M. Prameela Rani

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CC.No.812/2018

IN THE COURT OF THE II ADDITIONAL JUDICIAL I CLASS MAGISTRATE : ELURU

PRESENT : MS. M.PRAMEELA RANI II Additional Judicial Magistrate Of First Class, Eluru Monday, the 17th day of October, 2022.

C.C.No.812/2018

BETWEEN:

Chode Naga Koteswara Srinivas, S/o Krishna Murthy, Hindu, Male, Aged 52 Years, Business, R/o Dr.No.6B-4-2, Southern Street, Eluru. … Complainant. AND: Pilli Uma Devi, W/o Betala Koteswara Rao, Hindu, Female, Aged 55 Years, Addl. Director, Government Head Quarters Hospital, Eluru. … Accused.

This case is coming on 07.10.2022 for final hearing before me in the presence of Sri P.Naga Malleswara Rao, Advocate for the Complainant, and Sri N.Ramudu, Advocate for the accused and the matter having been stood over for consideration till this day, this court delivered the following:

J U D G M E N T

This complaint is filed by the complainant against the accused for the offence punishable under section 138 and 142 of Negotiable Instrument Act (Herein after mentioned as NI Act).

2. The brief averments of the complaint are;

The accused borrowed an amount of Rs.7,00,000/- from the complainant on 05.06.2016 for the purpose of her family expenses and she executed a demand promissory note in evidence of it. On the same day she agreeing to repay the same along with interest @ 24% per annum with yearly rests to the complainant or his order whenever demand. Later in spite of repeated demands made by the complainant for the payment of the said amount the accused postponed the same and finally issued one cheque bearing

No.048537 of HDFC Bank, Eluru for Rs.7,00,000/- dated 18.02.2018 in favour of the complainant towards part satisfaction of the said pronote debt. The complainant presented the cheque for collection in his bank i.e. Andhra Bank,

RR.Pet Branch, Eluru, West Godavari District and the same was returned as unpaid with a Cheque return memo dated 20.02.2018 for the reason as “FUNDS INSUFFICIENT”. Thereafter on 05.03.2018 the complainant got issued

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a registered legal notice demanded the accused to pay the cheque amount of

Rs.7,00,000/- within 15 days of the receipt of the said legal notice, and the said notice was received by the accused on 06.03.2018, but failed to make the payment. Hence this complaint.

3.My learned Predecessor took cognizance of this case against accused for the offence under Sections 138 of NI Act and issued summons to Accused.

4. On appearance of the accused, copies of documents were furnished to the accused as required U/Sec.207 of Cr.P.C. The accused was examined U/sec.

251 of Cr.P.C by putting the substance of the accusation in the complaint for the offence U/Sec.138 of NegotiableInstruments Act leveled against her and the accused pleaded not guilty and claimed to be tried.

5. To substantiate its case, the complainant got examined himself as P.W.1 and got marked Exs.P1 to P6.

Ex.P1 is the certified copy of the promissory note dated 05.02.2016 for

Rs.7,00,000/- executed by the accused in favour of complainant, Ex.P2 is the part payment endorsement dated 02.02.2019 for Rs.5,000/- made on the back side of Ex.P1 promissory note, Ex.P3 is the cheque bearing No.048537 dated 18.02.2018 for Rs.7,00,000/- of HDFC Bank, Eluru issued by the accused in favour of complainant, Ex.P4 is the cheque return memo dated 21.02.2018 of

Andhra Bank, Eluru branch, Ex.P5 is the office copy of legal notice dated 05.03.2018 got issued by the complainant to the accused through his counsel and Ex.P6 is the served postal acknowledgment dated 06.03.2018.

6.After closure of evidence on the side of the prosecution, accused was examined under Sec.313 Cr.P.C., for the incriminating evidence found in the hands of the prosecution witnesses, the accused denied the same and reported no defence evidence on her behalf.

7.Heard both sides. Perused the oral and documentary evidence on record.

8. Now the point for determination is,

1) “ Whether the complaint has established the factual basis of his case under section 138 of NI Act against the accused and a presumption under section 139 of NI Act is drawn in favour of the complainant?”

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CC.No.812/2018

2) “ If so, whether the accused rebutted the presumption drawn under Section 139 of NI Act in favour of the complainant?”

POINT NO.1:

9.To establish the factual basis of the case under section 138 of NI Act, the complainant has to establish that,

(i) Ex.P3 Cheque is drawn in his favour by the accused in discharge of legally enforceable debt or other liability.

(ii) He presented the said cheque in his bank within the period of six months from the date of its issue or within the period of its validity.

(iii) The said cheque is returned by the accused’s bank for the reason “Funds Insufficient” in the account of the accused to honour the said cheque”.

(iv) He issue a legal notice to the accused within a period of 30 days from the date of receipt of information from the bank relating to the return of the cheque as unpaid, making a demand for the payment of the said cheque amount.

(v) The accused failed to make the said payment of amount to him within 15 days of the receipt of the said notice.

10.To establish the said facts, the complainant examined himself as PW.1 and got marked Ex.P1 to Ex.P6 on his behalf and also got examined the scribe of Ex.P1 promissory note by name Meduri Kanaka Durga Maha Lakshmi as

PW.2. In his chief affidavit he has reiterated the contents of his complaint.

According to the complainant, the accused borrowed an amount of

Rs.7,00,000/- from him on 05.02.2016 for the purpose of her family expenses and in evidence of it she has executed a promissory note in his favour. In support of his contention, the complainant got marked the promissory note as

Ex.P1. In his chief affidavit he has not mentioned anything about the part payment made by the accused, but he got marked the part payment said to have been made by the accused on 02.02.2019 for Rs.5,000/- as Ex.P2. PW.2 also corroborated to the evidence of PW.1 in all material particulars.

According to the complainant in discharge of the said debt due under

Ex.P1 promissory note the accused issued Ex.P3 cheque on 18.02.2018 for

Rs.7,00,000/- and he presented the said cheque in his bank i.e. Andhra Bank on 20.02.2018 and the same was returned with a cheque return memo dated 21.12.2018 as Funds Insufficient. In support of his contention the complainant

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CC.No.812/2018

got marked the cheque as Ex.P3, Cheque return memo dated 21.02.2018 as

Ex.P4.

11.Under section 146 of the Act, the Court shall, in respect of every proceeding under this chapter, on production of bank’s slip or memo having thereon the official mark denoting that the cheque has been dis-honoured, presume the fact of dis-honour of said cheque, unless and until such fact is dis- proved.

12.In this case, the complainant got marked the Cheque return memo as Ex.P4. In view of section 146 of the Act, this Court presumes that Ex.P3 cheque is returned for the reason Funds Insufficient in the account of the accused.

13.According to the complainant after return of Ex.P3 cheque by the bank he got issued a legal notice to the accused on 05.03.2018 within 13 days of the Ex.P4 cheque return memo and the said legal notice is received by the accused. In support of his contention, he got marked the legal notice as Ex.P5 and the served postal acknowledgment as Ex.P6.

14.Under section 138 of the Act, the complainant is supposed to give the legal notice to the accused within a period of 30 days from the date of receipt of information from the bank regarding the return of the cheque as unpaid. In this case on hand, the complainant got issued the legal notice within 13 days of the information about Ex.P4 Cheque return memo i.e. within the statutory period mentioned in Section 138 of the Act. According to the complainant, the accused failed to make the payment within the period of 15 days of the receipt of the said notice, hence he filed this complaint.

15.Our Honourable Supreme Court in many Judgments i.e. In

Goaplast (P Limited) V. Chico Ursula D-Suoza reported in AIR 2004 SC

408, D.Atchyuta Reddy V. State of AP reported in 2010 ALD (Crl.) 59

(AP) and Rangappa Vs. Sri Mohan reported in 2010(2) ALD(Crl.) 734 (SC), and in many other cases held that “it is obligatory on the part of the

Court to raise presumption in every case whether factual basis for raising of presumption has been established, i.e. once the cheque is issued by the drawer a presumption under section 139 must follow.

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CC.No.812/2018

16.In this case on hand, the complainant by adducing his evidence and by marking of Ex.P1 to Ex.P6, he has established that Ex.P3 cheque is issued by the accused in discharge of the debt under Ex.P1 promissory note in favour of complainant and he presented the said cheque in his bank and the same is returned for the reason Funds Insufficient and thereafter he got issued a legal notice to the accused within the statutory period of 30 days and the same was received by the accused and failed to make the payment. Since the complainant established the factual basis of his case, this Court draws a presumption under section 139 of the NI Act in favour of the complainant that

Ex.P3 cheque is issued in discharge of a legally enforceable debt.

This point is answered accordingly.

POINT NO.2:

17.Since this Court draws a presumption in favour of the complainant under section 139 of the NI Act, now the burden is on the accused to rebut the said presumption.

