the learned Sessions

Judge, Vizianagaram, the said case was transferred to the Court of Special Ju-

dicial Magistrate of the I Class (Excise) and renumbered as

C.C.No.1064/2008.

4.During the trial, before the trial court, to prove his case, the complainant himself got examined as P.W.1 and got examined the Bank 4Crl.Appeal No.44/2012

Manager as P.W.2 and got marked Exs.P.1 to P.10 documents. The accused himself was examined as D.W.1 and no documents were marked.

5.On consideration of the oral and documentary evidence, the learned Magistrate found the accused guilty for the offence u/s.138 of the N.I.Act convicted and sentenced him as aforesaid.

6.Aggrieved by the conviction and sentence, the appellant/ accused preferred the present appeal, assailing the judgment under appeal among other grounds contending that the trial court has not properly appre- ciated the evidence on record and arrived at a wrong conclusion which re- sulted in miscarriage of justice. It is mainly urged by the appellant/accused that the trial court should have seen that the statutory notice said to have been issued to the appellant, was not served on the appellant and when the 2nd respondent (complainant) gave a wrong address, which is not mentioned in the promissory note and in the absence of the same, the trial court should have drawn adverse inference that there is no service of statutory notice.

Further, the trial court should have seen that when the complainant has cat- egorically stated that Ex.P.1 cheque contains different hand writings as re- gards date, month and year, as such it ought to have held that the com- plainant conveniently fabricated Ex.P.1 and no case has been made out against the accused and it ought to have acquitted the accused.

7.Heard both sides.

8.Now the point for consideration is “Whether there are any grounds to interfere with the judgment of conviction passed by the trial court in C.C.No.1064/2008 dated 7.2.2012”?

9.P O I N T :- (i)The Learned Trial Judge having found that the accused borrowed amount from the complainant by executing documents and in discharge of the said amount, he issued cheque, but the said cheque was dishonoured due to insufficient of funds in his account, con- 5Crl.Appeal No.44/2012 victed the accused. It is further observed in the judgment that the com- plainant issued legal notices to the accused in compliance of the provisions of the Act, that notices were returned unserved with endorsements as “ad- dressee out of station for four days” and “addressee is on leave for seven days”, as such it is establishing service held sufficient. It is further observed that the accused, failed to comply with the demand of the complainant and ultimately held that the accused is guilty of the offence punishable u/sec.138 of the N.I.Act.

(ii)This being a case under sec.138 of N.I.Act , the initial burden to prove that the accused has issued the cheque in discharge of the said legally enforceable debt is on the complainant, once the com- plainant discharges the initial burden, then the onus shifts on to the accused to rebut the same. The learned Trial Judge having come to the opinion that the accused failed to rebut the presumption, convicted the accused.

(iii)Therefore, in light of the findings of the Learned

Trial Judge and various grounds raised in the appeal by the appellant, this

Court is required to see whether Ex.P.1 cheque was issued by the accused in discharge of the liability of Rs.1,00,000/- allegedly borrowed on 4.10.2005, by the accused, from the complainant. According to the complainant, on 4.10.2005, the accused borrowed an amount of Rs.1,00,000/- and executed promissory note, agreeing to repay the same with interest @ 36% p.a., on yearly rests (compound interest) and committed default in payment of the said amount. After several demands, the accused issued cheque for

Rs.87,000/- on 20.5.2008 drawn on State Bank of India, Bazaar Branch,

Vizianagaram, towards discharge of interest only, and the same was pre- sented by him in Canara Bank, Vizianagaram and it was dishonoured due to insufficient funds on 21.5.2008. The complainant, informed the same to the accused, who, in turn, requested the complainant to present the cheque in 6Crl.Appeal No.44/2012 the month of July 2007, by which time, he would pool up the funds, believing the words of the accused, the complainant again presented the cheque, but, it was returned on 19.7.2008 with endorsement as “funds insufficient”. To prove the case, the complainant got himself examined as P.W.1 and got marked Exs.P.1 to P.10. As can be seen from the evidence of P.W.1, he stated that the accused has issued Ex.P.1 cheque, towards payment of inter- est only. However, in his cross-examination, at one stage, he states that he filled up Ex.P.1 and at another stage, he states that his son has filled up

Ex.P.1 and the amount was filled up by the accused. It appears that P.W.1 is not specific as to who filled up Ex.P.1 cheque.

