Sri M Suvarna Raju

Fair Judgment in CA No. 151 of 2017

IN THE COURT OF THE ADDL METROPOLITAN SESSIONS JUDGE FOR THE

TRIAL OF JHCBBC-CUM-IX ADDL. METROPOLITAN SESSIONS JUDGE

HYDERABAD

Wednesday the 08 th day of August 2018.

Present: Sri MOKA SUVARNA RAJU Addl. Metropolitan Sessions Judge for the trial of JHCBBC-cum-IX Addl Metropolitan

Sessions Judge, Hyderabad.

CRIMINAL APPEAL NO. 151 OF 2017

From what court this appeal is preferred:XI Special Magistrate, Hyderabad.

Case Number in that court C.C.No. 427 of 2015

Criminal Appeal Number Crl. A.No. 151 of 2017

Name and description of theMir Altaf Ali Abedi, S/o.Late Mir Lutfe Ali, Appellant/Accusedaged about 52 years, Occ:not known, R/o.H.No.22030638/1/6, Mir Alam Mandi, Charminar,Yakutpura, Hyderabad.

Name and description of the RespondentM/s.Asgar Gold Workshop, H.No.22-5- 284 & 285, beside Syndicate Bank, Kali KamanRoad,GulzarHouse, Hyderabad. A partnership firm represented by its Managing partner Sri.Ali Hyder, S/o.Mustaq Hussain @ Ashu, aged 32 years, Occ:Business Hyderabad.

The law and sentence under which theAccused was sentenced to undergo R.I appellant was convicted before the lowerfor one year and to pay an amount of court.Rs.6,75,000/-ascompensation u/s.357(3) of Cr.P.C to the complainant within one month from today, in default S.I for 4 months for the offence u/s.138 of N.I.Act. Whether confirmed, modified or reversed As a result, the appeal is dismissed, and if modified, the modificationconfirming the judgment and conviction and the sentence imposed thereon against the accused by the Trial Court in C.C.No.427 of 2015 (old CC No.882 of 2015). The Office is directed to return the case file to the learned XI Special

Magistrate Court, Hyderabad to get the

accused to carry out the sentence imposed.

Fair Judgment in CA No. 151 of 2017

DATE ON WHICH

Presentation of Appeal 13-02-2017 Filing of Appeal 13-02-2017 Notice issued to respondent to appear 14-02-2017 First appearance of Appellant 14-03-2017 Hearing of Appeal 25 -07-2018 Judgment in the Appeal 08-08-2018

This Criminal Appeal is coming on for hearing before me, and upon perusing the grounds of appeal, lower court record, and considering the arguments of M/s.Bandi Varaprasada Advocate for the Appellant/Accused and Mr.M.V.Ramana Advocate for the Respondent /Complainant and the matter having stood over for consideration, this Court has delivered the following :

JUDGMENT

1.This appeal has been preferred by the Accused challenging the conviction and sentence imposed against him for the offence under Section 138 of the

Negotiable Instruments Act, by the XI Special Magistrate, Hyderabad in C.C

No.427 of 2015 (Corresponding old C.C No.882 of 2015).

2. The brief averments of the Complaint that led to the conviction are:

that the Complainant is a Partnership concern, carrying on the business of manufacture and sale of Jewellery; that the Accused had approached the

Complainant and purchased Gold ornaments as below:

S.No. Bill No. Date Cost

01.23801.04.2015Rs.2,00,000/-

02.24104.04.2015Rs.2,00,238/-

03.24310.04.2015Rs.2,00,696/-

It has been further pleaded that the Accused had issued three Cheques bearing

Nos.219943, 219944 and 219945 each for Rs.2,00,000/- totaling to Rs.6,00,000/-, drawn on State Bank of India Spl. P.B.B., Rajbhavan Road, Hyderabad infavour

Fair Judgment in CA No. 151 of 2017 of the Complainant being the purchase price; that the three Cheques were presented in M/S Syndicate Bank, Pathergatty Branch, Hyderabad on 13.04.2015 but they were dishonoured on 22.04.2015; that the Complainant thereafter contacted the Accused and informed about the dishonour and thereby the Accused had given an Undertaking on 26.04.2015 and promised to arrange funds; that thereafter, the Complainant had presented the Cheques on 09.06.2015 but the same were dishonoured for the same reason; that the Complainant got issued a

Legal Notice to the Accused on 03.7.2015; that since the Accused did not make payment, the Complainant had presented the Complaint.

3. The learned XI Special Magistrate had conducted enquiry and convicted the

Accused sentencing him to suffer Rigorous Imprisonment for one year and to pay a compensation of Rs.6,75,000/-, in default to undergo Simple Imprisonment for a period of four months.

4. The Appellant has filed this Appeal under Section 374 of Cr.P.C

challenging the conviction and the sentence imposed thereon with the

following Grounds of Appeal:

1. that the learned Magistrate should have considered and appreciated the admissions made by the Pws 1 and 2 which goes to the root of the case;

2. that the trial Court should have appreciated that the Complainant who claims to be the Managing Partner of the Complainant’s Firm has not filed any authorization from the other Managing Partner who was examined as PW2;

3. that the trial Court has grossly erred in appreciating the proposition envisaged in M.M.T.C Limited Vs. Medchal Chemicals and Pharma (P) Limited (2002 (1) A.L.D (Crl.) 585;

4. that the trial Court has failed to understand Clause-8 of the Partnership Deed dated 01.04.2012;

Fair Judgment in CA No. 151 of 2017

5. that the trial Court should have understood the proposition laid down in Y.Venkata Reddy Vs. Jagadamba Enterprises, Hyderabad (2002 (1) ALT (Crl.) 344 A.P; 6. that the trial Court should have seen that the Complaint is barred by limitation as the Complaint was not filed with in a period of one month after receipt of Legal Notice;

7. that the trial Court should have observed that the Undertaking Letter

dated 26.4.2015 (Ex.P4) is a rank forged one;

8. that the trial Court should have seen that the Exs.P1 to P3 are Cash- Memos but not the Bills of purchase and they are as good as Receipts;

9. that the trial Court should have seen that the preponderance of probabilities are very much in favour of the Appellant only etc.,

5.The parties herein did not let in any additional evidence in this Appeal.

Heard the arguments of both the Counsel.

6. Now I formulate the following points for determination to dispose of the appeal :

1. Whether Mr.Ali Hyder the Managing Partner of the Complainant

was competent enough to file the Complaint and depose evidence in the

transaction concerned in this case ?

2. Whether there was valid service of the Legal Notice ?

3. Whether the Complaint is barred by limitation ?

4. Whether the Accused No.2 had issued the Cheque in question to the Complainant in discharge of a legally enforceable debt?

5. Whether the judgment passed by the learned XI Special Magistrate, Hyderabad suffers from illegality or perversity, if so, the same is liable to be interfered?

7. (a). Finding on Point No.1: The Managing Partner Mr. Ali Hyder was competent enough to file the Complaint and depose evidence in the transaction concerned in this case.

(b). Finding on Point No.2: There is valid service of Legal Notice.

(c). Finding on Point No.3: The Complaint is within the Law of Limitation.

Fair Judgment in CA No. 151 of 2017

(d). Finding on Point No.4: The Accused No.2 had issued the Cheque in question to the Complainant in discharge of a legally enforceable debt.

(e). Finding on Point No.5: There is no illegality or perversity in the Judgment of the learned XI Special Magistrate, hence and the same is to be confirmed.

8. Reasons for my finding on Point No.1: (8.1) The Complaint was filed by

M/S Asgar Gold Workshop a Partnership Firm, represented by it’s Managing

Partner Mr. Ali Hyder. On behalf of the Complainant, Mr. Ali Hyder had deposed evidence as PW1 in the capacity of its Managing Partner. It was elicited during the cross-examination that the Complainant’s Firm has six Partners including the

PW1. It was also elicited that there is another Managing Partner by name Ali

Azgar. According to Clause No.8, both the Managing Partners are authorized to sign the documents on behalf of the Firm. The defence of the Accused in the trial as well as in this Appeal is that the Complaint is not maintainable since the PW1 was not authorized by the other Managing Partner. The learned Special

Magistrate, having relied upon the judgments in

1. M.M.T.C Limited Vs. Medchal Chemicals and Pharma Ltd., (2002 (1) ALD (Crl.) 585 S.C

2. Associated Cement Company Limited Vs.Kesavanand (1998 (1) SCC 687)

3. Milind Shripad Chandurkar Vs. Kalim M. Khan & Another (Criminal Appeal No.643 of 2011)

4. Swastik Coaters Pvt., Ltd., Vs. Deepak Brothers and others (A.P High Court)

5. MSR Leathers Vs. S.Palaniappan and Another

6. Yogendra Pratap Singh Vs. Savitri Pandey & Another

7. Kamlesh Kumar Vs. State of Bihar & Another

8. Y.Venkat Reddy Vs.Jagadamba Enterprises, Hyderabad - andheld as below - “from Clauses 8 and 11 of Ex.D1 (Partnership Deed), it can

be safely concluded that the PW1 has the implied and also required

Fair Judgment in CA No. 151 of 2017

authorization to act on behalf of the Complainant Company to represent it in

the present case before the Court against the Accused person ”. The learned

Special Magistrate has further observed that “the remaining Managing

Partner i.e., the PW2 or Partners of the Complainant never expressly or

impliedly disrobed the PW1 from the capacity of Managing Partner of the

Complainant, nor has disowned his acts in representing it during the hearing of

the present case before the Court or prior to it”.

Now I look into Clause 8 of the Partnership Deed which reads as under: “that the

First Partner & Second Partner Mr.Ali Asgar shall be the Managing Partners

of the Firm and they are authorized on behalf of the Firm to sign documents,

agreements and all important papers etc., for the business of the Firm and to do

all things necessary in discharging or the above acts for the smooth running

the day to day affairs of the business of the Firm”.The second Managing

Partner Mr.Ali Asgar was examined as PW2. Though he deposed in the cross- examination that he did not give any authorization to his brother the PW1 to prosecute this case, did not contend that his authorization is required to prosecute the Accused and that the PW1 is not competent to prosecute the Accused.