To rebut the presumption under section 139 of the NI Act, the accused cross examined PW.1 and P.W.2. The learned defence counsel suggested to PW.1 that at the time of scribing of Ex.P1 promissory note, the complainant obtained Ex.P3 cheque from the accused, for which the complainant denied. The said suggestion shows that the accused admitted his signature on Ex.P1 promissory note and also on Ex.P3 cheque. But his contention is that in the year 2016 he borrowed Rs.50,000/- from the complainant and at that time the complainant obtained Ex.P3 cheque from him and the accused repaid the said cash, but the complainant did not return Ex.P3 cheque and the complainant falsely filed this case against the accused.

18.But section 118(1) of NI Act there is a presumption that every negotiable instrument was made or drawn for consideration and that every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration. In this case the accused contend that she has only taken

Rs.50,000/-, but not Rs.7,00,000/- under Ex.P1 promissory note. In view of

Section 118 of NI Act, this Court draws the presumption in favour of the complainant that the promissory note is drawn for a consideration of Rs.7

Lakhs. In view of the said presumption, the burden is on the accused to prove

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CC.No.812/2018

that Ex.P1 promissory note is drawn only for Rs.50,000/-. But except the said suggestion the accused did not place any material before this Court to prove that under Ex.P1 promissory note she has taken only Rs.50,000/-.

19.The further contention of the accused is that the signature on

Ex.P1 promissory note and Ex.P2 endorsement are looking different. But except putting the said suggestion, he has not made any attempt to prove the same. The further contention of the accused is that the signature on Ex.P6 acknowledgment does not belong to the accused. But he has not denied the address on Ex.P6 acknowledgment.

20.Under section 27 of General Clauses Act, the Meaning of service by post is Where any [Central Act] or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, where the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

In this case, since the accused did not denied, address on Ex.P6 acknowledgment it shall be presumed that Ex.P5 legal notice is sent to the correct address of the accused and it is duly served on the accused.

21.The learned defence counsel in his argument further submitted that the complainant did not file any document before this Court to show that he has having financial capacity to lend Rs.7 Lakhs to the accused and further he has not shown the said amount in his income tax returns and therefore the said debt is not legally enforceable debt. In support of his contention, he got marked the case law of our Honourable High Court i.e. K.Venkata Krishna

Prasad V. Peram Sai Swaroopa, Vijayawada and another reported in

2017(1) ALT (Crl) 259 (AP) wherein it is held that “non filing of Income Tax returns showing the debt covered may be sufficient to rebut the presumption under section 139 of the NI Act.

21.On the other hand the learned complainant counsel in his argument submitted that, non showing of the amount given to any person

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CC.No.812/2018

under debt in Income Tax returns, it does not mean that the amount is not given to the said person. If the amount is now shown in the Income Tax returns, then it is for the Income Tax Department. In Rohitbhai Jeevanlal Patel

Vs. State of Gujarath and Another reported in 2019 (2) ALD (crl) 385 (SC) wherein the Hon’ble Supreme Court observed the findings of the High Court that the Hon’ble High Court observe that “ Ordinarily, any prudent business person would prefer to transact by cheque while lending money, but it is quite often noticed that the cash transactions in the business would allow huge sum of money as cash, which some times are shown in the books of account as cash on hands or otherwise as amount available on books. Assuming that cheque transaction of lending of amount is absent and income-Tax returns also do not reflect such amount, that at the best would hold the assesse or lender liable for action under the Income Tax Laws.”

22.The said case law show that if the debt amount is not shown in

Income tax returns, then the assessee is liable for action under Income Tax

Laws. It does not raise any presumption that the debt amount is not given.

Further the Hon’ble Supreme Court in a case law i.e. Director of Inspection

Investigation Vs. A.V.Shanthi reported in 2002(6) Supreme Court Cases 259

Hon’ble Supreme Court observed that under section 269-SS of Income Tax Act,

the borrowers should shown the amount received in their Income Tax returns, but not the lender. If the borrower does not show the amount received in the

Income Tax returns, then he would be penalized. According to the said Case law, it shows that the borrower should show the amount received in his Income

Tax returns, but not the lender. Therefore coming to this case, non showing of amount given to the defendant in Income Tax returns is not fatal to the case of the complainant.

23.With regard to the financial capacity and source of income, our

Hon’ble Supreme Court in Tdhi Singh Vs. Narayan Das Mahanthi wherein

Hon’ble Supreme Court observed that it is not for the complainant in a case

under section 138 of the Act to initially leading evidence to show that he had the financial capacity. The onus lies with the accused to raise a probable defence in order to rebut the presumption in cheque bounce cases and unless a case is set up in the reply notice to the statutory notice sent, the complainant is not accepted to confirm the presumption of consideration by leading evidence. Hon’ble Apex Court further observed that the accused is not expected to discharge an unduly high standard of proof, but he only needs to

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establish a probable defence. As to whether probable defence has been established is a matter to be decided on the fact of each case on the conspectus of evidence and circumstances that exist. The Hon’ble Apex Court further observed that it is a settled question of Law that in case of cash transaction showcasing that the complainant did not have the adequate financial capacity to lend money to the accused amounts to a probable defence and can help in rebutting the presumption that is accrued to the benefit of the complainant in cheque dis-honour cases. Hence the Court stated that in cases in which the underlying debt transaction is a cash transaction, the accused can raise a probable defence by questioning the financial capacity of the complainant and once the said question is raised, the onus shifts on the complainant to prove his financial capacity.

24.From the said Judgment of Hon’ble Apex Court, this Court is of the view that the complainant need not initially lead evidence to show that he had the financial capacity. But when the financial capacity of the complainant is questioned by the accused, then the onus shifts on the complainant to prove his financial capacity. Coming to this case on hand the learned defence counsel simply suggested to PW.1 that he does not have the capacity to give

Rs.7,00,000 /- to the accused and PW.1 denied the same. The learned defence counsel did not elicit any material as to from where the complainant brought the said Rs.7,00,000 /- which is said to be given to the accused. The learned defence counsel did not elicit the source of the said Rs.7,00,000/-. Therefore simply suggesting to the complainant that he is not having any financial capacity to give the said Rs.7,00,000 /- does not discharge the burden of the accused and there is no any probable defence raised by the accused.

In view of the above discussion this Court is of view that the accused failed to raise a probable defence and failed to rebut the presumption drawn under section 139 of the NI Act in favour of the complainant.

25. IN THE RESULT, the accused is found guilty for the offence U/sec. 138 of Negotiable Instruments Act and accused is convicted U/sec.255(2) Cr.P.C.

for the said offence.

Dictated to the stenographer, transcribed by him, corrected and pronounced by me

in open court, this the 17 th day of October, 2022.

// Sd/- M.PRAMEELA RANI //

II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

ELURU.

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26.Accused is explained about the punishment provided U/sec.138 of

Negotiable Instruments Act. On questioning about the quantum of sentence to be imposed against the accused, she pleaded mercy and further submitted that she is a Government Employee and her family is dependent on her and she prays to take lenient view and she pleaded mercy.

Considering the nature of offence proved against the accused, and as the accused deliberately issued Ex.P3 cheque without having sufficient funds in her account, if the accused is released under Probation of Offenders

Act, it is nothing but traverse of justice and the very object of the legislative mandate of making bouncing of cheque as punishable will be at stake.

Therefore, I am of the view that it is not fit case to invoke beneficial provisions of Probation of Offenders Act and section 360 of Cr.P.C. in favour of the accused.

Considering all these circumstances, I feel the following sentence will meet the ends of justice. The accused is sentenced to undergo Simple

Imprisonment for a period of ONE YEAR, and also directed to pay compensation of amount of Rs.7,00,000/- to be paid to the complainant under section 357(3) of Cr.P.C. within a period of three months from the date of this order, for the sufferance caused to the complainant.

Further accused is informed about her right of appeal before

Hon'ble Sessions Court and also informed about her right to get free legal Aid

through Hon'ble Chairman, District Legal Service Authority, Eluru, if she has no means. Office is directed to serve the copy of this judgment to the accused forthwith at free of cost. Prepare the conviction warrant accordingly.

Typed to my dictation by Stenographer, corrected and pronounced by me in open court, this the 17 th day of October, 2022.

// Sd/- M.PRAMEELA RANI //

II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

ELURU.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR COMPLAINANT : FOR ACCUSED :

PW.1: Chode Naga Koteswara Srinivas.NIL

PW.2: M.Kanaka Durga Mahalakshmi.

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DOCUMENTS MARKED

FOR COMPLAINANT :

Ex.P1 is the certified copy of the promissory note dated 05.02.2016 for

Rs.7,00,000/- executed by the accused in favour of complainant.

Ex.P2 is the part payment endorsement dated 02.02.2019 for Rs.5,000/- made on the back side of Ex.P1 promissory note.

Ex.P3 is the cheque bearing No.048537 dated 18.02.2018 for Rs.7,00,000/- of

HDFC Bank, Eluru issued by the accused in favour of complainant.