(iv) Further, as per the averments of the complaint, when Ex.P.1 was returned for the first time on 21.5.2008, and when the said fact was informed to the accused, he requested P.W.1 to present the cheque in the month of July 2007. But, according to P.W.1, the cheque was returned for the second time and his banker intimated the said fact to him on 21.7.2008. P.W.1 admitted in his cross-examination that the bank seal on

Ex.P.5 do not bear the date, so also on Ex.P.3. So, as seen from the aver- ments of the complainant coupled with the evidence of P.W.1 in his cross-ex- amination, the accused requested him to present the cheque in the month of

July 2007, whereas Ex.P.1 was returned to P.W.1 on 21.7.2008. It is not known whether the said cheque was retained with the banker and returned after one year to P.W.1. If it a typographical error, the complainant has to take steps for rectification of the same. But, according to him, he got men- tioned the said fact in his notice sent to the accused. P.W.1 denied the sug- gestion that the accused worked under him in the year 2005, and he has ob- tained cheque from the accused as security and that as the accused stopped the job, he had filed the case against the accused on the basis of the cheque.

In view of the above suggestion, a genuine doubt arises in the mind of the 7Crl.Appeal No.44/2012 court that Ex.P.1 cheque was not issued in discharge of legally enforceable debt.

(v) It is mainly contended by the learned counsel for the accused that there is no valid service of statutory notice on the accused as it was not sent ton him to the address mentioned in Ex.P.10 promissory note. According to P.W.1, he got issued Exs.P.6 and P.8 notices to the office and residential addresses of the accused, but, they were returned, with en- dorsements as “accused was on leave for four days and the addressee is on leave for seven days”. As seen from Ex.P.10 the address of the accused is mentioned as ‘Bendi Jaya Sankararao s/o. late Anandarao, Kothapeta,

Gollaveedhi, Vizianagaram”, Ex.P.6 was addressed to B.Jaya Sankararao,

Ward Boy, UPHC, Kurupam, and Ex.P.8 was addressed to R/o. door No. 12-18- 15/1, Poolbagh road, Opp. Sri Kusuma Haranadha Kshetram, Vizianagaram”.

But, none of the notices were sent to the address mentioned in Ex.P.10.

P.W.1 offerred his explanation for sending Exs.P.6 and P.8 that as the ac- cused changed his residence, he sent the notices to the place where the ac- cused was working and residing. Further, P.W.1 admitted in his cross-exami- nation that he has sent notices 5 or 6 times, but, he filed only Exs.P.6 and

P.8 into court. Except stating that he has not filed any scrap of paper to show that he sent notice to the accused, to the address mentioned in

Ex.P.10. Therefore, it can be said that there is no valid service of statutory notice to the accused, by the complainant, which is a mandatory provision u/sec.138 of the N.I.Act. When once the complainant failed to comply with the mandatory provisions under Sec.138 of the Act, he cannot file any com- plaint against the accused.

(vi)Apart from the above, a perusal of the trial court judgment discloses that in para No.2 it is stated that “the accused and the complainant entered into business agreement and accordingly the com- 8Crl.Appeal No.44/2012 plainant invested Rs.One lakh”, which is not at all the averment of the com- plainant, raises doubt in the mind of this court that as there are discrepan- cies in the plea of the complainant, and the transaction of the amount is doubtful. Further, the trial court without considering the material on record, went wrong in finding that the service of notice on the accused is proved.

Therefore, on careful analysis of the entire oral and documentary evidence, this Court is of the considered opinion that the findings of the learned trial

Judge regarding the guilt of the accused are not based on proper apprecia-

tion.

(vii)It is pertinent to state that during the course of hearing, the learned counsels for the appellant and the respondent/com- plainant submitted that the appellant and the complainant have entered into compromise and in view of the compromise, a lenient view may be taken by setting aside the sentence imposed by the trial court. The complainant and his counsel appeared before the court and submitted that he and the ac- cused entered into compromise and hence, he has no objection, if the ac- cused is acquitted.

(viii) Hence, in view of the above, the appeal is liable to be allowed, accordingly, the same is allowed, setting aside the conviction and sentence awarded by the learned Trial Judge.

10. IN THE RESULT, the appeal is allowed setting aside the conviction and sentence imposed by the learned Spl. Judicial Magistrate of the I Class (Excise), Vizianagaram, against the accused in C.C.No.1064/2008

dated 7.2.2012. The accused is acquitted under Sec. 255(1) Cr.P.C, for the

offence punishable u/sec.138 of the N.I.Act. The fine amount paid by him, if any, shall be refunded to him, after expiry of appeal time. The accused/ap- pellant is directed to execute a bond for Rs.10,000/- u/sec.437-A Cr.P.C.

Dictated to the Personal Assistant, transcribed by him

corrected and pronounced by me in open court on this the 15th day of April, 2014.