(8.2) A plain reading of Clause 8 of the Partnership Deed shows that there shall be two Managing Partners having equal powers to sign the documents of the

Company and to do the required for the smooth functioning of the Company. If the intention of the Partners, while entering into Partnership, was that both the

Managing Partners shall jointly sign the documents or do the activities jointly, they should have recited in the Partition Deed that both the Managing Partners shall jointly sign the documents or do the activities jointly. The very object in designating two Partners as Managing Partners is that each Managing Partner can act individually. The detailed reasoning given by the learned Special Magistrate is in correct perspective and there is nothing to take a contra view. Thus, I hold that

Fair Judgment in CA No. 151 of 2017 the PW1 being one of the Managing Partners of the Complainant Firm was competent enough to file the Complaint and depose evidence.

9. Reasons for my findings on Point No.2: (9.1) The PW1 has deposed that after bouncing of the Cheques vide Cheque Return Memo Dt:17.06.2015, he got issued a Legal Notice to the Accused on 02.07.2015 and the same was duly served on the

Accused on 03.7.2015 vide Postal Acknowledgment (Ex.P10). The Accused did not specifically take any plea that he did not receive any Notice or that the

Address as mentioned on the Registered Cover was incorrect. But he has given a suggestion that the signature in the Acknowledgment does not belong to him. For this suggestion, the PW1 has deposed as under: “I do not know that the signature of receiver appearing in Ex.P10 Postal Acknowledgment Card is not that of the

Accused”. The learned Special Magistrate has invoked Section 27 of the General

Clauses Act and presumed that there was valid service of Legal Notice since the

Accused did not take any steps to adduce rebuttal evidence. When the Accused disputes the signature in the Acknowledgment Card, he should have raised specific objection during enquiry and take steps to get the Acknowledgment Card examined by an expert or call the Postman concerned. The Accused did not take any such steps but simply taken the plea that there was no service of Notice. The

Acknowledgment Card is the proof of service of Notice or otherwise, presumption under Section 27 of the General Clauses Act comes into operation infavour of the Complainant. The reasoning as given by the learned Special

Magistrate is quite legal and this Court found no reason to take a contra view.

Thus, I hold that there was valid service of Legal Notice.

Fair Judgment in CA No. 151 of 2017

10. Finding on Point No.3: The argument of the learned Counsel for the

Appellant is that the Complaint should have been filed on 16.08.2015 but filed on 18.8.2015 and thus barred by limitation. The learned Special Magistrate has relied up on the judgment of the Hon’ble Apex Court in between M/s. Saketh India Ltd., & others Vs. M/s. India Securities Ltd., (1999 (1) Bank CLR 11 (SC) wherein it was held that the period of one month for filing the Complaint will be reckoned from the day immediately following the day on which the period of 15 days from the date of the receipt of the Notice by the Drawer expires,The learned Special

Magistrate by applying the above principle has held that the period of 15 days

from the date of receipt of the Legal Notice by the Accused on 03.7.2015 will expire by 18.07.2015 and the cause of action to file Complaint arose on 19.07.2015 and the said date has to be excluded for counting the period of one month, as such the Complaint has to be filed within 30 days ie., on 18.08.2015 and since the Complaint has been filed on 18.8.2015, the same was within limitation. The Complainant did not issue any Notice in writing to the Accused when the Cheques were dishonoured initially. Thus no cause of action had arisen to initiate proceedings against the Accused on the first presentation of the

Cheques. The reasoning given by the learned Special Magistrate is quite convincing and there is nothing to interfere.

11. Finding on Point Nos.4 & 5: (11.1) The case of the Complainant is that the

Accused had purchased Gold ornaments from the Complainant on 01.4.2015, 04.4.2015 and 10.4.2015 worth of Rs.2,00,000/-, 2,00,238/- and 2,00,696/- and issued three Cheques each for Rs.2,00,000/- and when the same were presented in

Bank on 13.4.2015, they were bounced on 22.4.2015 but they did not issue any

Legal Notice and when the Complainant had approached the Accused, he

Fair Judgment in CA No. 151 of 2017 executed an Undertaking Letter dated 26.4.2015 and thereafter, the complainant had presented the Cheques on 09.06.2015 and the same were bounced on 17.6.2015. The defence of the Accused as can be culled out from the cross- examination of the Pws 1and 2 is that the Complainant had told the Accused that one of the Partners of their Partnership Firm was going to retire and that he promised that he would induct the Accused as Partner in the place of Retiring

Partner and collected Rs.2,50,000/- and also three Cheques from him but did not induct him as partner and when he insisted the PW1 to return the cash of

Rs.2,50,000/- and the Cheques, the present Case has been foisted by misusing the

Cheques.

(11.2) The Drawee or the Holder in due course of a Cheque is entitled to presumptions under Sections 118 and 139 of the Negotiable Instruments Act.

Under Section 118 it can be presumed that the Cheque had been drawn for consideration. Under section 139, presumption is available to the Complainant that the Cheques had been issued in discharge of a legally enforceable debt and about existence of such legally enforceable debt as was held by the Honb’le Apex

Court in Rangappa Vs. Mohan (2010 (2) ALD Crl.734). It is the burden of the

Accused to show preponderance of probabilities that there was no legally enforceable debt and that the Cheques in questions were issued for other purpose and not for the purpose of discharge of any legally enforceable debt or liability.

The Accused has admitted his signatures in the Cheques in question but suggested that they were given for a different purpose. Mere giving suggestions that the

Cheques were given from a different purpose would not dispel showing preponderance of probabilities. The Accused could not introduce or elicit any material to support his defence. The Accused did not give any Reply Notice to the

Fair Judgment in CA No. 151 of 2017

Notice got issued by the Complainant. He even failed to take the plea as suggested during the cross-examination of the PW1, in his examination under

Sections 251 and 313 (1) (b) Cr.P.C. In the absence of introduction of any material evidence to support his plea, it cannot be said that the Accused had rebutted the presumption. The trivial inconsistencies elicited in the cross-examination of the

PW1, will not absolve the burden of the Accused. Regarding the Ex.P4

Undertaking letter, nothing has been elicited to discredit the same. The inaction of the Accused to take any legal steps when the Complainant alleged to have taken

Rs.2,50,000/- and three Cheques, failed to induct him as a Partner in the

Complainant's Firm, makes the Court to brush aside the defence taken by

Accused. The learned Special Magistrate has given reasoned judgment while holding that the Accused has failed to rebut the presumption available to the

Complainant under Section 139 of the Negotiable Instruments Act. I found no illegality or perversity in the judgment of the learned Special Magistrate, hence, the same is required to be confirmed.

As a result, the appeal is dismissed confirming the judgment and conviction and the sentence imposed thereon against the Accused by the Trial Court in C.C

No.427 of 2015 (Old C.C No.882 of 2015). The Office is directed to return the

Case File to the XI Spl. Magistrate, Hyderabad with a direction to get the accused and to carry out the sentence imposed against the accused.

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

pronounced by me in the open court on this the 08 t h day of August, 2018.

Addl. Metropolitan Sessions Judge for the trial of JHCBBC- cum -IX Addl. Metropolitan Sessions Judge, Hyderabad.

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Fair Judgment in SC No. 360 of 2016

IN THE COURT OF ADDL METROPOLITAN SESSIONS JUDGE FOR THE

TRIAL OF JUBILEE HILLS CAR BOMB BLAST CASE CUM ADDL FAMILY

COURT CUM IX METROPOLITAN SESSIONS JUDGE: HYD

Thursday the 28 th day of December 2018

Present : Sri Moka Suvarna Raju,

Addl. Metropolitan Sessions Judge for

the trial of JHCBBC cum Addl. Family

Court IX Addl. Metropolitan Sessions

Judge, Hyderabad.

SESSIONS CASE No. 360 OF 2016

(in PRC No. 19 of 2016)

Committed by : Sri..R.Thirupathi,

III Addl. Chief Metropolitan Magistrate,

Hyderabad.

Crime Number and Police Station: Crime No.1316 of 2015 of Banjara Hills

Hyderabad.

Name and description

of the accused : A-2) Syed Khasim S/o.John Saida, aged

about 20 years, Occ:Sub Organizer of

Brothel House, R/o.H.No.8-3-228/1124/C,

3rd floor, Amma Nilayam, Rahmath Nagar,

Yousufguda, Hyderabad. N/o.H.No.4-93/1,

Kolakaluru (v), Guntur District, Andhra

Pradesh.

: A-3) Shaik Khaleel S/o.Nabi, aged about

28 years, Occ:Sub Organizer of Broathel

House, R/o.H.No.8-3-228/1124/C, 3rd Flor,

Amma Nilayam, Rahmath Nagar,

Yousufguda, Hyderabad. N/o.B.C.Colony,

Kolakaluru (v) Guntur District, Andhra

Praresh.

Name and description of the : The State Telangana through the Inspector

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Fair Judgment in SC No. 360 of 2016

Complainant of Police, police station, Banjara Hills,

Hyderabad.

Prosecution conducted by : Smt.P.Shailaja Gr.I, Addl. Public

Prosecutor.

Accused defended by : Sri Syed Sardar, Advocate for

Accused Nos.2 and 3.

Offence charged : U/Secs. 370 of IPC & Sec.3 & 4 of

Immoral Traffic (Prevention)Act,1956.

Plea of the Accused No.2 and 3 : Not guilty

Finding of the Court : Not guilty

Result : The Accused Nos.2 and 3 are found not

guilty of the Charges under Sections 370 IPC and Sections 3 and 4 of the Prevention of Immoral Traffic Act 1956, and they are acquitted of the said Charges under Section 235 (1) Cr.P.C. The bail bonds of the accused shall be cancelled after expiry of the appeal time. The FDR for Rs.10,600/- dated 06.12.2016 with the accrued interest shall be confiscated to the State. The Samsung Cell Phone (M.O2), the Condom Packets (9) (M.O3), the Intex Cell Phone (M.O4), the Nokia Cell Phone (M.O5), the Macromax Cell Phone (M.O6) and Samsung Cell Phone (M.O7) shall also be confiscated to the State after expiry of the Appeal time.

J U D G M E N T

1.The State, represented by the Inspector of Police, Police Station Banjara Hills, had filed Final Report against the Accused No.2 and 3 for the offence under Sections 370 IPC and Sections 3 and 4 of the Prevention of Immoral Traffic Act 1956.

2.(2.1)The brief averments of the Final Report are: that 09.03.2015 at 23:30 hours, the Detective Sub-Inspector of Police, Panjagutta Police Station Mr.