Ex.P4 is the cheque return memo dated 21.02.2018 of Andhra Bank, Eluru branch.

Ex.P5 is the office copy of legal notice dated 05.03.2018 got issued by the complainant to the accused through his counsel.

Ex.P6 is the served postal acknowledgment dated 06.03.2018.

FOR ACCUSED :

NIL.

MATERIAL OBJECTS MARKED:

NIL.

// Sd/- M.PRAMEELA RANI //

II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

ELURU.

// TRUE COPY //

II AJFCM, ELURU.

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CC.No.812/2018

CALENDAR AND JUDGMENT

WEST GODAVARI DISTRICT

Calendar Case No.812/2018 tried by the II Additional Judicial Magistrate of I Class, Eluru.

OffenceFiling ofApprehensionReleaseCommencemClose of trialSentence or compltof accusedon Bailent of trialorder 05.02.2016 19.04.2018- - - -02.11.202107.10.202217.10.2022

Explanation of the delay: Cognizance was taken on 17.12.2018. Accused appeared and copies of documents were furnished on 16.09.2019. On 02.11.2021 accused was examined U/Sec.251 of Cr.P.C. and the case posted for trial. On 01.07.2022 P.W.1 was examined and on 18.07.2022 PW.1 was cross examined and on 25.07.2022 PW.2 was examined and on 12.08.2022 Pw.2 was cross examined and the complainant side evidence closed and the case posted for examination of accused u/s.313 Cr.P.C and the accused was examined under section 313 of Cr.P.C on 29.08.2022 and the accused reported no defence evidence and hence defence evidence was closed. Heard arguments and posted for Judgment. On 17.10.2022 Judgment (Vide separate Judgment) pronounced in open court. Hence, the delay.

Complainant:Chode Naga Koteswara Srinivas, S/o Krishna Murthy, Hindu, Male, Aged 52 Years, Business, R/o Dr.No.6B-4-2, Southern Street, Eluru.

Accused: Pilli Uma Devi, W/o Betala Koteswara Rao, Hindu, Female, Aged 55 Years, Addl. Director, Government Head Quarters Hospital, Eluru.

Offences : Under Section 138 of Negotiable Instrument Act, 1881.

Finding: Found guilty for the offence punishable Under Sections 138 of Negotiable Instrument Act, 1881.

Result: IN THE RESULT, the accused is found guilty for the offence U/sec. 138 of Negotiable Instruments Act and accused is convicted U/sec.255(2) Cr.P.C. for the said offence and she is sentenced to undergo Simple Imprisonment for a period of ONE YEAR, and also directed to pay compensation of amount of Rs.7,00,000/- to be paid to the complainant under section 357(3) of Cr.P.C. within a period of three months from the date of this order, for the sufferance caused to the complainant.

Further accused is informed about her right of appeal before

Hon'ble Sessions Court and also informed about her right to get free legal Aid

through Hon'ble Chairman, District Legal Service Authority, Eluru, if she has no means. Office is directed to serve the copy of this judgment to the accused forthwith at free of cost. Prepare the conviction warrant accordingly.

// Sd/- M.PRAMEELA RANI //

II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

ELURU.

// TRUE COPY //

II AJFCM, ELURU.

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CC.No.417/2019

IN THE COURT OF II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS : ELURU

Present : Ms.Prameela Rani,

II Additional Judicial Magistrate Of I Class, Eluru.

Friday, this the 11th day Of November, 2022.

C.C.No.417/2019

BETWEEN : The State : Rep. By Sub-Inspector of police, Eluru I Town Police Station, Eluru. … Complainant. A N D Veeramallu Hanumantharao, S/o Venkatarao, Dr.No.2-113/2, Chintaparru Village, Palakole Mandal. …. Accused. This case is coming on 04.11.2022 before me for final hearing in the presence of

Senior Assistant Public Prosecutor for the complainant and Sri E.Venkata Ratnam, Advocate for Accused, and having stood over for consideration to this day, this court delivered the following:

J U D G M E N T

1.The Sub-Inspector of police, Eluru I Town police station has laid charge sheet in Cr.No.16/2019 against Accused alleging him for the offence under Section 304-A of IPC.

2. The brief facts of the prosecution case are that :

The Pentapati Suresh who is resident of Kothuru Indiramma Colony,

Venkatapuram Panchayat, Eluru was worked in Godavari Printers, Eluru and he used to go to his work on bicycle. As usually on 18.01.2019 morning while the deceased proceeding to his routine work on his bicycle at about 9 AM, when he reached Opposite to the Christian Burial Ground, Vangayagudem Eluru in the mean time the crime vehicle i.e. Lorry bearing No.AP37-TE-1897 was came in opposite direction with high speed and drove in a rash and negligent manner and dashed the bicycle of the deceased and ran over the both legs of the deceased, as a result of which the deceased sustained with severe crush injuries on his both legs and scratches on left of his head. On knowing about the same Pentapati

Aruna Kumari (LW1) who is the wife of the deceased rushed to the spot and shifted her husband to Government General Hospital, Eluru and further he was shifted to Government General Hospital, Vijayawada for better treatment. While undergoing treatment the deceased succumbed to injuries.

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Basing on hospital intimation and statement of Pentapati Aruna Kumari (LW.1), the Sub-Inspector of Police, Eluru I Town PS (LW.15) registered the case in

Cr.No.16/2019 for the offence under sections 338 of IPC on 18.01.2019 at 1 PM and conducted the investigation in this case. While undergoing treatment the deceased succumbed to injuries on same day at 2 PM and basing on the death intimation, the SI of Police (LW.15) altered the section of law from 338 IPC to 304-

A of IPC and continued further investigation.

During the course of investigation, the Sub-Inspector of Police (LW.15) visited the scene of offence, examined the scene, prepared rough sketch of the scene at the scene and the mediators got drafted scene observation report and from there he went to Government General Hospital, Eluru and conducted inquest over the body of the deceased in the presence of Panchayatdars and blood relatives of the deceased and conducted Autopsy over the dead body of the deceased and issued PM Certificate of the deceased, and the Motor Vehicle

Inspector inspected the crime vehicle and issued MVI report and later he issued section 41-A Cr.P.C. notice to the accused. After completion of investigation, the SI of Police (LW.15) filed charge sheet against the accused. Hence the charge.

3. This Court took cognizance of this case against accused for the offence under Section 304-A of IPC and issued summons to Accused. On appearance of

Accused, copies of case documents were furnished to him as contemplated under

Sec.207 Cr.P.C.

4.Accused was examined under Sec.251 Cr.P.C by explaining the substance of accusation leveled against him for the offence under Section 304-A of IPC, for which, he denied the offence and claimed to be tried.

5.During the course of trial, in order to prove this case, the prosecution examined P.W.1 to 5, and got marked Ex.P1 to P12. The details of which are mentioned at the appendix of evidence.

[[6. After closure of evidence on the side of the prosecution, accused was examined under Sec.313 Cr.P.C., for the incriminating evidence found in the hands of the prosecution witnesses, the accused denied the same and reported no defence evidence on his behalf.

7.Heard learned APP and also the learned defence counsel physically.

8. Now the point for determination is

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(i) “Whether the deceased met with an accident on 18.01.2019

caused by a Lorry bearing No.AP37-TD-1897 at opposite to

Christian Burial ground, Vangayagudem, Eluru, beyond all

reasonable doubt”?

(ii) “If so, whether the accused is the driver of the crime vehicle at the time of accident, beyond all reasonable doubt?”

(iii) “ If so, whether the accused drove the crime vehicle in a rash or

negligent manner and caused the accident, beyond all reasonable

doubt?”

POINT NO.1:-

9.To prove the said fact the prosecution relied upon the evidences of PW.1 to

PW.3.

PW.1 who is the defacto complainant and the wife of the deceased, in her evidence she says that the deceased is her husband. On 18.01.2019 at about 9 AM her husband was going to his work on his bicycle. At about 9.15 AM, she received a phone call from some unknown person informing that her husband met with an accident near burial ground at Vangayagudem, Eluru caused by a Lorry and he was fell down there. Then she along with her son went to the place of accident and there they found a lorry went upon two legs of her husband. The said lorry was also found near the legs of her husband. She says that she does not remember the registration number of the said lorry. She says that both the legs of her husband were severely damaged and he was shifted to Government

Hospital, Eluru for treatment and at the hospital the police recorded her statement. In support of her contention, the prosecution got marked the said statement as Ex.P1. She further says that on the same day her husband was shifted to Government Hospital, Vijayawada for better treatment and after one hour of admitted in the said hospital, the deceased succumbed to injuries.