Sd/- M.G.Priyadarshini

I ADDITIONAL SESSIONS JUDGE,

VIZIANAGARAM.

9Crl.Appeal No.44/2012

Copy to the Registrar (Judicial) High Court of Andhra Pradesh, Hyderabad.

Copy to the Spl. Judl. Magistrate of I Class (Excise), Vizianagaram along with lower court record.

1

IN THE MOTOR ACCIDENTS CLAIMS TRIBUNAL (DISTRICT JUDGE),

VIZIANAGARAM

Present: Sri M. Lakshminarayana, Chairman (District Judge), Motor Accidents Claims Tribunal, Vizianagaram.

Thursday, the 15th day of December, 2016

M.V.O.P.No.398/2015

Between:

Adapaka Venkata Appa Rao, S/o Pydithalli, Hindu, Aged about 40 years, Residing at Kamavaram Village, Poosapatirega Mandal, Vizianagaram District. …Petitioner. A n d:

1. Pothina Vasantha Rao, S/o Janardhana Rao, Hindu, Aged about 23 years, Motorcycle driver-cum-owner of bearing No.AP 30 R 7028, Residing at D.No.2-14, Vovvupeta Village, Burja Mandal, Srikakulam District.

2. Bajaj Allianz General Insurance Company Ltd., represented by the Divisional Manager, Visakhapatnam. … Respondents.

This petition coming on 05.12.2016 for final hearing before me in the presence of Sri G.Rama Mohana Rao, Sri G.Appa Rao and Sri K.Sri Hari Rao,

Advocates for the Petitioner, and of Sri D.Sivaram, Advocate for the 2nd respondent, and respondent No.1 having remained exparte, and having stood over for consideration till this day, this Tribunal passed the following:-

O R D E R

1.This petition is filed U/s.166 of the M.V. Act claiming compensation of Rs.2,00,000/- for the injuries sustained by the petitioner in a motor vehicle accident.

2.The brief facts of the petitioner’s case are that:

On 07.08.2014 at about 8-30 p.m., After the petitioner crossed the

N.H.16 road near Kandivalasa, the 1st respondent drove his Motorcycle bearing

No.AP 30 R 7028 in high speed and also in a rash and negligent manner, dashed the petitioner, as a result of which the petitioner fell down on the road and sustained severe injuries. Immediately, the petitioner was shifted to Sri Sai Super

Specialty Hospital, Vizianagaram, where he underwent treatment for some time.

The petitioner is still taking medicines. It is also further case of the petitioner that 2 M.A.C.T., (Dist Court), Vizianagaram. M.V.O.P.398/2015 (Injuries) he has been working in Wines Shop and earning Rs.5,000/- per month at the time of the accident, but due to the injuries, now he is unable to attend any work.

Hence, the petitioner sought for compensation of Rs.2,00,000/- against the driver- cum-owner and insurer of the motorcycle.

3.The 2nd respondent Insurance Company filed I.A.No.1623/2016

U/s.170 of M.V. Act, seeking permission of the Court to take all the defences that are available to the owner-cum-driver of the vehicle. The permission was accordingly granted.

4.The 1st respondent did not put up any contest and he was remained exparte.

5. The 2nd respondent filed the written statement denying the allegations in the petition. The 2nd respondent put the petitioner to strict proof of the accident involving the vehicle bearing No.AP 30 R 7028 and that the said vehicle is covered with a valid Policy issued by this respondent. The petitioner is also put to strict proof of the rash and negligent driving of the Motorcycle by the 1st respondent and that the 1st respondent was having valid driving license at the time of the accident.

The petitioner is also put to strict proof of the injuries sustained by him in the accident and his age and loss of income and the medical expenditure spent by him for treatment. The 2nd respondent further submitted that as per the Police record, the accident took place on 07.08.2014, whereas the complaint was lodged with the

Police on 12.08.2014 falsely planting the vehicle bearing No.AP 30 R 7028 with the connivance of the 1st respondent. The petitioner did not explain the reason for abnormal delay in lodging the F.I.R. According to the 2nd respondent, the petitioner in collusion with the Police, planted the vehicle bearing No.AP 30 R 7028. The compensation claimed by the petitioner is highly excessive. Hence, the 2nd respondent urged for dismissal of the petition.

6.On consideration of the pleadings of the both parties, the following

Issues are settled for trial :

3 M.A.C.T., (Dist Court), Vizianagaram. M.V.O.P.398/2015 (Injuries)

1.Whether the accident took place due to negligence of 1st respondent driver of Motorcycle bearing

No.AP 30 R 7028 ?