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K.Venkateshwar Reddy had lodged a report stating that on the intervening night of 8/9.12.2015 at 02.30 hours on receiving information that two persons were organizing

Brothel house in the house bearing No.8-3-228/1124/C, Third Floor Amma Nilayam,

Rahmath Nagar, Hyderabad; that he obtained oral permission from the Assistant

Commissioner of Police, secured panchayathdars namely P. Ashok and J.Eshwaraiah as mediators and proceeded to the spot along with the staff; that he deputed Police

Constable Mr. Mohd. Shamiuddin 3769 as decoy by giving one thousand rupee note bearing No.1AU113029; that after receiving the signal from him, he conducted raid and found two males persons and two female persons; that in the presence of panchayathdars, he recorded the confession of the two persons namely Sayed

Khasim and Shaik Khaleel, seized Rs.10,600/- and mobile phones; that the accused have confessed that the main organizer Mr. Ganesh procured the sex workers from various parts of India and running brothel house and living on their earnings.

(2.2)It is further pleaded in the Final Report that as per the contents of the report, the Sub Inspector of Police Mr. G. Ravinder had registered a case vide FIR

No.1316 of 2015 and handed over the case file to the Inspector of the Police for investigation; that the Inspector of Police after conducting the investigation had filed the Final Report against the A.2 and A.3.

3.The III Addl. Chief Metropolitan Magistrate, Hyderabad, had taken cognizance of the offence under Sections 370 IPC and Sections 3 and 4 of the Prevention of Immoral

Traffic Act 1956, numbered the case as PRC No.19/2016 and after appearance of the accused, furnished the copies of documents under Section 207 Cr.P.C and committed the same to the Hon’ble Metropolitan Sessions Judge, Hyderabad; that the Hon’ble

Metropolitan Sessions Judge had registered the case as SC No.360/2016 and made over the same to this Court for disposal.

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4.After appearance of the Accused and after hearing the learned Additional Public

Prosecutor Grade-I and the learned Counsel of the accused, Charges under Sections 370 IPC and Sections 3 and 4 of the Prevention of Immoral Traffic Act 1956, have been framed against the Accused No.2 and 3 under Section 228 (1) Cr.P.C. When the

Charges were read over and explained to the Accused in his vernacular language, they pleaded not guilty and claimed to be tried.

5. The Prosecution, to bring home the guilt of the Accused, has examined the

Detective Sub-Inspector of Police who conducted raid and lodged a report Mr.

K.Venkateshwar Reddy, the victims namely Serina Khatoon and K. Durga Devi, the

Decoy Police Constable Mr. Mohd. Shamiuddin, the owner of the house bearing No.8- 3-250/1/C, Yousufguda Basthi, Hyderabad Mr. P. Yadagiri Yadav, the Sub Inspector of

Police G. Ravinder who registered the FIR and the Inspector of Police Mr P.Murali

Krishna who conducted the investigation as P.Ws 1 to 7 and got marked Exs.P1 to P5 and M.Os 1 to 7. The learned Addl. Public Prosecutor Grade-I has given up the Police

Personnel who conducted the raid P. Srinivasuluy (L.W.5), Mohammed Pasha Jani (L.W.6), Kum. Iqra Haseen (L.W.8), Smt. Bhoodevi (L.W.9). The prosecution has failed to bring the Panchayathdars namely P. Ashok, J. Eshwaraiah (L.Ws10 and 11) in spite of granting several adjournments and due to their non-production their evidence was closed.

6.Thereafter when the Accused No.2 and 3 were examined under Section 313 (1)

(b) Cr.P.C, they denied the evidence, but reported no defence evidence.

7. Thereafter, heard the Learned Additional Public Prosecutor Grade-I and the defence counsel.

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Fair Judgment in SC No. 360 of 2016

8. Now the point for consideration is whether the prosecution could

prove beyond reasonable doubt that the Accused No.2 and 3 having been

running brothel house in association with Mr. Ganesh (A.1) and committed

the offence under Sections 370 IPC and Section 3 and 4 of the Prevention of

Immoral Traffic Act 1956?

9. Finding: My finding is that the prosecution has failed to prove the charges leveled against the accused, as such they are entitled to be acquitted.

10. Reasons for my finding are as under:- (10.1) The Detective Sub Inspector of

Police Mr. K.Venkateswar Reddy is the person who said to have been conducted the raid while working in P.S Banjara Hills. According to him on 10.12.2015 at 00.30 hours while he was performing night duty in Ameerpet, he received credible information about running a Brothel house in Amma Nilayam, Yousufguda, Rahamath Nagar. His evidence discloses that on the same night, he conducted raid and apprehended the

Accused No.2 and 3 and the victim women, brought them to the Police Station and lodged a report with the Sub-Inspector of Police.

(10.2) Mr. G. Ravinder, the then Sub Inspector of Police Banjara Hills P.S., has deposed that on 10.12.2015 at 0.3.45 hours while he was in-charge of the Police

Station, the Detective Sub Inspector of Police Mr K.Venkateshwar Reddy had lodged a report about the search of a Brothel house and seizure of cash and other objects; that basing on the same he registered a case vide FIR No.1316 of 2016 for the offence under Sections 370 IPC and Sections 3 and 4 of the Prevention of Immoral Traffic Act 1956. Through him the FIR was marked Ex.P5. A perusal of the FIR shows the date of the registration of the FIR as 09.12.2015. There are over-writings and corrections in the dates and timings in various columns which are as below:

(10.3) The date of occurrence was initially mentioned as 09.12.2015 at 00.45 hours and the same was corrected to 23.30 hours. The information received at the

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Fair Judgment in SC No. 360 of 2016

Police Station was initially noted as 09.12.2015 at 23.30 hours and the same was rubbed off with white paint and over-written as 10.12.2015. The General Diary reference date and time was initially mentioned as 09.12.2015 at 23.50 hours and the same was rubbed off with white paint and re-written as 10.12.2015 at 0.45 hours.

The report of the Detective Sub Inspector of Police (Ex.P3) shows that on the intervening night of 8/9.12.2015 at 02.30 hours, while he was performing night duty in Ameerpet, he received information about organizing brothel house. The date as mentioned in the report as 8/9.12.2015 at 02.30 hours differs from the date as deposed by the P.W.1 i.e., 09/10.12.2015 at 02.30 hours. Thus, the date and time on which the Inspector of Police received the information and conducted the raid differs from the time as deposed from the time as mentioned in the report as well as in the

FIR. On the back of the report (Ex.P3) there is an endorsement that the report was received on 10.12.2015 at 00.45 hours. In Column.No.2 of the FIR, there is an endorsement of the Sub Inspector of Police that he received the report on 09.12.2015 at 23.30 hours. The Confession-cum-seizure Panchanama whose admissible portion was marked as Ex.P2 shows that the Detective Inspector of Police had recorded the confession of Mr. Sayeed Khasim on 09.12.2015 at 04.30 hours in the premises bearing No.8-3-228/1124/C, Third Floor Amma Nilayam, Rahmath Nagar, Hyderabad in the presence of the panchayatdars. The search proceedings Ex.P2 also bears the same date i.e., 09.12.2015 at 03.00 hours at Panjagutta Police Station.

Unfortunately, the learned Counsel for the accused did not point out the variation in the dates or the Inspector of Police did not give any explanation about discrepancy in the dates as found. The inconsistency as appeared in the date at various places in the material documents is significant.

(10.4) The Inspector of Police said to have examined the owner of the premises Mr.

P.Yadagiri Yadav (P.W.5) who deposed that he is the owner of the premises bearing

No.8-3-250/1/C, Yousufguda Basthi; that the house consists of four floors containing

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Fair Judgment in SC No. 360 of 2016 each four portions in total 16 portions; that in the month of December 2015, one woman by name Sharmila along with her mother had taken a portion in the Second

Floor on a monthly rent of Rs.8,000/-; that on 09.12.2015, at 2.00 P.M the Police raided the portion let out to Sharmila and on knowing the same he visited the portion of Sharmila and asked the Police, but the Police without disclosing anything, taken away Sharmila and her mother with them. Thus, his evidence is inconsistent to the case of the prosecution.

(10.5) The Inspector of Police Mr. P. Murali Krishna (PW7) who conducted the investigation has deposed that he had collected xerox copies of the Sale Deed from

Mr. P.Yadagiri Yadav in respect of the house bearing No.8-3-250/1//C wherein the accused and the victims were apprehended. But no such document has been marked in the evidence. The FIR, report and the Confessional Statement shows that the raid was conducted in the house bearing No.8-3-228/1124/C, Third Floor, Amma Nilayam,

Hyderabad. But the house numbers as mentioned in the case record differs from the evidence of Mr. P. Yadagiri Yadav who said to have owned the house bearing No.8-3- 250/1//C. The Investigating Officer neither photographed the premises where the raid was conducted nor produced the xerox copy of the Sale Deed which he said to have collected from the house owner Mr. P.Yadagiri Yadav (PW5). Thus there is glaring discrepancy about the premises where actually the raid was conducted. The PW1 as well as the Investigating Officers have confined their claim to the house where the raid was conducted to the house bearing No. 8-3-228/1124/C. But the learned

Defence Counsel has posed specific question to the Investigating Officer that both the houses are different. The Investigating Officer has deposed that the house bearing No.8-3-228/1124/C and the house bearing No.8-3-250/1//C are one and the same. When the PW5 has specifically deposed that he is the owner of the premises

No.8-3-250/1//C and that one Sharmila and her mother had taken his house portion on a rent of Rs.8,000/-. But the prosecution could not produce any contra evidence.

8

Fair Judgment in SC No. 360 of 2016 (10.6) One of the victims K. Durga Devi (P.W.2) has deposed that she belongs to Kakinada of East Godavari District; that she came to Hyderabad and started working as a Sales Girl in a Garments Shop at Ameerpet; that one Ganesh who was frequent visitor of the shop had developed acquaintance with her and taken her to a

Flat on the promise of providing employment and made her to do prostitution and that the Accused No.2 and 3 have assisted him.

(10.7) The learned Counsel of the accused, though suggested that she omitted to state the various events as deposed in her examination-in-chief, unfortunately could not confront the same with the Investigating Officer who said to have recorded their statements. Likewise the other woman Serina Khatoon as PW3 has deposed that Mr.

Ganesh brought her to Hyderabad on the promise of providing employment and made her to do prostitution; that the Accused No.2 and 3 made her to do prostitution along with other women. But both the women could not give the location where the

Police have apprehended them along with the accused.