10. PW.2 who is the mediator at the time of scene observation report and also at the time of inquest. In his evidence, he says that on 18.01.2019 at about 12.30 PM, while he was present in his office, the head constable of Eluru I town PS made a phone call to him and requested him to come near Christian burial ground, Vangayagudem, Eluru to act as a mediator. Accordingly he along with

S.Srinivasarao, Retired VRO went to the place of accident, by that time the Head

Constable P.Venkateswara Rao (PW.5) was present there. There the police examined the scene. There they noticed blood stains on the road. There he has scribed the scene observation report after observing the scene. He says that he

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along with the other mediator and the police attested it. In support of his contention the prosecution got marked the scene observation report as Ex.P2. On a perusal of Ex.P2 scene observation report, it shows that when he along with the police went to the scene of offence, they found only blood stains at the scene of offence. There is no mention of any lorry at the scene of offence when they visited the scene of offence.

11.On a perusal of Ex.P1 statement, it shows that the driver of the lorry bearing NO.AP37-TD-1897 caused the accident. Ex.P1 statement nowhere shows that the name of the said lorry driver. Only the registration number of the said lorry is mentioned. But the FIR is registered against the accused herein. The investigating officer in his evidence did not depose as to how he has mentioned the name of the accused in the FIR. The investigating officer in his evidence he says that he has registered this case against the driver of the lorry bearing

NO.AP37-TE-1897. He nowhere deposed that the FIR is registered against the

Accused in this case. But Ex.P7 FIR shows that it is registered against the accused.

12.PW.2 further sayst hat on 18.01.2019 at about 3 PM, on the request of the police they went to PM shed, Government Hospital, Eluru and there in the presence of him, Ravi Kumar (LW.10), V.Naga Malleswara Rao (LW.11), police held inquest over the body of the deceased by name P.Suresh and during the inquest they opined that the deceased died due to the injuries sustained in the lorry accident. He says that he has scribed the inquest. In support of his contention the prosecution got marked the inquest report as Ex.P3.

13.The prosecution examined the eye witnesses of the said accident as

PW.3 and PW.4. But they turned hostile to the case of the prosecution as they deposed that they do not know anything about the case facts and police never examined him. Though they are cross examined by the learned APP after treating them as hostile, no material is elicited which helps the case of the prosecution.

14.The prosecution examined the investigating officer who registered this case and conducted the investigation as PW.5. PW.5 in his evidence he deposed the manner in which he registered this case basing on the hospital intimation along with Ex.P1 statement received by him and conducting the investigation by going to the scene of offence, preparing the rough sketch of the

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CC.No.417/2019

scene and thereafter receiving the death intimation of the deceased on the same day and basing on it altering the section of law from 338 of IPC to 304-A of IPC and thereafter going to the Government Hospital, Vijayawada and holding inquest over the body of the deceased and thereafter examining the witnesses. IN support of his contention the prosecution got marked the Hospital intimation as

Ex.P6, FIR as Ex.P7, Rough Sketch as Ex.P8, death intimation as Ex.P9 and Altered

Memo as Ex.P10. PW.5 further says that the rest of the investigation is done by his SI of Police (LW.16). His SI of Police (LW.16) gave a requisition to the Motor

Vehicle Inspector and served section 41- A Cr.P.C. notice on the accused and filed charge sheet.

15.From the evidence of PW.1 to PW.5 coupled with Ex.P3 inquest, Ex.P11

PM report, it shows that the deceased met with an accidnet on 18.01.2019 at 9

AM opposite to Christian burial ground, Vangayagudem, Eluru and in the said accident his both legs were damaged and he was shifted to Government Hospital,

Eluru and thereafter on the same day shifted to Government Hospital, vijaywada and there he succumbed to injuries on the same day. In Ex.P1 statement it is mentioned that the lorry bearing NO.AP37-TD-1897 caused the said accident. But none of the witnesses deposed the said lorry caused the said accident. The eye witnesses turned hostile to the case of the prosecution. PW.1 in her evidence she says that when she went to the scene of offence, there she found the crime lorry on the legs of the deceased. But she says that she does not remember the registration number of the lorry. But Ex.P2 scene observation report and the evidence of PW.2 no where shows that the said lorry is present at the scene of offence, when they went to the scene of offence. Admittedly PW.1 is not an eye witness to the accident. Thereafter she stating the registration number of the crime lorry in Ex.P1 statement cannot be believed. Though it is established that the deceased met with an accident on 18.01.2019, but there is no material on record to say that the lorry bearing NO.AP37-TD-1897 caused the said accident.

This point is answered accordingly.

16. POINT NOs.ii & iii :

To prove the said fact, the prosecution relied upon the evidences of PW.1 to

PW.5.

PW.1 is the wife of the deceased, but she is not an eye witness to the said accident. She says that after knowing about the accident, she went to the scene

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CC.No.417/2019

of offence and there she found the lorry at the legs of the deceased and she found the driver of the lorry at the place of accident. She also identified the accused in the open court as the person who caused the said accident. Though

PW.1 in her evidence she deposed that the driver of the said lorry is present at the scene of offence. But the said fact is not mentioned in Ex.P1 statement which is said to be lodged soon after the accident. Ex.P1 statement nowhere says that

PW.1 has seen the driver of the crime vehicle when she visited the scene of offence. Ex.P1 statement only shows that lorry bearing No.AP37-TD-1897 caused the said accident. PW.5 says that basing on Ex.P1 report, he registered this case.

In Ex.P1 statement only the registration number of the said lorry is mentioned.

The name of the driver of the said lorry is not mentioned. But Ex.P7 FIR shows that it is registered against the accused herein. The investigating officer PW.5 did not depose how the name of the accused is mentioned in the FIR, when the name of the accused is not mentioned in Ex.P1 statement. This arises a doubt in the case of the prosecution. Further the eye witnesses i.e. PW.3 and PW.4 to the said accident turned hostile to the case of the prosecution, they deposed that they do not know about the case facts and police never examined them. Though they are cross examined by the learned APP, after treating them as hostile, no material is elicited which helps the case of the prosecution. PW.5 also nowhere deposed how he came to the conclusion that the accused is the driver of the crime vehicle.

Therefore this Court is of the view that the prosecution failed to prove that the accused is the driver of the crime vehicle at the time of accident. Therefore the accused driving the crime vehicle in a rash and negligent manner and causing the said accident does not arise. This point is answered accordingly.

In view of the above discussion, this Court is of the view that the prosecution failed to prove the guilt of the accused for the offence under section 304-A of IPC beyond all reasonable doubt.

17. IN THE RESULT, Accused is found not guilty for the offence punishable offence under Section 304-A of IPC, thereby he is acquitted under section 255(1) of Cr.P.C.

Dictated to Stenographer Gr.III, transcribed by her, corrected and pronounced by me in

Virtual Court on this the 11 th day of November, 2022.

II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

ELURU.

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CC.No.417/2019

APPENDIX OF EVIDENCE

FOR PROSECUTION FOR ACCUSED

PW.1: P.Aruna Kumari. NIL.

PW.2: K.Venkateswara rao.

PW.3: V.Murali.

PW.4: T.Rajeswari.

PW.5:P.Venkateswara Rao.

EXHIBITS MARKED

FOR PROSECUTION

Ex.P1: Statement of PW.1.

Ex.P2:Scene observation report.

Ex.P3Inquest report.

Ex.P4:Section 161 Cr.P.C. Statement of PW.3.

Ex.P5:Section 161 Cr.P.C. Statement of PW.4.

Ex.P6: Hospital intimation.

Ex.P7:FIR.

Ex.P8:Rough Sketch.

Ex.P9:Death intimation dt.18.01.2019.

Ex.P10:Altered memo.

Ex.P11:PM Report.

Ex.P12:MVI Report.

FOR ACCUSED:

NIL

MATERIAL OBJECTS MARKED

NIL.

II AJFCM, ELURU.

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CC.No.417/2019

CALENDAR AND JUDGMENT

WEST GODAVARI DISTRICT

Calendar Case No.417/2019 tried by the II Additional Judicial Magistrate of I Class, Eluru.

DATE OF

OffenceComplaintApprehensionRelease onCommencClose ofSentence of or reportof Accusedbailement oftrialOrder trial 18.01.201918.01.2019Sec.41-ASec.41-A10.01.202204.11.202211.11.2022 Cr.P.C. NoticeCr.P.C. Notice

Explanation for the delay: No such unavoidable delay.

Complainant: The Sub-Inspector of police, Eluru I Town Police Station.

Cr.No.16/2019of Eluru I Town P.S.

Veeramallu Hanumantharao, S/o Venkatarao,

Dr.No.2-113/2, Chintaparru Village, Palakole Mandal.

…. Accused. ------------------------------------------------------------------------------------------------- Offences : Under Sec.304-A of IPC.

Finding :Found not guilty.

RESULT: IN THE RESULT, Accused is found not guilty for the offence punishable offence under Section 304-A of IPC, and thereby he is acquitted under section 255(1) of Cr.P.C.

II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS

ELURU.

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C.C.No.1025/2019

IN THE COURT OF II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS : ELURU

Present : Ms.Prameela Rani,

II Additional Judicial Magistrate Of I Class, Eluru.