2.Whether the petitioner is entitled for compensation and, if so, at what quantum ?

3.To what relief ?

7.On behalf of the petitioner, the petitioner examined himself as P.W.1 and he reiterated what all stated by him in the petition. Dr.A.Srirama Murthy, who treated the petitioner is examined as P.W.2. On behalf of the respondents, the

Executive of the 2nd respondent Insurance Company is examined as R.W.1. The petitioner has marked as Exs.A.1 to A.7 and Ex.X.1. The respondents have marked Exs.B.1 and B.2.

8.Issue No.1:- The injured examined himself as P.W.1 and with regard to the accident, he stated that on 07.08.2014 at about 8-30 p.m., after crossing the N.H.16 road near Kandivalasa, he was standing by the side of the road, at that time, the 1st respondent drove his Motorcycle bearing No.AP 30 R 7028 in a high speed and also in a rash and negligent manner and dashed against the petitioner, as a result of which the petitioner fell down and sustained injuries.

Thus, according to P.W.1, the accident was occurred only due to the rash and negligent driving of the Motorcycle by the 1st respondent. In corroboration to his oral assertion, the petitioner filed copy of the F.I.R., in Cr.No.152/2014 of

Pusapatirega Police Station, which is marked as Ex.A.1. Ex.A.3 is the M.V.

Inspector’s Certificate to the effect that there is no mechanical defect in the offending vehicle. Ex.A.4 is the attested copy of the charge sheet filed by the

Police which disclosed that the accident was occurred on account of the rash and negligent driving of the 1st respondent.

9.During the cross-examination of P.W.1, it was elicited that on the date of the admission in the Hospital itself, the Police recorded his statement. He denied the suggestion that he was not hit by the Motorcycle bearing No. AP 30 R 7028 and as such he gave report to the Police five days after the alleged accident 4 M.A.C.T., (Dist Court), Vizianagaram. M.V.O.P.398/2015 (Injuries) by falsely planting the vehicle bearing No. AP 30 R 7028. Thus, except giving suggestion to the witness, nothing was elicited in the cross-examination of P.W.1 to show that the accident was occurred not due to the negligence of the 1st respondent.

10.It is true, there is a delay in lodging the F.I.R. Ex.A.1 is the copy of the F.I.R. As seen from Ex.A.1 copy of F.I.R., the accident was occurred on 07.08.2014 at 8-30 p.m. Whereas, the F.I.R., was given to the Police at 6-00 p.m., on 12.08.2014. Thus, there was a delay of nearly four days. Simply because there was a delay of four days in lodging the F.I.R., we cannot jump to the conclusion that the F.I..R., was concocted and that the offending vehicle was planted taking advantage of lapse of time. The investigation conducted by the

Police does not disclose that the offending vehicle is not involved in the accident.

The respondents did not examine any witness to show that the offending vehicle did not involve in the accident. The 2nd respondent Insurance Company also did not give any complaint to the Police Officials stating that the local Police Officer colluded with the petitioner and got planted the offending vehicle. Therefore,

I am of the opinion that the evidence of P.W.1, who is the injured witness is acceptable and there is nothing on record to suggest that the offending vehicle was planted by the petitioner in collusion with the Police for the purpose of claiming compensation. Therefore, this Issue is accordingly answered in favour of the petitioner.

11.Issue No.2:- The petitioner has examined Dr.A.Sri Rama Murthy of

Sri Sai Super Specialty Hospital, Vizianagaram, as P.W.2. He testified that on 07.08.2014 the petitioner was admitted in the Hospital for fracture of both bones of left leg. The petitioner was operated and metal nail was kept inside the bone.

He was treated under Arogya Sree Scheme. Ex.X.1 is the case sheet maintained by their Hospital. Taking into consideration the above wound certificate and

Ex.X.1 case sheet, I am inclined to award a sum of Rs.40,000/- (Rupees Forty

Thousand only) towards fracture of both bones of the left leg and Rs.15,000/- 5 M.A.C.T., (Dist Court), Vizianagaram. M.V.O.P.398/2015 (Injuries) (Rupees Fifteen Thousand only) towards pain and suffering. The petitioner was treated under the Arogya Sree Scheme and he did not spend anything. So, the petitioner is not entitled for any medical expenditure. However, the petitioner is entitled forRs.2,000/- (Rupees Two Thousand only)towards transportation expenditure. As per the evidence of P.W.2, the petitioner is suffering with 20% disability and this percentage of the disability is given with reference to the particular limb. So, with reference to the entire body, the disability of the petitioner can be taken note of 10%. As per the case sheet, the petitioner is aged 47 years. So, as per the “Sarla Verma’s Case”, the appropriate multiplier for the age group between 46 to 50 is “13” (Thirteen).