(10.8) The decoy Police Constable Mr. Shamiuddin has corroborated the evidence of the PW1 regarding apprehension of the Accused and the victim women.

However, he could not give any land marks for identification of Amma Nilayam. The entire case revolves upon the premises Amma Nilayam, whereas the Decoy Police

Constable has deposed the name as Amba Nilayam. However, he could not give the accurate identification of the premises.

(10.9) Though the victim women have deposed that the A.2 and A.3 have made them to do prostitution, their version differs from the confession said to have been given by the A.2 and A.3. The identity of the premises could not be deposed by the prosecution witnesses accurately and there appear glaring inconsistency about

9

Fair Judgment in SC No. 360 of 2016 the date of apprehension of the accused and victim women. More over, the

Prosecution has failed to examine the Panchayathdars in whose presence the search proceedings said to have prepared and the apprehension has been made. The PW1 though said to have seized the Mobile Phones, their ownership is not established, nor the call details have been furnished. Thus, there is vital lacuna in the case of the prosecution and serious doubts have arisen to accept the very raid itself, hence, benefit of doubt shall be given to the accused. Thus, I hold that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly the point is answered.

11. As a result, the Accused Nos.2 and 3 are found not guilty of the

Charges under Sections 370 IPC and Sections 3 and 4 of the Prevention of Immoral

Traffic Act 1956, and they are acquitted of the said Charges under Section 235 (1)

Cr.P.C. The bail bonds of the accused shall be cancelled after expiry of the appeal time. The FDR for Rs.10,600/- dated 06.12.2016 with the accrued interest shall be confiscated to the State. The Samsung Cell Phone (M.O2), the Condom Packets (9) (M.O3), the Intex Cell Phone (M.O4), the Nokia Cell Phone (M.O5), the Macromax Cell

Phone (M.O6) and Samsung Cell Phone (M.O7) shall also be confiscated to the State after expiry of the Appeal time.

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

me in the open court on this the 31st day of December 2018.

ADDL METROPOLITAN SESSIONS JUDGE

FOR THE TRIAL OF JHCBBC-CUM-ADDL. FAMILY

JUDGE-CUM-IX ADDL. METROPOLITAN SESSIONS

JUDGE, HYDERABAD.

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Fair Judgment in SC No. 360 of 2016

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION:

PW.1 :K.Venkateshwar Reddy PW.2 :Smt.K.Durga Devi PW.3 :Kum.Serina Khatoon PW.4 :Mohd.Samiuddin PW.5 :P.Yadagiri Yadav PW.6 : G.Ravindar PW.7 : P.Murali Krishna

FOR DEFENCE: None

EXHIBITS MARKED

FOR PROSECUTION:

Ex.P.1:Search Proceedings dated 10-12-2015

Ex.P.2:Admissible portion in the Confession-cum-Seizure Panchanama

Ex.P.3:Report dated 10.12.2015

Ex.P4:portion of 161 Cr.P.C statement of LW12.

Ex.P5:Original F.I.R.

FOR DEFENCE: Nil

MATERIAL OBJECTS MARKED:

MO1 : FDR for Rs.10,600/- dated 06-12-2016

MO2:Samsung cell phone seized from A2

MO3:9 condom packets of Dotted company

MO4:Intex cell phone seized from A3

MO5:Nokia cell phone seized from Sharmila

MO6:Micromax cell phone seized from Sareena Khatoon

MO7:Samsung cell phone seized from Sareena Khatoon

ADDL METROPOLITAN SESSIONS JUDGE

FOR THE TRIAL OF JHCBBC-CUM-ADDL. FAMILY

JUDGE-CUM-IX ADDL. METROPOLITAN SESSIONS

JUDGE, HYDERABAD.

11

Fair Judgment in SC No. 360 of 2016

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Fair Judgment in SC No. 360 of 2016

IN THE COURT OF ADDL METROPOLITAN SESSIONS JUDGE FOR THE

TRIAL OF JUBILEE HILLS CAR BOMB BLAST CASE CUM ADDL FAMILY

COURT CUM IX METROPOLITAN SESSIONS JUDGE: HYD

Thursday the 28 th day of December 2018

Present : Sri Moka Suvarna Raju,

Addl. Metropolitan Sessions Judge for

the trial of JHCBBC cum Addl. Family

Court IX Addl. Metropolitan Sessions

Judge, Hyderabad.

SESSIONS CASE No. 360 OF 2016

(in PRC No. 19 of 2016)

Committed by : Sri..R.Thirupathi,

III Addl. Chief Metropolitan Magistrate,

Hyderabad.

Crime Number and Police Station: Crime No.1316 of 2015 of Banjara Hills

Hyderabad.

Name and description

of the accused : A-2) Syed Khasim S/o.John Saida, aged

about 20 years, Occ:Sub Organizer of

Brothel House, R/o.H.No.8-3-228/1124/C,

3rd floor, Amma Nilayam, Rahmath Nagar,

Yousufguda, Hyderabad. N/o.H.No.4-93/1,

Kolakaluru (v), Guntur District, Andhra

Pradesh.

: A-3) Shaik Khaleel S/o.Nabi, aged about

28 years, Occ:Sub Organizer of Broathel

House, R/o.H.No.8-3-228/1124/C, 3rd Flor,

Amma Nilayam, Rahmath Nagar,

Yousufguda, Hyderabad. N/o.B.C.Colony,

Kolakaluru (v) Guntur District, Andhra

Praresh.

Name and description of the : The State Telangana through the Inspector

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Fair Judgment in SC No. 360 of 2016

Complainant of Police, police station, Banjara Hills,

Hyderabad.

Prosecution conducted by : Smt.P.Shailaja Gr.I, Addl. Public

Prosecutor.

Accused defended by : Sri Syed Sardar, Advocate for

Accused Nos.2 and 3.

Offence charged : U/Secs. 370 of IPC & Sec.3 & 4 of

Immoral Traffic (Prevention)Act,1956.

Plea of the Accused No.2 and 3 : Not guilty

Finding of the Court : Not guilty

Result : The Accused Nos.2 and 3 are found not

guilty of the Charges under Sections 370 IPC and Sections 3 and 4 of the Prevention of Immoral Traffic Act 1956, and they are acquitted of the said Charges under Section 235 (1) Cr.P.C. The bail bonds of the accused shall be cancelled after expiry of the appeal time. The FDR for Rs.10,600/- dated 06.12.2016 with the accrued interest shall be confiscated to the State. The Samsung Cell Phone (M.O2), the Condom Packets (9) (M.O3), the Intex Cell Phone (M.O4), the Nokia Cell Phone (M.O5), the Macromax Cell Phone (M.O6) and Samsung Cell Phone (M.O7) shall also be confiscated to the State after expiry of the Appeal time.

J U D G M E N T

1.The State, represented by the Inspector of Police, Police Station Banjara Hills, had filed Final Report against the Accused No.2 and 3 for the offence under Sections 370 IPC and Sections 3 and 4 of the Prevention of Immoral Traffic Act 1956.

2.(2.1)The brief averments of the Final Report are: that 09.03.2015 at 23:30 hours, the Detective Sub-Inspector of Police, Panjagutta Police Station Mr.

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Fair Judgment in SC No. 360 of 2016

K.Venkateshwar Reddy had lodged a report stating that on the intervening night of 8/9.12.2015 at 02.30 hours on receiving information that two persons were organizing

Brothel house in the house bearing No.8-3-228/1124/C, Third Floor Amma Nilayam,

Rahmath Nagar, Hyderabad; that he obtained oral permission from the Assistant

Commissioner of Police, secured panchayathdars namely P. Ashok and J.Eshwaraiah as mediators and proceeded to the spot along with the staff; that he deputed Police

Constable Mr. Mohd. Shamiuddin 3769 as decoy by giving one thousand rupee note bearing No.1AU113029; that after receiving the signal from him, he conducted raid and found two males persons and two female persons; that in the presence of panchayathdars, he recorded the confession of the two persons namely Sayed

Khasim and Shaik Khaleel, seized Rs.10,600/- and mobile phones; that the accused have confessed that the main organizer Mr. Ganesh procured the sex workers from various parts of India and running brothel house and living on their earnings.

(2.2)It is further pleaded in the Final Report that as per the contents of the report, the Sub Inspector of Police Mr. G. Ravinder had registered a case vide FIR

No.1316 of 2015 and handed over the case file to the Inspector of the Police for investigation; that the Inspector of Police after conducting the investigation had filed the Final Report against the A.2 and A.3.

3.The III Addl. Chief Metropolitan Magistrate, Hyderabad, had taken cognizance of the offence under Sections 370 IPC and Sections 3 and 4 of the Prevention of Immoral

Traffic Act 1956, numbered the case as PRC No.19/2016 and after appearance of the accused, furnished the copies of documents under Section 207 Cr.P.C and committed the same to the Hon’ble Metropolitan Sessions Judge, Hyderabad; that the Hon’ble

Metropolitan Sessions Judge had registered the case as SC No.360/2016 and made over the same to this Court for disposal.

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Fair Judgment in SC No. 360 of 2016

4.After appearance of the Accused and after hearing the learned Additional Public

Prosecutor Grade-I and the learned Counsel of the accused, Charges under Sections 370 IPC and Sections 3 and 4 of the Prevention of Immoral Traffic Act 1956, have been framed against the Accused No.2 and 3 under Section 228 (1) Cr.P.C. When the

Charges were read over and explained to the Accused in his vernacular language, they pleaded not guilty and claimed to be tried.

5. The Prosecution, to bring home the guilt of the Accused, has examined the

Detective Sub-Inspector of Police who conducted raid and lodged a report Mr.

K.Venkateshwar Reddy, the victims namely Serina Khatoon and K. Durga Devi, the

Decoy Police Constable Mr. Mohd. Shamiuddin, the owner of the house bearing No.8- 3-250/1/C, Yousufguda Basthi, Hyderabad Mr. P. Yadagiri Yadav, the Sub Inspector of

Police G. Ravinder who registered the FIR and the Inspector of Police Mr P.Murali

Krishna who conducted the investigation as P.Ws 1 to 7 and got marked Exs.P1 to P5 and M.Os 1 to 7. The learned Addl. Public Prosecutor Grade-I has given up the Police

Personnel who conducted the raid P. Srinivasuluy (L.W.5), Mohammed Pasha Jani (L.W.6), Kum. Iqra Haseen (L.W.8), Smt. Bhoodevi (L.W.9). The prosecution has failed to bring the Panchayathdars namely P. Ashok, J. Eshwaraiah (L.Ws10 and 11) in spite of granting several adjournments and due to their non-production their evidence was closed.