Friday, this the 11th day Of November, 2022.

C.C.No.1025/2019

BETWEEN : The State : Rep. By Sub-Inspector of police, Eluru I Town Police Station, Eluru. … Complainant. A N D

1.Nandiwada Jaya Sagar, S/o Rama Lingeswara Rao, Aged 34 Years, C/Vaddeelu, Dr.No.7B-12-14, Eastern Street, Eluru.

2.Dasari lakshmana Rao, S/o Satyam, Aged 57 Years, Surya Balija, Sastri Colony, Venkatapuram, Eluru.

3.Nandiwada Jayalakshmi, W/o Radha Krishna, Aged 52 Years, C/Vaddeelu, Near Baba Saheb House, Eastern Street, Eluru.

4.Mailavarapu Benhar Rama Eswar, S/o Prabhakara Rao, Aged 32 Years, C/Kapu, Southern Street, Eluru.

5.Yerra Rajesh, S/o Nageswara Rao, Aged 38 Years, C/Devangula, Near Vinayaka Temple, Eastern Street, Eluru.

6.Kuppili Hanumanthurao, S/o Ramu, Aged 32 Years, C/Rajaka, Vinayak Nagar, Chataparru Road, Eluru.

7.Manchina Krishna Mohan, S/o Satyanarayana, Aged 38 Years, C/Kamma, Near Saibaba Temple, Eastern Street, Eluru.

8.Batlanki Rohith, S/o Satya Sai Baba, Aged 22 Years, C/Vaddeelu, Behind Papasaheb Building, Eastern Street, Eluru. …. Accused No.1 to 8.

This case is coming on 01.11.2022 before me for final hearing in the presence of Senior Assistant Public Prosecutor for the complainant and Sri M.S.Gopala Krishna, Advocate for Accused No.1 to 8 and having stood over for consideration to this day, this court delivered the following:

J U D G M E N T

1.The Sub-Inspector of police, Eluru I Town police station has laid charge sheet in Cr.No.184/2019 against Accused No.1 to 8 alleging them for the offence under Sections 3 and 4 of AP Gaming Act.

2. The brief facts of the prosecution case are that :

On 28.07.2019 at about 04.30 PM on receipt of credible information about the gambling playing cards by betting money at a residential house vide

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C.C.No.1025/2019

Dr.No.7B-1-14, Eastern street, Eluru, the SI of Police (L.W.9), Eluru I Town PS obtained search proceedings from SDPO, Eluru, to conduct raid over the gambling in the presence of two mediators and his staff proceeded to the said house, while the accused No.1 to 8 were playing cards by betting money in the said house, and the SI of Police (LW.9) caught hold the accused No.1 to 8 and on enquiry they revealed their identity particulars and also confessed the commission of offence. Then, the SI of Police arrested the Accused No.1 to 8, seized cash of Rs.20,300/-, 7 Mobile phones, 7 cellphones and 52 Playing Cards from the possession of accused No.1 to 8 and recorded their confession in the presence of mediators under mediator nama and brought them to the police station and registered the case in Cr.No.184/2019 under section 3 and 4 of AP

Gaming Act, against the accused No.1 to 8. After completion of investigation, the SI of Police filed charge sheet against accused No.1 to 8. Hence, the charge.

3. This Court took cognizance of this case against accused No.1 to 8 for the offence under Section 3 and 4 of AP Gaming Act and issued summons to

Accused No.1 to 8. On appearance of Accused No.1 to 8, copies of case documents were furnished to them as contemplated under Sec.207 Cr.P.C.

4.Accused No.1 to 8 were examined under Sec.251 Cr.P.C by explaining the substance of accusation leveled against them for the offence under Section 3 and 4 of AP Gaming Act for which, they denied the offence and claimed to be tried.

5.During the course of trial, in order to prove this case, the prosecution examined P.W.1 to 3, and got marked Ex.P1 to P5 and MO.1 to MO.11. The details of which are mentioned at the appendix of evidence.

[[6. After closure of evidence on the side of the prosecution, accused were examined under Sec.313 Cr.P.C., for the incriminating evidence found in the hands of the prosecution witnesses, the accused No.1 to 8 denied the same and reported no defence evidence on their behalf.

7.Heard both counsels.

8. Now the point for determination is “Whether the prosecution has prove the guilt of accused No.1 to

8 for the offence under Section 3 and 4 of AP Gaming Act beyond

all reasonable doubt?”

P O I N T

9.To prove the said fact, the prosecution relied upon the evidences of PW.1 to PW.3.

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C.C.No.1025/2019

10.PW.3 who is the defacto complainant and also the investigating officer, in his evidence he says that on 28.07.2019 at about 2.30 PM, he received credible information about playing cards in bearing NO.7B-12-14 of

Eastern street, Eluru. Then immediately he obtained search warrant from SDPO,

Eluru and he secured two mediators i.e. PW.2 and T.Sadasivarao (LW.7). He along with the said two mediators and his staff left the police station at about 4

PM and went to the scene of offence house at about 4.15 PM. The said house is a building containing two portions in the ground floor and one portion in the first floor. They went into the right side portion in the ground floor of the building and in the middle room of the said portion they found accused No.1 to 8 sitting on the ground in a circle and playing Lopala Bayata i.e. Kota Banti Aata with playing cards. He found some cash, seven cellphones and five bike keys in the center of the game. They are playing the said game for betting.

11.PW.3 further says that on questioning them one after the other with regard to their names and particulars in the presence of mediators, they revelaed their names and particulars and A1 confessed that the said house belong to him and he further confessed about the offence. Basing on the said confession he seized cash of Rs.5,110-, one samsung cellphone, one bike key from A1, Cash of Rs.830/-, one bike key from A2, Cash of Rs.4,760/-, one samsung cellphone from A3, Cash of Rs.1,120/-, one vivo V11 Pro cellphone and one bike key from A4, cash of Rs.510/-, one Samsung J6 cellphone, one bike key from A5, Cash of Rs.4,470/-, one Samsung A50 cellphone, one bike key from A6,

Cash of Rs.510/-, one keypad cellphone fro A7, Cash of Rs.990/-, one Honour 10 phone from A8. He further says that he has seized cash of Rs.2,000/- which is present in the center on the mat where the accused sat. Totally he has seized

Rs.18,300/- from A1 to A8, 7 cellphones, 5 bike keys along with 52 playing cards from the possession of the accused. He has totally seized Cash of Rs.20,300/-.

12.PW.3 further says that he made the said seizure under the cover of mediator report duly scribed by T.Sadasivarao (Lw.7). In support of his contention the prosecution got marked the said mediator report as Ex.P3,

Search warrant as Ex.P2. The prosecution also marked the material objects i.e.

cash of Rs.20,300/- as M.O.1, TVS XL Moped bearing NO.AP37-AF-2556 as

M.O.2, Unicorn motorcycle bearing No.AP37-DF-4022 as M.O.3, Suzuki

Motorcycle bearing NO.AP37-DP-4860 as M.O.4, Hero Splendor Pro Motorcycle bearing No.AP37-DP-4860 as M.O.5, Honda Activa Motorcycle Bearing No.AP37-

BR-6820 as M.O.6 Four Samsung Smart phones as M.O.7, One Vivo V-11

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C.C.No.1025/2019

cellphone as M.O.8, One Cellkon Keypad phone as M.O.9, One Honor Smart phone as M.O.10, 52 Playing Cards as M.O.11. He further says that thereafter he returned to the police station and basing on Ex.P3 mediator report, he registered this case and conducted the investigation b visiting the scene of offence, prepared rough sketch of the scene and examining the police constables who accompanied to the said raid. In support of his contention, the prosecution got marked the FIR as Ex.P4 and Rough sketch as Ex.P5.

13.To support the evidence of PW.3, the prosecution examined one of the mediators as PW.2. but the mediator turned hostile to the case of the prosecution. He says that three years ago one day he went to the police station on his personal work, there he informed the police that he not driving. Then at evening hours he along with the police went to Turpu Veedhi, Eluru. There the police got down from the zeep and went by walk into a street of cement road and he stayed near the police zeep and after one hour, the police returned along with one lady and 3 or 4 male persons and they were taken to the police station in Auto. He says that he cannot identify the persons as the incident happened. He says that there the police obtained a signature on empty white paper by informing that he would get his no objection certificate for running his security agency. The said evidence shows that he did not act as a mediator to the said raid and he was not present when the police said to have seized the said property from the possession of the accused persons.

14.The prosecution examined one of the constable who said to have accompanied with PW.3 to the said raid as PW.2. PW.2 corroborated to the evidence of PW.3 in all material particulars. To prove the offence under section 3 of AP Gaming Act, the prosecution has to prove that “ A1 keeps or uses or permits to be used any common gaming house or conducts or assists in conducting the business of any common gaming house or advances or furnishes money for gaming thereon shall be punished.”