The income of the petitioner can be notionally fixed at Rs.100/- per day, which comes to Rs.36,000/- per annum. So, the loss of income on account of 10% disability of the petitioner comes to Rs.36,000/- x 13 x 10/100 = Rs.46,800/- (Rupees Forty Six Thousand and Eight Hundred only).

In all, the petitioner is entitled to the following compensation:

Towards fracture of both bones of the left leg.Rs.40,000/- Towards Pain and Suffering.Rs.15,000/- Towards transportation expenditure.Rs.2,000/- Towards loss of income on account of 10% Rs.46,800/- disability of the petitioner. TOTALRs.1,03,800/- (Rupees One Lakh, Three Thousand and Eight Hundred only)

12. In a Case reported in: “Jaik Hussein V. Sabir and others”, 2015 (3) ALD 115 (Supreme Court of India) Division Bench, Wherein it is held that :

“As regard the rate of interest to be awarded on the compensation awarded in this appeal, we are of the view that the Tribunal and High court have erred in granting interest rate at only 7% p.a., and 8% p.a. respectively on the total compensation amount instead of 9% p.a. by applying the decision of this Court in Municipal Corporation of Delhi Vs. Association of Victims of Uphaar Tragedy, (2011) 14 SCC 481 = AIR 2012 SC 100. Accordingly we award the interest @ 9% p.a., on the compensation determined in the present appeal”.

6 M.A.C.T., (Dist Court), Vizianagaram. M.V.O.P.398/2015 (Injuries)

In view of principles laid down in the decision, it is a fit case to award the interest @ 9% p.a. Hence, the petitioner is entitled for interest @ 9% p.a. from the date of petition, till realization of the amount.

13.As Ex.B.1 policy is valid from 06.10.2013 to 05.10.2014 covering the period of accident, and covers the 3rd party risk, the 2nd respondent is liable to indemnify the 1st respondent. Accordingly, this issue is answered in favour of the petitioner.

14.Issue No.3 : To what relief?

In the result, the petition is partly allowed against the respondents granting a total compensation of Rs.1,03,800/- (Rupees One Lakh, Three

Thousand and Eight Hundred only), together with interest at 9% per annum from the date of petition till the date of realization.

The petitioner is also entitled for proportionate costs.

The respondents are directed to deposit the above said compensation amount into the Court within two months.

Out of the total compensation awarded, the petitioner is entitled to withdraw half of the award amount with accrued interest and costs, after the deposit is made and the remaining amount shall be kept in FIXED DEPOSIT for a period of TWO YEARS.

Advocate’s fee is fixed at Rs.1,000/-.

Dictated to the Stenographer Grade-I, transcribed by him, corrected and

pronounced by me in open Court, this the 15 th day of December, 2016.

Sd/-.M.Lakshminarayana

Chairman, Motor Accidents Claims Tribunal, Vizianagaram.

APPENDIX OF EVIDENCE

Witnesses Examined

For Petitioner: For Respondents:

P.W.1: Adapaka Venkatapparao. R.W.1:- S.Vasudeva Rao.

P.W.2: Dr.A.Sree Rama Murthy (Orthopedic Surgeon).

Exhibits Marked

For Petitioner:

7 M.A.C.T., (Dist Court), Vizianagaram. M.V.O.P.398/2015 (Injuries)

Ex.A.1: 12.08.2014 :Attested True copy of FIR in Crime No.152/2014 U/s.338 of IPC of Pusapatirega P.S.

Ex.A.2: 21.08.2014 :Attested True copy of wound certificate of the petitioner.

Ex.A.3: --:Attested true copy of M.V. Inspector’s report.

Ex.A.4: --:Attested true copy of charge sheet in Crime No.152/14 U/s.338 of IPC of Pusapatirega P.S.

Ex.A.5: :Discharge summary issued by Sri Sai Super Specialty Hospital, Vizianagaram.

Ex.A.6::Latest X-ray.

Ex.A.7::Disability Certificate of the petitioner.

Ex.X.1:--:Case Sheet maintained by Sri Sai Super Specialty Hospital, Vizianagaram.

For Respondents:

Ex.B.1:--:Copy of Insurance Policy.

Ex.B.2: 11.09.2015 :Office copy of Registered Letter, issued to 1st respondent with postal receipt.

Sd/-.M.Lakshminarayana

Chairman, Motor Accidents Claims Tribunal, Vizianagaram.

8 M.A.C.T., (Dist Court), Vizianagaram. M.V.O.P.398/2015 (Injuries)