6.Thereafter when the Accused No.2 and 3 were examined under Section 313 (1)

(b) Cr.P.C, they denied the evidence, but reported no defence evidence.

7. Thereafter, heard the Learned Additional Public Prosecutor Grade-I and the defence counsel.

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Fair Judgment in SC No. 360 of 2016

8. Now the point for consideration is whether the prosecution could

prove beyond reasonable doubt that the Accused No.2 and 3 having been

running brothel house in association with Mr. Ganesh (A.1) and committed

the offence under Sections 370 IPC and Section 3 and 4 of the Prevention of

Immoral Traffic Act 1956?

9. Finding: My finding is that the prosecution has failed to prove the charges leveled against the accused, as such they are entitled to be acquitted.

10. Reasons for my finding are as under:- (10.1) The Detective Sub Inspector of

Police Mr. K.Venkateswar Reddy is the person who said to have been conducted the raid while working in P.S Banjara Hills. According to him on 10.12.2015 at 00.30 hours while he was performing night duty in Ameerpet, he received credible information about running a Brothel house in Amma Nilayam, Yousufguda, Rahamath Nagar. His evidence discloses that on the same night, he conducted raid and apprehended the

Accused No.2 and 3 and the victim women, brought them to the Police Station and lodged a report with the Sub-Inspector of Police.

(10.2) Mr. G. Ravinder, the then Sub Inspector of Police Banjara Hills P.S., has deposed that on 10.12.2015 at 0.3.45 hours while he was in-charge of the Police

Station, the Detective Sub Inspector of Police Mr K.Venkateshwar Reddy had lodged a report about the search of a Brothel house and seizure of cash and other objects; that basing on the same he registered a case vide FIR No.1316 of 2016 for the offence under Sections 370 IPC and Sections 3 and 4 of the Prevention of Immoral Traffic Act 1956. Through him the FIR was marked Ex.P5. A perusal of the FIR shows the date of the registration of the FIR as 09.12.2015. There are over-writings and corrections in the dates and timings in various columns which are as below:

(10.3) The date of occurrence was initially mentioned as 09.12.2015 at 00.45 hours and the same was corrected to 23.30 hours. The information received at the

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Fair Judgment in SC No. 360 of 2016

Police Station was initially noted as 09.12.2015 at 23.30 hours and the same was rubbed off with white paint and over-written as 10.12.2015. The General Diary reference date and time was initially mentioned as 09.12.2015 at 23.50 hours and the same was rubbed off with white paint and re-written as 10.12.2015 at 0.45 hours.

The report of the Detective Sub Inspector of Police (Ex.P3) shows that on the intervening night of 8/9.12.2015 at 02.30 hours, while he was performing night duty in Ameerpet, he received information about organizing brothel house. The date as mentioned in the report as 8/9.12.2015 at 02.30 hours differs from the date as deposed by the P.W.1 i.e., 09/10.12.2015 at 02.30 hours. Thus, the date and time on which the Inspector of Police received the information and conducted the raid differs from the time as deposed from the time as mentioned in the report as well as in the

FIR. On the back of the report (Ex.P3) there is an endorsement that the report was received on 10.12.2015 at 00.45 hours. In Column.No.2 of the FIR, there is an endorsement of the Sub Inspector of Police that he received the report on 09.12.2015 at 23.30 hours. The Confession-cum-seizure Panchanama whose admissible portion was marked as Ex.P2 shows that the Detective Inspector of Police had recorded the confession of Mr. Sayeed Khasim on 09.12.2015 at 04.30 hours in the premises bearing No.8-3-228/1124/C, Third Floor Amma Nilayam, Rahmath Nagar, Hyderabad in the presence of the panchayatdars. The search proceedings Ex.P2 also bears the same date i.e., 09.12.2015 at 03.00 hours at Panjagutta Police Station.

Unfortunately, the learned Counsel for the accused did not point out the variation in the dates or the Inspector of Police did not give any explanation about discrepancy in the dates as found. The inconsistency as appeared in the date at various places in the material documents is significant.

(10.4) The Inspector of Police said to have examined the owner of the premises Mr.

P.Yadagiri Yadav (P.W.5) who deposed that he is the owner of the premises bearing

No.8-3-250/1/C, Yousufguda Basthi; that the house consists of four floors containing

7

Fair Judgment in SC No. 360 of 2016 each four portions in total 16 portions; that in the month of December 2015, one woman by name Sharmila along with her mother had taken a portion in the Second

Floor on a monthly rent of Rs.8,000/-; that on 09.12.2015, at 2.00 P.M the Police raided the portion let out to Sharmila and on knowing the same he visited the portion of Sharmila and asked the Police, but the Police without disclosing anything, taken away Sharmila and her mother with them. Thus, his evidence is inconsistent to the case of the prosecution.

(10.5) The Inspector of Police Mr. P. Murali Krishna (PW7) who conducted the investigation has deposed that he had collected xerox copies of the Sale Deed from

Mr. P.Yadagiri Yadav in respect of the house bearing No.8-3-250/1//C wherein the accused and the victims were apprehended. But no such document has been marked in the evidence. The FIR, report and the Confessional Statement shows that the raid was conducted in the house bearing No.8-3-228/1124/C, Third Floor, Amma Nilayam,

Hyderabad. But the house numbers as mentioned in the case record differs from the evidence of Mr. P. Yadagiri Yadav who said to have owned the house bearing No.8-3- 250/1//C. The Investigating Officer neither photographed the premises where the raid was conducted nor produced the xerox copy of the Sale Deed which he said to have collected from the house owner Mr. P.Yadagiri Yadav (PW5). Thus there is glaring discrepancy about the premises where actually the raid was conducted. The PW1 as well as the Investigating Officers have confined their claim to the house where the raid was conducted to the house bearing No. 8-3-228/1124/C. But the learned

Defence Counsel has posed specific question to the Investigating Officer that both the houses are different. The Investigating Officer has deposed that the house bearing No.8-3-228/1124/C and the house bearing No.8-3-250/1//C are one and the same. When the PW5 has specifically deposed that he is the owner of the premises

No.8-3-250/1//C and that one Sharmila and her mother had taken his house portion on a rent of Rs.8,000/-. But the prosecution could not produce any contra evidence.

8

Fair Judgment in SC No. 360 of 2016 (10.6) One of the victims K. Durga Devi (P.W.2) has deposed that she belongs to Kakinada of East Godavari District; that she came to Hyderabad and started working as a Sales Girl in a Garments Shop at Ameerpet; that one Ganesh who was frequent visitor of the shop had developed acquaintance with her and taken her to a

Flat on the promise of providing employment and made her to do prostitution and that the Accused No.2 and 3 have assisted him.

(10.7) The learned Counsel of the accused, though suggested that she omitted to state the various events as deposed in her examination-in-chief, unfortunately could not confront the same with the Investigating Officer who said to have recorded their statements. Likewise the other woman Serina Khatoon as PW3 has deposed that Mr.

Ganesh brought her to Hyderabad on the promise of providing employment and made her to do prostitution; that the Accused No.2 and 3 made her to do prostitution along with other women. But both the women could not give the location where the

Police have apprehended them along with the accused.

(10.8) The decoy Police Constable Mr. Shamiuddin has corroborated the evidence of the PW1 regarding apprehension of the Accused and the victim women.

However, he could not give any land marks for identification of Amma Nilayam. The entire case revolves upon the premises Amma Nilayam, whereas the Decoy Police

Constable has deposed the name as Amba Nilayam. However, he could not give the accurate identification of the premises.

(10.9) Though the victim women have deposed that the A.2 and A.3 have made them to do prostitution, their version differs from the confession said to have been given by the A.2 and A.3. The identity of the premises could not be deposed by the prosecution witnesses accurately and there appear glaring inconsistency about

9

Fair Judgment in SC No. 360 of 2016 the date of apprehension of the accused and victim women. More over, the

Prosecution has failed to examine the Panchayathdars in whose presence the search proceedings said to have prepared and the apprehension has been made. The PW1 though said to have seized the Mobile Phones, their ownership is not established, nor the call details have been furnished. Thus, there is vital lacuna in the case of the prosecution and serious doubts have arisen to accept the very raid itself, hence, benefit of doubt shall be given to the accused. Thus, I hold that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly the point is answered.

11. As a result, the Accused Nos.2 and 3 are found not guilty of the

Charges under Sections 370 IPC and Sections 3 and 4 of the Prevention of Immoral

Traffic Act 1956, and they are acquitted of the said Charges under Section 235 (1)

Cr.P.C. The bail bonds of the accused shall be cancelled after expiry of the appeal time. The FDR for Rs.10,600/- dated 06.12.2016 with the accrued interest shall be confiscated to the State. The Samsung Cell Phone (M.O2), the Condom Packets (9) (M.O3), the Intex Cell Phone (M.O4), the Nokia Cell Phone (M.O5), the Macromax Cell

Phone (M.O6) and Samsung Cell Phone (M.O7) shall also be confiscated to the State after expiry of the Appeal time.

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

me in the open court on this the 31st day of December 2018.

ADDL METROPOLITAN SESSIONS JUDGE

FOR THE TRIAL OF JHCBBC-CUM-ADDL. FAMILY

JUDGE-CUM-IX ADDL. METROPOLITAN SESSIONS

JUDGE, HYDERABAD.

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Fair Judgment in SC No. 360 of 2016

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION:

PW.1 :K.Venkateshwar Reddy PW.2 :Smt.K.Durga Devi PW.3 :Kum.Serina Khatoon PW.4 :Mohd.Samiuddin PW.5 :P.Yadagiri Yadav PW.6 : G.Ravindar PW.7 : P.Murali Krishna

FOR DEFENCE: None

EXHIBITS MARKED

FOR PROSECUTION:

Ex.P.1:Search Proceedings dated 10-12-2015

Ex.P.2:Admissible portion in the Confession-cum-Seizure Panchanama

Ex.P.3:Report dated 10.12.2015

Ex.P4:portion of 161 Cr.P.C statement of LW12.

Ex.P5:Original F.I.R.