15.In this case PW.3 came to know through the confession of A1 that,

A1 is the owner of the said building. But under section 25 of Indian Evidence

Act, a confession made before a police officer is not relevant, hence the said fact cannot be considered. The police did not produce any document before this

Court to say that A1 is the owner of the said building. Except the said confession of A1, there is no material on record to say that A1 is the owner of the said building and he is organizing the said game for betting in his house. Since the

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C.C.No.1025/2019

prosecution failed to prove that A1 is the house owner of the scene of offence building and he arranged the said game in his house, so all the accused playing betting in the said building with the permission of A1 does not arise. Since the prosecution failed to prove the offence under section 3 of AP Gaming Act, which also failed to prove the offence under section 4 of AP Gaming Act. Therefore this

Court is of the view that the prosecution failed to prove that the prosecution failed to prove the guilt of A1 to A8 for the offence under section 3 and 4 of AP

Gaming Act.

16. IN THE RESULT, Accused No.1 to 8 are found not guilty for the offence punishable offence under Section 3 and 4 of AP Gaming Act and they are acquitted under section 248(1) of Cr.P.C.

The material objects i.e. MO.1 Cash of Rs.20,300/- shall be confiscated to state after expiry of appeal time. M.O.2 TVS XL Moped bearing NO.AP37-AF- 2556, M.O.3 Unicorn motorcycle bearing No.AP37-DF-4022, M.O.4 Suzuki

Motorcycle bearing NO.AP37-DP-4860, M.O.5 Hero Splendor Pro Motorcycle bearing No.AP37-DP-4860, M.O.6 Honda Activa Motorcycle Bearing No.AP37-BR- 6820, M.O.7 Four Samsung Smart phones, M.O.8 One Vivo V-11 cellphone,

M.O.9 One Cellkon Keypad phone and M.O.10 One Honor Smart phone, which are already returned to the accused for interim custody, shall be made absolute after expiry of appeal time. M.O.11 52 Playing Cards destroyed after expiry of appeal time.

Typed to my dictation by Stenographer, corrected and pronounced by me in Open Court on this the 11 th day of November, 2022.

II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

ELURU.

APPENDIX OF EVIDENCE

FOR PROSECUTION FOR ACCUSED

PW.1: M.Venkateswara Rao.NIL.

PW.2: S.V.R.Siva Kumar Naidu.

PW.3: Y.Bala Rajaji.

EXHIBITS MARKED

FOR PROSECUTION

Ex.P1:Signature of PW.2.

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C.C.No.1025/2019

Ex.P2:Search warrant Dt.28.07.2019

Ex.P3: Mediator report Dt.28.07.2019 at 4.30 PM.

Ex.P4:FIR.

Ex.P5:Rough Sketch.

FOR ACCUSED:

NIL

MATERIAL OBJECTS MARKED

MO.1 cash of Rs.20,300/-.

M.O.2 TVS XL Moped bearing NO.AP37-AF-2556.

M.O.3 Unicorn motorcycle bearing No.AP37-DF-4022.

M.O.4 Suzuki Motorcycle bearing NO.AP37-DP-4860.

M.O.5 Hero Splendor Pro Motorcycle bearing No.AP37-DP-4860.

M.O.6 Honda Activa Motorcycle Bearing No.AP37-BR-6820.

M.O.7 Four Samsung Smart phones.

M.O.8 One Vivo V-11 cellphone.

M.O.9 One Cellkon Keypad phone.

M.O.10 One Honor Smart phone.

M.O.11 52 Playing Cards.

II AJFCM, ELURU.

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C.C.No.1025/2019

CALENDAR AND JUDGMENT

WEST GODAVARI DISTRICT

Calendar Case No.1025/2019 tried by the II Additional Judicial Magistrate of I Class, Eluru.

DATE OF

OffenceComplaintApprehensionRelease onCommencClose ofSentence of or reportof Accusedbailement oftrialOrder trial 28.07.201928.07.2019Sec.41ASec.41A07.01.202001.11.202211.11.2022 Cr.P.C. Notice Cr.P.C. Notice Explanation for the delay: No such unavoidable delay. Complainant: The Sub-Inspector of police, Eluru I Town Police Station. Cr.No.184/2019 of Eluru I Town P.S.

1.Nandiwada Jaya Sagar, S/o Rama Lingeswara Rao, Aged 34 Years, C/Vaddeelu, Dr.No.7B-12-14, Eastern Street, Eluru.

2.Dasari lakshmana Rao, S/o Satyam, Aged 57 Years, Surya Balija, Sastri Colony, Venkatapuram, Eluru.

3.Nandiwada Jayalakshmi, W/o Radha Krishna, Aged 52 Years, C/Vaddeelu, Near Baba Saheb House, Eastern Street, Eluru.

4.Mailavarapu Benhar Rama Eswar, S/o Prabhakara Rao, Aged 32 Years, C/Kapu, Southern Street, Eluru.

5.Yerra Rajesh, S/o Nageswara Rao, Aged 38 Years, C/Devangula, Near Vinayaka Temple, Eastern Street, Eluru.

6.Kuppili Hanumanthurao, S/o Ramu, Aged 32 Years, C/Rajaka, Vinayak Nagar, Chataparru Road, Eluru.

7.Manchina Krishna Mohan, S/o Satyanarayana, Aged 38 Years, C/Kamma, Near Saibaba Temple, Eastern Street, Eluru.

8.Batlanki Rohith, S/o Satya Sai Baba, Aged 22 Years, C/Vaddeelu, Behind Papasaheb Building, Eastern Street, Eluru. …. Accused No.1 to 8. ------------------------------------------------------------------------------------------------- Offences : Under Sec. 3 and 4 of AP Gaming Act Finding :Found not guilty. RESULT: IN THE RESULT, Accused No.1 to 8 are found not guilty for the offence punishable offence under Section 3 and 4 of AP Gaming Act and they are acquitted under section 248(1) of Cr.P.C. The material objects i.e. MO.1 Cash of Rs.20,300/- shall be confiscated to state after expiry of appeal time. M.O.2 TVS XL Moped bearing NO.AP37-AF-2556, M.O.3 Unicorn motorcycle bearing No.AP37-DF-4022, M.O.4 Suzuki Motorcycle bearing NO.AP37-DP-4860, M.O.5 Hero Splendor Pro Motorcycle bearing No.AP37-DP-4860, M.O.6 Honda Activa Motorcycle Bearing No.AP37-BR-6820, M.O.7 Four Samsung Smart phones, M.O.8 One Vivo V-11 cellphone, M.O.9 One Cellkon Keypad phone and M.O.10 One

Honor Smart phone, which are already returned to the accused for interim

custody, shall be made absolute after expiry of appeal time. M.O.11 52 Playing Cards destroyed after expiry of appeal time.

II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS

ELURU.

* 1 *

CC.No524/2019

IN THE COURT OF II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS : ELURU

Present : Ms.Prameela Rani,

II Additional Judicial Magistrate Of I Class, Eluru.

Tuesday, this the 18th day Of October, 2022.

C.C.No.524/2019

BETWEEN : The State : Rep. By Sub-Inspector of police, Eluru III Town Police Station, Eluru. … Complainant. A N D

1.Tattikolla Venkata Ramarao @ Subbarao, Aged 29 Years, C/Yadava, Thummalapalli Village, Nandivada Mandal, Krishna District.

2.Naladi Murthy Raju, S/o Santhayya, Aged 40 Years, C/SC-Mala, Kadimikunta Village, Pedapadu Mandal. …. Accused No.1 and 2.

This case is coming on 14.10.2022 before me for final hearing in the presence of

Senior Assistant Public Prosecutor for the complainant and Sri M.V.N.Raju, Advocate for Accused NO.1 and Sri J.V.Ramanarao, Advocate for Accused No.2, and having stood over for consideration to this day, this court delivered the following:

J U D G M E N T

1.The Sub-Inspector of police, Eluru III Town police station has laid charge sheet in Cr.No.45/2019 against Accused No.1 and 2 alleging them for the offence under Section 304-A, 337 of IPC.

2. The brief facts of the prosecution case are that :

On 10.02.2019 at about 8 AM Madepalli Devendra Babu (LW.1), Naladi Arun

Raju @ Arjun Rajesh (LW.2), Naladi vijaya Kumar @ Chandu (LW.3) and the deceased Mondru Siva Krishna started their journey from Kadimikunta Village on tractor bearing No.AP37-TF-0515 and Truck bearing No.AP16-AM-9720 with dry grass load which was driven by A2 and proceeding to Rayannapalem for its unload. Madepalli Devendra Babu (LW.1), Naladi Arun Raju @ Arjun Rajesh (LW.2),

Naladi vijaya Kumar @ Chandu (LW.3) and the deceased Mondru Siva Krishna were sat on the dry grass load on the truck and when they reached near

Duggirala bridge after crossing Bus stop which is under construction, in the meanwhile the accused No.1 being the rider of crime vehicle i.e. Lorry bearing

No.AP37-TE-6966 proceeding behind the above tractor drove his lorry in a rash and negligent manner with high speed and dashed tractor and truck from back side, as a result LW.1 to 3 and the deceased fell down on the road and Madepalli

Devendra Babu (LW.1) sustained injury on his right ankle and the deceased

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CC.No524/2019

Mondru Siva Krishna sustained injury on the back side of his head, and the driver of the tractor jumped from the tractor and survived and that Madepalli Devendra

Babu (LW.1) and the deceased shifted to Government Hospital, Eluru, from there the deceased was shifted to Help Hospital, Vijayawada for expert treatment.

