Medikurthi Madhavi

CALENDER AND JUDGMENT

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

C.C.No.449 /2015

1Date of Offence08-08-2015 2Date of Complaint08-08-2015 3Date of apprehension of the accused 11-08-2015 4Date of release on bail 11-08-2015 5Date of Commencement of Trial22-05-2019 6Date of Close of Trial03-12-2019 7Date of Judgment15-06-2020

Calendar and Judgment in C.C.No.449/2015

On the file of II Additional Judicial Magistrate of I Class, Adoni.

ComplainantSub Inspector of Police, Kosigi P.S. in Cr.No.73/2015 of Kosigi Police Station.

Accused1. Ediga Kistappa, S/o.Allaiah, aged about 34 years.

2. Ediga Nagendra, S/o.Allaiah, aged about 25 years. Both are residents of Duddi Village, Kosigi mandal.

Section of LawU/Sec.447, 323, 506, 509 r/w Sec.34 of IPC

FindingAccused are found not guilty

Sentence of In the result, the accused are found not guilty for the offence Order punishable under Sec. 447,323,506,509 R/W Sec.34 of IPC and accordingly he is acquitted from the above offence under Sec. 248(1) of Cr.P.C. The bail bonds of the accused shall be in force for six months from today in view of sec.437-A of Cr.P.C. // True Copy //

II ADDL. JUDICIAL MAGISTRATE OF I-CLASS

ADONI

Sd/- M.Madhavi

II ADDITIONAL JUDICIAL MAGISTRATE

OF I CLASS, ADONI.

Copy submitted to: The Hon’ble Chief-Judicial Magistrate-Cum-

Principal Assistant Sessions Judge, Kurnool.

IN THE COURT OF SECOND ADDITIONAL JUDICIAL MAGISTRATE

OF THE FIRST CLASS: ADONI

Present: Smt. M. Madhavi,

Monday, this 15 th day of June,2020

CALENDER CASE No. 449 of 2015

Between : State: Rep. By the Sub­ Inspector of Police, Kosigi Police station …...... Complainant 

Vs.

1. Ediga Kistappa, aged 34 years, S/o Allaiah

2. Ediga Nagendra, aged 25 years, S/o Allaiah Both are residents of Duddi village, Kosigi Mandal, Kurnool district. …....... Accused

This case is coming on 15.06.2020 for final hearing

before me in the presence of the Assistant Public

Prosecutor for the complainant and Sri K. Viswantha Reddy, Advocate for the accused and having stood over for consideration till this day, this court delivered the following :

JUDGEMENT

1.The Sub­ Inspector of police, Kosigi Police

Station has filed a charge sheet against the accused for the offences under Sec. 447,323,506,509 of Indian

Penal Code (In short IPC) in Cr. No. 73 of 2015 of

Kosigi Police Station.

2. The case of the prosecution in brief is as under:

It is alleged that the accused criminally trespassed into the field of PW.1 on 05.08.2015 at 10.30 hours.

PW.1 went to the field and asked the accused as why they were ploughing their field. Then, they picked up quarrel with PW.1 to3 and beat PW.2 with hands and scolded in filthy language. PW.4 and LW.5 came to the field and separated PW.1 and 2 from the hands of accused. While the accused were leaving the scene of offence they threatened PW.3 with dire consequences.

3. Basing on statement of PW.1, PW.5 registered the case in Cr.No. 73 of 2015 under Sec.

447,323,506,509 R/w. Sec. 34 of IPC and investigated the case. During the course of investigation, he examined PW.1 to 4 and LW.5 and recorded their sec. 161

Cr.P.C statements. He examined the scene of offence and prepared rough sketch relating to scene of offence.

He arrested the accused on 11.08.2015 and released them on bail after taking proper sureties. After completion of entire investigation, PW.6 filed charge sheet against the accused.

4.This case was taken on file for the offences punishable under Sec. 447,323,506,509 R/w Sec.

34 of IPC against the accused. On appearance of the accused before this court, the copies of documents were furnished to the accused as contemplated under sec. 207 of Cr.P.C.

5.The accused were examined under Sec.239 of

Cr.P.C. Charges were framed, read over and explained to the accused for the offences punishable under Sec.

447,323,506,509 R/w Sec. 34 of IPC to which the accused denied the commission of the offence and claimed to be tried.

6.In order to prove the guilt of the accused, the prosecution examined PW.1 to PW.6 and got marked Ex.P1 to Ex.P3.