FOR DEFENCE: Nil

MATERIAL OBJECTS MARKED:

MO1 : FDR for Rs.10,600/- dated 06-12-2016

MO2:Samsung cell phone seized from A2

MO3:9 condom packets of Dotted company

MO4:Intex cell phone seized from A3

MO5:Nokia cell phone seized from Sharmila

MO6:Micromax cell phone seized from Sareena Khatoon

MO7:Samsung cell phone seized from Sareena Khatoon

ADDL METROPOLITAN SESSIONS JUDGE

FOR THE TRIAL OF JHCBBC-CUM-ADDL. FAMILY

JUDGE-CUM-IX ADDL. METROPOLITAN SESSIONS

JUDGE, HYDERABAD.

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Fair Judgment in SC No. 360 of 2016

IN THE COURT OF THE VII ADDL. METROPOLITAN SESSIONS JUDGE;

HYDERABAD.

Present: M.Suvarna Raju, IX Addl. Metropolitan Sessions Judge FAC.VII Addl. Metropolitan Sessions Judge, Hyderabad.

Tuesday, the 07th day of August 2018.

CRIMINAL APPEAL No.210 of 2017

From which court this appeal is preferredXXI Special Magistrate, Hyderabad. Number of the case in that CourtC.C.No.14 of 2016 Number of the appealCrl. Appeal No.210 of 2017 Name and description of the appellantVennu Srinivas, S/o.V.Satyanarayana, Age: 45 yrs, Occ: Business, R/o.H.No.18-8- 442/14, Kalika Nagar, Lalitha Bagh, Uppuguda, Hyderabad, Office at M/s.Siri Furniture & Wood Works, H.No.18-3- 463/1/19,BesideBhavaniWines, Uppuguda, Station Road, Chatrinaka, Hyderabad. Name and description of the respondentG.Rajalaxmi W/o.G.Thirupathaiah, Age: 38 yrs, Occ: Business, R/o.18-3-508/D/86,Shivaganganagar, Chatrinaka, Hyderabad. The sentence and law under whichIn the result, the accused is found guilty for conviction was imposed in the lower court:the offence under Sec.138 NI Act and therefore, he is convicted for the said offence under Sec.255(2) CrPC and he is sentenced to undergo SI for six months and further sentenced to pay a fine of Rs.4,50,000/- in default SI for three months. Out of the fine realized a sum of Rs.4,00,000/- shall be paid to the complainant. Whether confirmed, modified or Reversed, ifAs a result, the appeal is allowed by setting modified the Modification:aside the conviction and sentence imposed thereon against the accused in CC No.14/2016 by the XXI Spl. Magistrate, Hyderabad. Consequently the Appellant/accused is acquitted of the offence under Sec.138 of NI Act under Sec.255(1) CrPC. The bail bonds of the accused shall be cancelled and the fine amount if any paid in the trial court shall be refund to him.

DATE OF OR ON WHICH

Presentation22-02-2017 Filing22-02-2017 Notice issued by the Court23-02-2017 Bail bond if appellant is let out on bail -- Appellant is ordered to be appear23-02-2017 Hearing24-07-2018 JUDGMENT07-08-2018 -2- This appeal is coming on for hearing before me, upon perusing the petition and record of evidence and proceedings and of appeal and upon duly considering the same after hearing the arguments of M/s.Chintala Krishna, Advocates for Appellant and Sri S.Srinivas Rao, Advocate for the Respondent and having stood over for consideration till this day this court delivered the following:

-: J U D G M E N T:-

1.This appeal has been preferred by the Accused in C.C No. 14 of 2016 on the file of the XXI Special Magistrate, Hyderabad under Section 374 Cr.P.C challenging the judgment dated: 02.02.2017 for the offence under Section 138 of the Negotiable Instruments Act where-under the Accused was convicted and sentenced to undergo Simple Imprisonment for a period of Six months and to pay a fine of Rs.4,50,000/-, (Rupees Four Lakhs and Fifty Thousand Only) in default to undergo Simple Imprisonment for three months. The parties herein shall be referred to as they were referred in the Complaint for convenience.

Before going into the Grounds of Appeal, I now look into the contents of the

Complaint.

2.The brief contents of the Complaint are: that the Accused is known person to the Complainant; that the Accused made a request to the

Complainant to advance Rs.4 Lakhs as hand Loan in March 2014 for his personal necessities; that accordingly the Complainant had lent an amount of

Rs.4 Lakhs to the Accused in the form of cash on 20.02.2014 at her residence; that the Accused had received the same promising to repay the same within one year; that the Complainant having waited for one year, demanded the

Accused to repay the amount but he was postponing to repay the same; that on repeated demands, the Accused had issued a Cheque bearing No.466118 drawn on State Bank of India, Shamsheergunj Branch, Hyderabad for Rs.4

Lakhs on 10.08.2016; that when she presented the same in Andhra Bank,

Shamsheergunj Branch, Hyderabad on 10.08.2016, the same was returned for the reason “Funds Insufficient”; that she got issued a Legal Notice to the

Accused on 30.08.2016 to his residence address as well as to his Office address; that the Notice sent to the residence address was duly served on the

Accused but he neither repaid the amount nor issued any reply, hence, the

Complainant has filed this Complaint.

-3-

3.Thereafter, the Complainant has examined himself as P.W1 and got marked the documents Exs.P1 to P7. The learned XXI Special Magistrate,

Hyderabad after appreciating the evidence had delivered the judgment on 02.02.2017 convicting the Accused for the offence under Section 138 of the

Negotiable Instruments Act.

5.The Accused has challenged the judgment by way of this Appeal on the following grounds:-

i) That the learned Magistrate has failed to observe that the disputed Cheque was never issued by the Accused towards discharge of any legally enforceable debt or liability; ii) That the Court below ought to have seen that the Complainant has failed to produce any supporting document showing that Ex.P1 Cheque was issued towards discharge of legally enforceable debt or liability; iii) That the learned Magistrate has failed to observe that the Accused has filed an Insolvency Petition and got marked the documents as Exs.D1 to D3; iv) That the learned Magistrate has failed to give opportunity to the Accused to disprove the Charges made against him;

v) That the findings reached by the Court below are perverse; that it acted upon conjunctures and surmises and thus the judgment and conviction is liable to be set aside and the Accused is entitled to be acquitted.

6.Since the Appellant and his Counsel were called absent, arguments on his behalf are treated heard. Heard the learned Counsel for the

Respondent/Complainant. The learned Counsel for the respondent/Complainant has argued that presumption under Section 139 of the Negotiable Instruments

Act comes into operation in favour of the Complainant; that the Accused has failed to rebut the presumption; that the Trial Court has rightly convicted the

Accused; that there are no merits in the Appeal, hence, the Appeal may be dismissed.

7.When the matter was posted for judgment, the Appellant has filed a petition to reopen the matter with a prayer to permit him to advance arguments. Thereafter this Court, with a view to give him an opportunity, reopened the matter and heard the arguments of the learned Counsel for the

Appellant/Accused. The learned Counsel for the Appellant/Accused has argued that the Cheque in question was not issued by the Accused towards any legally enforceable debt to the Complainant; that he had issued a blank Cheque to the -4- husband of the Complainant who was running a Private Chit, wherein the

Accused had subscribed; that the Complainant has no sources of income to advance huge amount of Rs.4 Lakhs; that failure of the Complainant to disclose lending of Rs.4 Lakhs in the Income Tax Returns is fatal to the case of the

Complainant. and thus the Accused could rebut the presumption available to the Complainant and that the Complainant has failed to prove that there exists a legally enforceable debt and thereby, the Appeal deserves to be allowed and consequently the Accused may be acquitted. In support of his contention he quoted the following Case law:-

i) K. Ashok Kumar Goud Vs. Sree Ramulu and another 2017 (1) ALT (Crl) 320 (A.P) wherein it was held -

“Non-production of any Bank Statements and

non-mention of the amount advanced in Income

Tax Returns makes the claim of the Complainant

doubtful and about the existence of any legally

enforceable debt or liability.” ii) R. Chennakesava Rao Vs. P. Laxmi Narasaiah and another 2017 (2) ALT (Crl) 279 (A.P) wherein it was held - “The Complainant is an income Tax Assessee, but he did not disclose this amount in his income tax Returns and that such admission itself is suffice to conclude that the amount lent, if any, is unaccounted

money and thereby it is not legally recoverable.”

iii) K. Venkata Krishna Prasad Vs. Peram Sai Swarupa, Vijayawada and another 2017(1) ALT (Crl) 259 (A.P) wherein it was - “The Complainant has failed to prove his financial capacity, much less to lend the amount of Rs.5 Lakhs as on the date of Ex.P1-non-filing of any Income Tax Returns showing the debt covered under Ex.P1 goes to show that the Complainant has failed to prove the existence of any legally enforceable

debt between her and the accused.”

8.Basing on the evidence on record, arguments advanced and the judgments quoted, I now formulate the following points for consideration to dispose of the Appeal:

1) Whether there exists any legally enforceable debt between the Complainant and the Accused and that the Accused had issued the Cheque in question towards discharge of such legally enforceable debt?

2) If not, whether the judgment passed by the learned XXI Special Magistrate, Hyderabad is illegal or perverse, if so, the same is liable to be interfered in the Appeal ?

-5-

9.(1) Finding on point No.1: My finding is that the Complainant has failed to prove that the Accused had issued the Cheque towards discharge of any legally enforceable debt. (2) Finding on point No.2: My finding is that the judgment of the learned Special Magistrate is illegal and the same is to be set aside.

10. Reasons for my finding on Points 1 and 2 are as under: (10.1)

The Complainant had claimed that she lent Rs.4 Lakhs to the Accused out of acquaintance; that on repeated demands he issued the Cheque to repay the same; that since the same was bounced and since he failed to pay the amount in spite of issuing Notice, she filed the Complaint. The version of the Accused is that he had never borrowed money from the Complainant or issued the Cheque in dispute; that the husband of the Complainant used to run Private Chits wherein he subscribed; that in such Chit transaction, he had given a blank

Cheque to him as security and that in spite of paying the Chit installments, the husband of the Complainant did not return the Cheque but misused the same through his wife the Complainant.