Basing on hospital intimation and statement of Madepalli Devendra Babu (LW.1), the Sub-Inspector of Police, Eluru III Town PS (LW.14) registered the case in

Cr.No.45/2019 for the offence under sections 337 of IPC on 13.02.2019 at 11 AM and conducted the investigation in this case. While undergoing treatment the deceased succumbed to injuries on 14.02.2019 at 2 PM and basing on the death intimation, the SI of Police (LW.14) altered the section of law from 337 IPC to 304-

A, 337 of IPC and continued further investigation.

During the course of investigation, the Sub-Inspector of Police (LW.14) visited the scene of offence, examined the scene, prepared rough sketch of the scene at the scene and the mediators got drafted scene observation report and from there he went to Government General Hospital, Eluru and conducted inquest over the body of the deceased in the presence of Panchayatdars and blood relatives of the deceased and later he examined the injured and recorded his statement and conducted Autopsy over the dead body of the deceased and issued PM Certificate of the deceased, and the Motor Vehicle Inspector inspected the crime vehicle and issued MVI report and later he issued section 41-A Cr.P.C.

notice to the accused. After completion of investigation, the SI of Police (LW.14) filed charge sheet against the accused. Hence the charge.

3. This Court took cognizance of this case against accused No.1 and 2 for the offence under Section 304-A, 337 of IPC and issued summons to Accused No.1 and 2. On appearance of Accused No.1 and 2, copies of case documents were furnished to them as contemplated under Sec.207 Cr.P.C.

4.Accused No.1 and 2 were examined under Sec.251 Cr.P.C by explaining the substance of accusation leveled against them for the offence under Section 304-

A, 337 of IPC against A1 and section 184, 181 r/w 3 of MV Act against A2, for which, they denied the offence and claimed to be tried.

5.During the course of trial, in order to prove this case, the prosecution examined P.W.1 to 5, and got marked Ex.P1 to P6. The details of which are mentioned at the appendix of evidence.

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CC.No524/2019

[[6. After closure of evidence on the side of the prosecution, accused were examined under Sec.313 Cr.P.C., for the incriminating evidence found in the hands of the prosecution witnesses, the accused denied the same and reported no defence evidence on their behalf.

7.Heard learned APP and also the learned defence counsel physically.

8. Now the point for determination is

(i) “Whether the deceased and PW.1 met with an accident on

10.02.2019 caused by a Lorry bearing No.AP37-TE-6966 at

Duggirala Bridge which is under construction after crossing bus

stop, beyond all reasonable doubt”?

(ii) “Whether PW.1 sustained simple injuries on the said accident and

whether the deceased succumbed to injuries on 14.02.2019 at Help

Hospital, Vijayawada.

(iii) “If so, whether the accused is the driver of the crime vehicle at the time of accident, beyond all reasonable doubt?”

(iv) “ If so, whether the accused drove the crime vehicle in a rash or

negligent manner and caused the accident, beyond all reasonable

doubt?”

P O I N T S No.i to iv :-

9.To prove the said fact the prosecution relied upon the evidences of PW.1 to

PW.5. Pw.1 who is the injured and eye witness to the said accident. In his evidence he says that 3 years ago one day while he is going on his Honda Unicorn

Motorcycle whose member he does not remember, from his village Kadimikunta to his sisters house at Nuziveedu and when he reached Hanuman Junction he slipped from his motorcycle and fell down. Then he sustained fractured injury to his right leg, then he shifted to Government Hospital, Eluru. There he came to know that the deceased Siva Krishna also met with an accident and died due to the accident, but he does not know how the said accident occurred. He says that when he is present in the hospital, the police obtained his signature on a written paper, but he does not know its contents, as he is an illiterate. In support of his contention, the prosecution got marked the signature on the alleged statement as

Ex.P1. He says that police never examined him.

10. The prosecution examined PW.2 and PW.4 who are said to be eye witnesses to the said accident. But they turned hostile to the case of the prosecution. Though the learned APP cross examined after treating them as hostile, no material is elicited which helps the case of the prosecution.

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CC.No524/2019

11.The prosecution examined PW.3 who is said to be present at the time of conducting inquest by the police. PW.3 in his evidence he says that the deceased is his elder brother’s son and he died in an accident on 10.02.2019. He says that on 10.02.2019 when he is present in the fields at about 12 PM he came to know through a person who work along with the deceased that the deceased met with an accident and he was shifted to Government Hospital, Eluru and further he was shifted to Government Hospital, Eluru and further he was shifted to

Government Hospital, Vijayawada. On knowing the same he along with M.Santa

Kumari (LW.4) M.Giri Krishna (LW.5), M.Naga Jyothi (LW.7) went to Government

Hospital, Vijayawada, there they found the deceased undergoing treatment, but he is not in conscious state and after two days the deceased succumbed to injuries. He came to know that the deceased sustained injuries to his brain. He did not find any external injuries. Though he is cross examined by the learned AP, no material is elicited which helps the case of the prosecution.

12.PW.5 who is the inquest panchayatdar, in his evidence he says that no 15.02.2019 at the request of II Town PS, eh went to Government Hospital,

Vijayawada to act as a mediator for the inquest and there the police held inquest on the body of the Mondru Siva Krishna who died in an accident. He along with other two persons acted as mediators and during the inquest they opined that the deceased died due to the injuries sustained in the accident. He says that he scribed the said inquest report. In support of his contention the prosecution got marked the inquest report as Ex.P6.

13.From the evidence of PW.1, PW.3 and PW.5, it shows that the deceased met with an accident and he died on 15.02.2019 due to the injuries sustained in the accident. The evidence of PW.1 also shows that he sustained fractured injuries on his right leg, but there is no material on record to say that the said injury is caused in an accident. The evidence of PW.1 only shows that he sustained the said injury by himself as he fell down from his motorcycle as motorcycle slipped. There is no material on record to say that the crime vehicle bearing No.AP37-TE-6966 caused the said accident. From the evidences of PW.1 to PW.5, it nowhere shows that the crime vehicle bearing No.AP37-TE-6966 caused the said accident.

14.The learned APP closed the evidences of other witnesses as the material witnesses i.e. the injured and eye-witness turned hostile to the case of

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CC.No524/2019

the prosecution. As there is no material on record to say that PW.1 sustained the said injury and the deceased died in the accident caused by the crime vehicle bearing No.AP37-TE-6966. The fact of accused driving the crime vehicle at the time of the accident in a rash or negligent manner does not arise. Therefore this

Court is of the view that the prosecution failed to prove the guilt of the accused for the offence under section 304-A and 337 of IPC and section 184, 181 r/w 3 of

MV Act beyond all reasonable doubt.

15. IN THE RESULT, Accused No.1 is found not guilty for the offence punishable offence under Section 304-A, 337 of IPC and Accused No.2 is found not guilty for the offence punishable under section 184, 181 r/w 3 of MV Act, and they are acquitted under section 255(1) of Cr.P.C.

Dictated to Stenographer Gr.III, transcribed by her, corrected and pronounced by me in

Virtual Court on this the 18 th day of October, 2022.

II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

ELURU.

APPENDIX OF EVIDENCE

FOR PROSECUTION FOR ACCUSED

PW.1: M.Devendara.NIL.

PW.2: N.Arun Rajesh.

PW.3: M.Achiyya.

PW.4: N.Vijaya Kumar.

PW.5:V.Venkata Satyanarayana Rao.

EXHIBITS MARKED

FOR PROSECUTION

Ex.P1: Signature of PW.1.

Ex.P2:Section 161 Cr.P.C. Statement of PW.1.

Ex.P3Section 161 Cr.P.C. Statement of PW.2.

Ex.P4:Section 161 Cr.P.C. Statement of PW.3.

Ex.P5:Section 161 Cr.P.C. Statement of PW.4.

Ex.P6:Inquest report.

FOR ACCUSED:

NIL

MATERIAL OBJECTS MARKED

NIL.

II AJFCM, ELURU.

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CC.No524/2019

CALENDAR AND JUDGMENT

WEST GODAVARI DISTRICT

Calendar Case No.524/2019 tried by the II Additional Judicial Magistrate of I Class, Eluru.