7.After completing the prosecution evidence, the accused were examined under Sec. 313 of Cr.P.C., in respect of the incriminating evidence available in the prosecution witnesses. The substance of the incriminating evidence was read over and explained to the accused in Telugu, to which the accused pleaded ignorance and reported no defence evidence on their side.

 8.Heard arguments. Perused the material available on record both oral and documentary evidence.

09. Now the point for determination is:

10.“Whether the prosecution has proved the guilt

of the accused for the offence under Sec.

447,323,506,509 R/w Sec. 34 of IPC against the accused

beyond all reasonable doubt?”

11.In order to prove the guilt of the accused, the prosecution examined PW.1 to PW.6 and got marked Ex.P1 to Ex.P3.

12.PW.1 who is defacto complainant in this case has deposed that on 05.08.2015 at about 10.30 AM, she along with PW.2 and 3 were ploughing their field, A1 and A2 came to their field and claimed that the field belong to them. The accused abused PW.2/Hari Priya and also threatened PW.3/Nagaraju that they will see the end of PW.3 and bury his dead body. She deposed that A1 slapped PW.2. At that time of incident the surrounding land owners witnessed the incident. She deposed that on the day of incident, she went to police station and lodged report against the accused.

13.PW.2 deposed that on 05.08.2015 at about 10.30

A.M, she along with PW.1 and PW.3/Nagaraju and

PW.4/Ravi were ploughing their field with tractor, A1 and A2 came there and acted highhandedly. She deposed that A1 and A2 slapped her and they thrown her mother (PW.1). A1 and A2 abused her in filthy language and threatened her that they would kill her husband i.e.

PW.3. On the same day of incident, immediately they went to the police station to lodge report.

14.PW.3 deposed that on 05.08.2015 at about 10.30

Am, he along with PW.1 and 3 were ploughing in their field, A1 and A2 came there and quarrel with them. A1 and A2 claimed that the field belong to them. During the altercation, 

A1 slapped PW.2 on her cheek. When he went to the rescue of PW.2, the accused threatened him that they would kill him if he intervened. He deposed that the accused beat PW.2 alone.

15.PW.4 deposed that on 05.08.2015 at about 10.30

AM, there was quarrel took place between PW.1 and the accused at the field of PW.1. During the incident A1 and A2 pushed PW.2. At the time of incident, he was in his field which is situated adjacent to the field of

PW.1 and witnessed the incident. He deposed that he know that extent only.

16.PW.5 investigated the case and supported the prosecution case. PW.6 verified the investigation of

PW.5 and filed charge sheet against the accused.

17.On careful scrutiny of evidence on recorded it is observed that it is the case of the prosecution that the alleged incident occurred on 05.08.2015 at about 10.30 AM. The allegations against the accused that they trespassed in to the land of PW.1, beat PW.2 and abused her in filthy language and further threatened PW.3 with dire consequences.

18.On perusal of Ex.P1, PW.1 mentioned that she leased out the disputed land to the accused. But they failed to pay lease amount to PW.1 and later the accused stated that they would not pay the lease amount to her as they were facing loss in the agriculture and stated that she may cultivate the land. While so, when they were trying to plough the field with tractor, A1 and A2 trespassed in to the land of PW.1 and ploughed the field highhandedly. When they questioned as why they were ploughing the land, the alleged incident occurred. 

19.Admittedly, there are civil disputes between

PW.1 and Accused No.1 with regard to disputed land.

PW.1 filed injunction suit against the accused No.1 and

A1 filed specific performance suit against PW.1 with regard to disputed land. When coming into the evidence part, the prosecution has examined PW.2 to 4 as eyewitnesses to the incident. PW.1 is the defacto complainant, PW.2 is the daughter of PW.1, PW.3 is son­ in­law of PW.1, PW.4 is also relative of PW.1. PW.1 admitted that PW.4 and LW.5/Narasamma are her relatives. She deposed during her cross examination that she stated before the police that while she and her daughter (PW.2) were ploughing the field the accused came to the field. Even in her examination­in­ chief, PW.1 deposed that when she along with PW2 and 3 were ploughing the field on 05.08.2016 at 10.30 AM, A1 and A2 came to their filed and claimed that the field belong to them. But as per Ex.P1, PW.1 came to know that the accused were ploughing the field, she went there and questioned their highhanded act. There is no consistency in the evidence of PW.1 with regard to occurrence of alleged incident. On hand, PW.1 saying in her report that when the accused were ploughing the field they went there and questioned their highhanded act. On the other hand, PW.1 gave evidence that when they were ploughing the field the accused came there and picked up quarrel with them and beat PW.2 and abused her. This court has observed that PW.1 totally changed her version during her evidence before this court. PW.2 and 3 who are daughter and son­in­law of

PW.1 also stated as PW.1. 