(10.1) It is the Law of the Land that when the Accused admits his signature in the disputed Cheque, it shall be presumed that the Cheque was drawn by him for consideration, issued the same in discharge of a legally enforceable debt and about existence of such debt, as was held in Rangappa

Vs. Mohan AIR 2010 SC 1898. It was held therein that the presumption available under Section 139 of the Negotiable Instruments Act is rebuttable and such presumption can be rebutted by raising any defence and there can be no doubt that there is initial presumption in favour of the Complainant and such presumption can be rebutted in view of reverse onus by adducing independent evidence or by eliciting something in the cross examination. The Hon’ble

Supreme Court in John K. John Vs. Tom Varghese (2) 2008 (1) ALT (Crl) 444 (SC) has held - “When the Accused dispelled the presumption under Section 139 of the Negotiable Instruments Act, the burden will shift on to the Complainant to prove that the Cheque was issued towards

discharge of a legally enforceable debt. “

(10.2) Now, I look into the evidence on record to find out whether the Accused is able to rebut the presumption. There is no dispute regarding presentation of -6- the Cheque in the Bank, bouncing of the same and issuance of the Notice to the Accused. The Accused did not issue any reply to the Notice got issued to him. The Accused mainly challenged that there was no money transaction between him and the Complainant; that he had not issued the Cheque in question in her favour and that the Complainant has no financial capacity. By raising this kind of defence, the Accused could elicit from the Complainant (P.W1) during her cross examination that she is an Income Tax Assessee; that she has been doing Rice Business, having a shop at Shamsheergunj; that her turnover in the said business is about Rs.4 Lakhs to Rs.5 Lakhs and its annual turn over is Rs.30 Lakhs. She further deposed that she has been paying the

Income Tax for the income derived out of the said business. She got marked the copies of her Income Tax Returns for the years 2014-2015 and 2015-2016 as

Ex.P7. In the Income Tax Returns for the Assessment Year 2015-2016, her gross income was shown as Rs.2,57,850/- and after deductions, the total income comes to Rs.2,52,400/-, for the Assessment Year 2014-2015 the gross income was Rs.2,35,779/- and after deduction the total income comes to Rs.2,11,270/-.

Thus the entries in the Income Tax Returns contradicts the version of the P.W1 that her monthly turn over in the business is Rs.4 Lakhs to Rs.5 Lakhs. The

Complainant said to have given Rs.4 Lakhs to the Accused on 20th March 2014.

The Accused said to have issued the Cheque in dispute towards discharge of the same. But the same has not been reflected in the Income Tax Returns. She even could not say the source of such huge amount.

(10.3). Since the Accused has admitted the signature in the Cheque, presumption is available to the Complainant that the Cheque had been issued towards legally enforceable debt and about the existence of such legally enforceable debt as well. The Hon’ble Apex Court in a case between

Rangappa Vs Mohan reported in AIR 2010 Supreme Court 1898 has held that

“Under Section 139 of the Negotiable

Instruments Act a presumption shall be

drawn that the Cheque was issued in

discharge of a legally enforceable debt and

about the existence of such debt.” -7- (8.2) The accused to rebut the presumption available to him has examined himself and one Mr. Kolluju Vijay Kumar as D.Ws.1 and 2 and got marked a Pass Book said to have given by the husband of the Complainant by name Tirupathaiah and four receipts said to have been issued by the husband of the Complainant. He deposed that the husband of the Complainant was running a Private Chit; that he had obtained a blank signed Cheque from him; that the husband of the Complainant had filed an Insolvency Petition showing his liabilities as Rs.68,73,000/- against the total assets as Rs.4,50,000/-. When questioned about such Petition, the Complainant pleaded ignorance. Such evidence of the PW1 appear to be unbelievable. To support his contention he got marked a copy of the Insolvency Petition, a small Note Book and some slips.

Though the Accused could not strictly prove the Chit transaction, could raise probable defence.

(8.3) The learned XXI Special Magistrate, Hyderabad by relying the judgment of the Kerala High Court held in between Sugunan Vs. Thulaseedharan (2015 ACD 110) has held that there is no acceptable force in the contention of the defence that non disclose of amount by the Complainant in IT Returns is sufficient to rebut the presumption under Section 139 of the Negotiable

Instruments Act and held that the decision quoted by the defence was not helpful to him. But our High Court in K.Ashok Kumar Goud Vs.Sree Ramulu and Another has held “To prove that he advanced Rs.45,00,000/-, the

Complainant failed to establish his source, as no Bank Statements were filed.

Though the Complainant filed the Income Tax Returns of the relevant period, the amount of Rs.45,00,000/- is not reflected in the said Returns, hence, the claim of the Complainant and existence of any legally enforceable debt doubtful. Similar view has been taken by our High Court in K.Venkata Krishna

Prasad Vs. Peram Sai Swarupa, Vijayawada and another (2017 (1) ALT (Crl.) 259 (A.P). Having relied upon the above Case Law, I hold that

Complainant has failed to prove the existence of any legally enforceable debt between her and the Accused. The learned Special Magistrate has failed to follow the march of Law and appreciate the evidence in correct perspective.

-8-

Thus I hold that the Judgment of the learned Special Magistrate is illegal and the same is liable to be set aside.

9.As a result, the Appeal is allowed by setting aside the conviction and sentence imposed thereon against the accused in C.C No 14 of 2016 by the XXI Spl.

Magistrate, Hyderabad. Consequently the Appellant/Accused is acquitted of the

offence under Section 138 of the Negotiable Instruments Act under Section 255 (1)

Cr.P.C. The bail bonds of the Accused shall be cancelled and the fine amount if any paid in the Trial Court, shall be refunded to him.

Dictated to the Stenographer Grade-I, transcribed and typed by

him, corrected and pronounced by me in the open court on this the 7 t h day of August 2018.

Sd/- Moka Suvarna Raju

FAC.VII ADDL. METROPOLITAN SESSIONS JUDGEL:

AT HYDERABAD.

1

IN THE COURT OF THE ADDITIONAL METROPOLITAN SESSIONS JUDGE

FOR THE TRIAL OF COMMUNAL OFFENCES-CUM-VII ADDL

METROPOLITAN SESSIONS JUDGE: HYDERABAD

Tuesday, the 25th day of September 2018

Present: Sri Moka Suvarna Raju, B.Sc., M.L.,

IX ADDL METROPOLITAN SESSIONS JUDGE

FAC VII ADDL METROPOLITAN SESSIONS JUDGE

HYDERABAD

Sessions Case No.241 of 2008

P.R.C No.06 of 2015 on the file of the XII Addl. Chief Metropolitan Magistrate, Hyderabad

Committed by Sri Syed Lateef-Ur-Rahman, XII Addl Chief Metropolitan Magistrate, Hyderabad.

Cr. No.& P.S.Crime No.100 of 2007 of P.S CCS/SIT, Hyderabad.

1.Description of the Shaik Abdul Nayeem @ Sameer S/o

Accused Shaik Abdul Kareem, aged 27 years R/o Aurangabad Town and District, Maharashtra State (Accused .No.11) 2.ChargesU/Secs.120-B r/w 121, 121-A, 122, 123, 124-A, 125 IPC and Sections 4 and 5 of the Explosive Substances Act.

3.Plea of the accused Not guilty 4.Finding of the Judge Not guilty

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5. Sentence or orderAs a result, the Accused No.11 is found not guilty of the Charges under Section 120-B r/w 121, 121-A, 122, 123, 124-A of IPC and Sections 4 and 5 of the Explosive Substances Act and consequently he is acquitted of the above said Charges under Section 235 (1) Cr.P.C. The A.11 who has been in judicial custody shall be set at liberty, if he is not required in any other case.

6.Prosecution conducted Smt. P. Shailaja Additional Public byProsecutor, Grade-I 7.The Accused defended Sri Muzafarullah Khan, Advocate for bythe Accused.

This case was coming before me for hearing on 19.09.2018 in the presence of Smt. P. Shailaja, Additional Public Prosecutor, Grade-I for the State and Sri Muzafarullah Khan, Advocate on behalf of the accused, having stood over for consideration, this Court delivered the following:

J U D G M E N T

1. The State, represented by the Inspector of Police, Special Investigation

Team Hyderabad, had filed charge sheet against the A5, A6, A11, A12 and A13 showing the A1 to A4, A7 to A10, A14 and A15 absconding for the offence under Sections 120-B r/w 121, 121 (A), 122, 123, 124-A, 125 of IPC and

Sections 4 and 6 of the Explosive Substances Act. The original case i.e., S.C

No.59 of 2008 was disposed off on 04.11.2008 against the A5, A6, A12 and

A13. The present case is the split up case against the A.11 from the Original

Sessions Case i.e., S.C No.59 of 2008.

2.The brief averments of the Charge Sheet are: that one Mohammed Abdul

Shahed @ Shahed Bilal (A1) a resident of Moosarambagh, Hyderabad who is the Commander of Jaish-e-Mohammed (JeM)/HUJI hatched criminal conspiracy with Khaja @ Amjad (A.2), Abbu Hamza @ Asif, leader of Lashker-e-Toyeba (A.3), one Khadeer (A.4) brother of Khaja, Kaleem (A.5), Majid (A.6), Rasheed (A.7), Azizul Haq (A.8), Majnu (A.9), Tanveer (A.10), Shaik Abdul Nayee @

3

Sameer (A.11) Shoeb Jagirdhar (A.12), Imran Khan (A.13) and many others to wage war against the State by terrorist activities in the manner of killing innocent people and destructing the properties of the Public and the State with ulterior motive to cause communal disturbances and disruption of States economy; that in pursuance of their criminal conspiracy, Mr.Shahed @ Shahed

Bilal met other accused in Hyderabad, Mecca, Riyad, Jeddah, Dhaka etc., and discussed the said ill-will plans jointly and severally during 2005-07; that they have plotted a design to organize Jehadi and terror activities in Hyderabad and other places of India by blasting explosives substances like RDX/TNT/Gelatin and by killing innocent public and by destroying public properties; that Shaed

Bilal, Khaja, Abu Hamza, Samad and others mobilized finance to carry out illegal activities and induced innocent Muslim Youth; that at the instance of

Abu Hamza, Mr. Shaik Abdul Nayeem @ Sameer (A.11) illegally procured and transported about 10 Kgs of RDX from Bangladesh to Hyderabad on 15.02.2007, took videographs of the prominent places of Hyderabad with his

Handy-Cam; that Mr. Sameer, who functioned as Courier had disclosed during

Narco Analysis Test Conducted on 03.07.2007 at FSL Bangalore that he transported personally about 10 Kgs of RDX from Bangladesh to Hyderabad in the Second Week of February 2007 and handed over the same to Mr. Imran