DATE OF

OffenceComplaintApprehensionRelease onCommencClose ofSentence of or reportof Accusedbailement oftrialOrder trial 15.02.201915.02.2019Sec.41-ASec.41-A04.01.202214.10.202218.10.2022 Cr.P.C. NoticeCr.P.C. Notice

Explanation for the delay: No such unavoidable delay.

Complainant: The Sub-Inspector of police, Eluru III Town Police Station.

Cr.No.45/2019of Eluru III Town P.S.

1.Tattikolla Venkata Ramarao @ Subbarao, Aged 29 Years, C/Yadava, Thummalapalli Village, Nandivada Mandal, Krishna District.

2.Naladi Murthy Raju, S/o Santhayya, Aged 40 Years, C/SC-Mala, Kadimikunta Village, Pedapadu Mandal. …. Accused No.1 and 2. ------------------------------------------------------------------------------------------------- Offences : Under Sec.304-A, 337 of IPC& Sec.184, 181 r/w 3 of MV Act.

Finding :Found not guilty.

RESULT: IN THE RESULT, Accused No.1 is found not guilty for the offence punishable offence under Section 304-A, 337 of IPC and Accused No.2 is found not guilty for the offence punishable under section 184, 181 r/w 3 of MV Act, and they are acquitted under section 255(1) of Cr.P.C.

// Sd/- M.PRAMEELA RANI //

II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS

ELURU.

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C.C.No412/2020

IN THE COURT OF II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS : ELURU

Present : Ms.M.Prameela Rani II Additional Judicial Magistrate Of I Class, Eluru. Friday, this the 18th Day Of November, 2022.

C.C.No.412/2020

BETWEEN : The State : Rep. By Sub-Inspector of police, Eluru Women Police Station. … Complainant. A N D Metlapalli Venkateswara Rao, S/o Pullaiah, Aged 39 Years, C/Rajaka, Attender, Consumer Court, Yetigattu, Eluru. …. Accused. This case is coming on 15.11.2022 before me for final hearing in the presence of Senior Assistant Public Prosecutor for the complainant and Sri P.Prasadarao, Advocate for Accused and having stood over for consideration to this day, this court delivered the following:

J U D G M E N T

1.The Sub-Inspector of police, Eluru Women police station has laid charge sheet in Cr.No.65/2019 against Accused alleging him of the offences under

Section 498-A, 506 of IPC.

2. The brief facts of the prosecution case are that :

The marriage of Metlapalli Padmavathi (LW.1) was performed with the Accused on 24.11.2004 as per their caste customs and traditions and at the time of their marriage on the demand made by the accused, her parents gave an amount of Rs.50,000/-, 10 sovereigns of gold ornaments and Rs.10,000/- worth of Paraphernalia as dowry. After the marriage they lead their conjugal life amicably and happily and blessed with a female child. Later the Accused along with his mother and sister started harassing her both physically and mentally and subjected her cruelty, and failed to look after her welfare and abused her in filthy language, on that she filed a report in Women PS, Eluru in Cr.NO.29/2008 and the same was compromised as the accused promising that he has to look after her welfare, then they started conjugal life at Ramakrishnapurm, Eluru.

But the accused failed to stand on his words and continued harassment and tortured her. On that she went to her parents house and again the elders pacified the said matter and lead matrimonial home in the year 2011 and later the accused addicted to bad vices and used to come to house in late nights.

While the matter stood thus on 27.11.2018 night the accused came to house in inebriated state and altercated with her and taken away the household articles and went away from their house and as there is no other go she gave report to police.

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C.C.No412/2020

Basing on the said report, the SHO, Eluru Women police station registered this case for the offence under section 498-A, 506 of IPC against Accused and conducted the investigation by going to the scene of offence. During the course of investigation, the SI of police, Eluru Women PS examined the scene of offence and prepared rough sketch of the scene and recorded the statements of the witnesses at the scene of offence and served section 41-A Cr.P.C. notice to

Accused. After completion of the investigation he filed the Charge sheet against the Accused for the offence under sections 498-A of IPC and section 4 of Dowry

Prohibition Act. Hence the charge.

3. My learned Predecessor took cognizance of this case against accused for the offence under Section 498-A, 506 of IPC and issued summons to Accused.

On appearance of Accused, copies of case documents were furnished to him as contemplated under Sec.207 Cr.P.C.

4.Accused was examined under Sec.239 Cr.P.C., and charges framed for the offence under Sections 498-A, 506 of IPC against Accused read over and explained to him in Telugu, for which, he pleaded not guilty and claim to be tried.

5.During the course of trial, in order to prove this case, the prosecution examined P.W.1, and got marked Ex.P1 and Ex.P2. The details of which are mentioned at the appendix of evidence.

[[6. After closure of prosecution side evidence, as there is no incriminating material existing against Accused, to conduct examination under Sec.313

Cr.P.C. Hence sec. 313 Cr.P.C. examination dispensed with.

7.Now the point for determination is:

“Whether the prosecution proved the guilt of Accused for the

offence punishable under sections 498-A, 506 of IPC, beyond all

reasonable doubt?”

P O I N T

8.To prove the said charge the prosecution examined PW.1, PW.1 in her evidence she says that her marriage was performed with the Accused on 24.11.2004 in Sri Venkateswara Swamy Temple, Dwaraka Tirumala and after marriage she went to matrimonial home at Yetigattu, Vidya nagar, Eluru and she used to live along with her husband, her mother-in-law and her sister-in-law for

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C.C.No412/2020 some time and after that she along with her husband lived separately and during their wedlock, they were blessed with two girl child. She further says that four years ago, some disputes arose between her and her husband and the accused beat her, as such she left the house of the accused and reached her parents house and her parents placed the matter before elders and at that time their elders obtained her signature on a typed paper, but she does not know its contents. She identified her signature on the alleged report given to the police.

The prosecution got marked the said signature as Ex.P1.

The learned APP cross examined PW.1 and after treating her as hostile and in her cross examination it is elicited that she has compromised the case with the accused with the instance of elders.

10. From the evidence of PW.1 it shows that her marriage is performed with

Accused and after her marriage she went to her matrimonial home and blessed with two daughters and there some disputes arose between her and her husband and as such she left the house of the accused and reached her parents house along with her children, and there her parents placed the matter before the elders and they obtained her signature on a typed paper and she does not know the contents in it. From the cross examination of PW.1 by the learned APP it shows that she has compromised the case with all the accused at the instance of elders. May be in view of the said compromise, PW.1 turned Hostile to the case of the prosecution in order to facilitate the accused to get an Acquittal in this case. Except the evidence of PW.1, there is no any other evidence on record, as learned APP gave up the evidences of all the remaining witnesses as

PW.1 turned Hostile to the case of the prosecution, by compromising the case with the accused. Therefore there is absolutely no material on record to show that the accused committed the said offences.

In view of the above discussion, this Court is of the view that the prosecution failed to prove the guilt of the Accused for the charges under section 498-A, 506 of IPC, beyond all reasonable doubt.

11. IN THE RESULT, Accused is found not guilty for the offence punishable under Sections 498-A, 506 of IPC, thereby Accused is acquitted under

Sec.248(1) Cr.P.C.

Typed to my dictation by Stenographer Gr.III, corrected and pronounced by me in Open Court on this the 18 th day of November, 2022.

II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

ELURU.

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C.C.No412/2020

APPENDIX OF EVIDENCE

FOR PROSECUTION FOR ACCUSED

PW.1: Metlapalli Padmavathi. NIL

EXHIBITS MARKED

FOR PROSECUTION

Ex.P1:Signature of PW.1 on report.

Ex.P2:Sec. 161 Cr.P.C. statement of PW.1.

FOR ACCUSED:

NIL

MATERIAL OBJECTS MARKED

NIL

II AJFCM, ELURU.

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C.C.No412/2020

CALENDAR AND JUDGMENT

WEST GODAVARI DISTRICT

Calendar Case No.412/2020 tried by the II Additional Judicial Magistrate of I Class, Eluru.

DATE OF

OffenceComplaintApprehensionRelease onCommenceClose ofSentence of or reportof Accusedbailment of trialtrialOrder 20.07.201920.07.2019Sec.41-A Cr.P.C.Sec.41-A11.11.202215.11.202218.11.2022 NoticeCr.P.C. Notice

Explanation for the delay: No such unavoidable delay.

Complainant: The Sub-Inspector of police, Eluru Women Police Station.

Cr.No.65/2019of Eluru Women P.S.

Metlapalli Venkateswara Rao, S/o Pullaiah, Aged 39 Years, C/Rajaka, Attender, Consumer Court, Yetigattu, Eluru.

…. Accused. ------------------------------------------------------------------------------------------------- Offences : U/Sec.498-A, 506 of IPC.

Finding :Found not guilty.

RESULT: IN THE RESULT: Accused is found not guilty for the offence punishable under Sections 498-A, 506 of IPC, thereby Accused is acquitted under Sec.248(1) Cr.P.C.

II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS

ELURU.