Khan (A13); that he had also disclosed that he had sent four Pakistani

Nationals from Calcutta to Hyderabad in a Train during January 2007; that he and Mr. Shoeb Jagirdar were provided with shelter and logistics during his visit to Hyderabad in February 2007, in the house of Imran Khan, who is a relative of Shoeb Jagirdhar; that as per the instructions of Abu Hamza, he paid

Rs.50,000/- to Rafi as advance; that he met Shahed Bilal and Rashid through

Abu Hamza in December 2005 in Saudi Arabia. It has been further averred that another accused Shoeb Jagirdar (A.12) was also subjected to Narco

Analysis Test on 04.07.2007 at FSL., Bangalore, wherein, he corroborated the events as disclosed by Mr. Sameer; that Sameer along with two Pakistanis and

4

one Kashmiri were arrested by B.S.F Police on 03.04.2007 at Petropole Check

Post on India Bangladesh border while illegally entering into India from

Bangladesh and was subsequently subjected to Narco Analysis Test by the CID

Police of West Bengal; that in the said Narco Test, Mr. Sameer revealed about bringing 10 Kgs RDX to Hyderabad from Bangladesh for certain Jehadi operations; that the Anti Terrorist Squad (A.T.S) of Maharashtra Police have also arrested Sameer in Aurangabad Arms and Explosives dump case; that during Narco Test, he revealed the same fact etc; that the Inspector of Police

Sri Y.T.R Prasad having received the source of information had lodged a report with the CCS; that the Inspector of Police Administration Mr. Veerappa had registered a case vide FIR No.100 of 2007 for the offence under Sections 120-

B r/w 121, 121 (A), 122, 123, 124 (A), 125 of IPC and Sections 4 and 5 of the

Explosive Substances Act and handed over the Case File to the Inspector

Special Investigation Team Mr. Papaiah for investigation; that the Sub-

Inspector, Special Investigation Team had examined the informant and Mr.

Mohd. Tanveer Ahmed Khan, Sub Inspector of Police Mirchowk P.S and one Mr.

Shaik Mahaboob Ali; that he obtained P.T warrants against the A.12, A.5 and

A.11; that the Inspector of Police, SIT Sri G. Srinivas had filed Charge Sheet against the Accused.

3.After hearing the learned Addl. Public Prosecutor for the State and the learned Counsel for the Accused, Charges under Sections 120-B, 121, 121-A, 122, 123, 124-A of IPC and Sections 4 and 5 of the Explosive Substance Act have been framed against the A11 and when questioned about the Charges, he pleaded not guilty and claimed to be tried.

4. While the case was pending, the A.11 was absconded, due to which the case against him was spilt up. Ultimately on 06.09.20018, the A.11 was produced on P.T Warrant from Tihar Jail. After appearance of the accused, the prosecution has examined its witnesses namely Y.T.R Prasad, the then

Inspectors of Police, Special Investigation Team Mr. Papaiah and G. Srinivas as

5

Pws 1 to 3 and got marked documents Exs.P1 to P6. The learned Addl. Public

Prosecutor has given up the L.Ws. 2 to 6.

5.After closing the Prosecution side evidence, when the A.11 was examined under Section 313 (1) (b) of Cr.P.C, he denied the allegations but reported no defence evidence.

6.Thereafter heard the learned Public Prosecutor and the Accused in person though he was represented by an Advocate. The Accused has submitted Written Arguments praying the Court to acquit him.

7. Now the points for determination are:-

1) Whether the prosecution could prove beyond all reasonable

doubt that the A11 along with other Accused entered into criminal

conspiracy to wage war against the Government of India and for

creating terrorist activities? and

2) Whether the A11 had procured illegally 10 Kgs of RDX from

Bangladesh to Hyderabad with an intention to wage war against

Government of India?

8. Finding: My finding on points 1 and 2 is that the prosecution has failed to prove any of the Charges against the Accused No.11, as such, he is entitled to be acquitted.

9. Reasons for my finding are as under: (9.1) The Principal witness in this case is Mr. Y.T.R. Prasad, the then Inspector of Police, CCS, Hyderabad, who lodged the FIR. He claimed that he was one of the members of the

Special Team constituted by the Commissioner of Police, Hyderabad to probe into the cases pertaining to the blast occurred in Mecca Masjid and other cases relating to Bomb Blasts; that while they were investigating a case in Cr.

No.54 of 2007 of CCS, Hyderabad and Cr. No.198 of 2007 of Gopalapuram

Police Station, he assisted in conducting Scientific Test namely Polygraph,

Brain Mapping and Narco Test; that Mr. Shaik Abdul Nayeem @ Sameer (A.11) and Mr. Shoeb Jagirdar (A.12) were subjected to Narco Test in Cr.No.54 of 2007; that in the Narco Analysis Test, the accused revealed that they have

6

conspired together for illegally transporting 10 Kgs of RDX for using the same in the terrorist activities in India; that A.11 brought the RDX from Bangladesh to Hyderabad and handed over the same to Syed Imran Khan (A.13) for terrorist activities; that Bangladeshi persons came to Hyderabad and converted the illegal imported RDX to manufacture bombs; that one of the bomb prepared from the said RDX was used in the blast occurred in Mecca

Masjid; that they propagated to preach Jihad etc. In his evidence he got marked the report dated: 30.07.2007; an attested copy of Narco Analysis reports of one Mr. Rafi @ Shaik Abdul Kaleem in Cr.No.54 of 2007, one Shoeb

Jagirdar (A.12) in Cr.No. 54 of 2007, one Mr. Imran in Cr.No. 54 of 2007 and a xerox copy of the Narco Analysis Report of Shaik Abdul Nayeem (A.11) the accused concerned in this case, in Cr.No. 54 of 2007.

(9.2) The P.W2 who said to have been commenced the investigation has deposed that he examined the Informant and two more witnesses and recorded their statements; that he got conducted Narco Analysis Test in Cr.

No. 54 of 2007 and the P.W1 had assisted him in such analysis; that after the tests were conducted, he had examined the Experts Dr. Malini and K. Praveen

Kumar at Bangalore. The witness has identified the Narco Analysis Reports of the Accused including the A11. The evidence of the then Inspector Mr. G.

Srinivas is that he verified the investigation made by the Previous

Investigating Officer and after receiving the report from FSL, he filed the charge sheet.

(9.3) The entire investigation revolves upon the Narco Analysis Test said to be conducted to the A.11 before the FSL, Bangalore. The Accused (A11), during his examination under Section 313 (1) (b), though admitted that Narco

Analysis was conducted on him, denied the genuineness of the report furnished before the Court. The prosecution could not examine the Scientific

Experts Dr. Malani and K. Praveen to prove that the test was conducted after following the due procedure. In view of their non-examination, the Accused

7

had lost his opportunity to cross examine them on the procedural aspects such as following the guidelines of the National Human Rights Commission and the validity of the report. It was brought in evidence that the case in Cr.

No.54 of 2007 relates to conspiracy to commit blast, but not the actual blast.

The Hon’ble Apex Court in Selvi Vs. State of Karnataka, has held that the compulsory administration of the impugned Techniques such as Polygraph

Examination, Narco Analysis and Brain Electrical Activation Profile Test, violates the“right against self incrimination”; that the test results can not be admitted in evidence, if they have been obtained through the use of compulsion. How ever, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted in accordance with Section 27 of the Indian Evidence Act. The

Investigating Officer except relying upon the Narco Analysis Report did not collect any other evidence to support the charge of conspiracy.

(9.4) About the allegation against the A.11 that he transported RDX from Bangladesh to Hyderabad and handed over the same to A.12 and gave

Rs.50,000/-, except the statements said to have been given by the Accused during the Narco Analysis Test, could not collect other evidence connecting them with the conspiracy as well as his involvement in other offences. Thus, I hold that the prosecution has failed to prove that the A.11 along with other accused have entered into criminal conspiracy to wage war against the

Government of India. Though the prosecution has alleged that the A.11 along with other Accused made preparation for waging war against the Government of India and also collected Arms and Ammunition, except relying upon the

Narco Analysis Test, the Police did not collect any other material showing the involvement of the A.11. Admittedly no recovery had been effected from any of the Accused including the A.11. Thus, the prosecution has failed to produce any legally acceptable evidence that the A.11 had transported RDX from

Bangladesh to Hyderabad and that he was found in unlawful possession of

8

explosive substances. Thus, the prosecution has failed to prove any of the charges levelled against A11, as such the A.11 is entitled to acquittal.

Accordingly the points are answered.

10. As a result, the Accused No.11 is found not guilty of the Charges under Section 120-B, 121, 121-A, 122, 123, 124-A of IPC and Sections 4 and 5 of the Explosive Substances Act and consequently he is acquitted of the above said Charges under Section 235(1) Cr.P.C. The A11 who has been in judicial custody shall be set at liberty, if he is not required in any other case.

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

and pronounced by me in the open court on this the 25th day of September 2018.

Sd/- Moka Suvarna Raju

IX ADDL METROPOLITAN SESSIONS JUDGE

FAC VII ADDL. METROPOLITAN SESSIONS

JUDGE:HYDERABAD

APPENDIX OF EVIDENCE

(WITNESSES EXAMINED)

For the prosecution: For the defence:

PW.1: Sri Y.T.R Prasad

PW.2: P. Papaiah-None-

PW.2: G. Srinivas

EXHIBITS MARKED

For the prosecution: For the defence:

Ex.P1: The Report dated: 30.08.2007 -Nil-

Ex.P2: An attested copy of the Narco Analysis Report of Mr. Rafi @ Shaik Abdul Kaleem in Cr.No.54 of 2007 (4 sheets) Ex.P3: An attested copy of the Narco Analysis Report of Shoeb Jagirdar (A.12) in Cr.No. 54 of 2007 (3sheets). Ex.P4: An attested copy of the Narco Analysis Report of Mr. Imran in Cr.No. 54 of 2007 (4 sheets).

Ex.P5: A xerox copy of Narco Analysis report of Mr. Shaik Abdul Nayeem (A.11) in Cr No.54 of 2007 (2 sheets)

Ex.P6: FIR bearing No.100 of 2007 of P.S CCS/SIT, Hyderabad.

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MATERIAL OBJECTS MARKED

-Nil-

Sd/- Moka Suvarna Raju

IX ADDL METROPOLITAN SESSIONS JUDGE

FAC VII ADDL. METROPOLITAN SESSIONS JUDGE:

HYDERABAD