20.PW.1 deposed in her examination in chief that

A1 slapped PW.2. Whereas, PW.2 stated that A1 and A2 both slapped her. PW.3 stated that A1 slapped PW.1 on her cheek. PW.4 who is alleged eye witness to the incident did not depose that either A1 or A2 slapped her. He deposed that during the incident A1 and A2 pushed PW.2. PW.4 did not state that the accused abused PW.2 and threatened PW.3 with dire consequences.

As per evidence of PW.1, PW.4 is not neighbouring land owner of PW.1. But, PW.4 stated during his examination in chief that at the time of incident, he was in his field which is situated adjacent to the field of PW.1.

This Court has perused Ex.P3. PW.5 who is investigation officer in this case did not draw the field of PW.4 in his rough sketch near the field of

PW.1 which is scene of offence in this case. From evidence of PW.1 and Ex.P3 it is elicited that PW.4 does not have any land near the scene of offence. PW.4 during his cross examination has stated that there is one kilo meter distance from his filed to PW.1’s filed.

When the field of PW.4 is at the distance of one kilo meter, it is not possible to witness the alleged incident from his field. PW.4 stated that he does not know the civil disputes between PW.1 and the accused.

On the other hand, he is admitting that he is one of the witnesses in the civil suit between PW.1 and the accused. This court found that there is no corroboration in the evidence of PW.1 to 4. On perusal of evidence of PW.4, this court got doubt on his presence at the time of incident. He is saying that he is adjacent land owner of PW.1 and witnessed the incident. But PW.1 is saying that PW.4 is not her neighbouring land owner. As per evidence of Pw.4 her land is situated at about one kilo meter distance to the land of PW.1. If that is so, PW.4 could not see the incident from such distance and there is no reasonable cause shown by the prosecution for the arrival of PW.4 at the time of incident. Even though PW.4 is one of the witnesses in the civil case, he is deposing that he does not know the civil disputes between PW.1 and the accused.

21.Further, PW.1 deposed that the tractor driver by name Gandhi was ploughing the field at the time of incident. Whereas, PW.2 stated that Nagaraju was ploughing the field with tractor and he was driving the tractor at the time of incident. There is no corroboration in the evidence of PW.1 and 2 even though they both are mother and daughter respectively. The investigating officer did not choose to examine the so called Gandhi who is alleged driver of tractor. In fact, it is not the case of prosecution that they were ploughing the field. As per EX.P1 accused were highhandedly ploughing the land and PW.1 to 3 went there and objected the same.

22.This court has found material discrepancies in the evidence of PW.1 to 4 and the evidence of PW.1 is not corroborated by any witness and PW.1 to 3 have change their entire version and Ex.P1 is not corroborated by their evidence. In order to prove civil disputes between them, the accused No.1 has furnished certified copy of sale agreement, adangal, 1­

B Namuna and tax receipt, which are in the name of A1.

23.It is further observed that the alleged incident was occurred on 05.08.2015 and the FIR was lodged on 08.08.2020 and there is inordinate delay which is not explained by the prosecution. PW.1 says that she lodged complaint on the same day of incident, but as per Ex.P1 and P2 it is elicited that FIR was lodged on 08.08.2015 and column No.8 of FIR the reason is mentioned as “Due to fear of accused”. But the evidence of PW.1 is not so to that extent. Even in

Ex.P1 she did not mention the reasons for delay in lodging FIR. Even in her evidence before this court, she did not explain the reasons for the delay in lodging FIR. Moreover, she deposed that she lodged report on the same day of incident. PW.5 who is investigation officer stated that she did not give complaint on alleged date of incident i.e. on 05.08.2015. This court has found 3 days of delay in lodging FIR. It is settled law that delay in lodging

FIR is not fatal in all cases if the prosecution explains reasons for the delay. But in the present case, the prosecution has failed to explain the reasons for the delay in lodging FIR. It is settled law that prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding its true version. In case, there is some delay in filing of FIR, the complainant must give explanation for the same. It is settled law that delay is lodging FIR does not make the complainant’s case improbable when such delay is properly explained. Delay in lodging FIR often results in embellishment, which is a creature of an afterthought. In the present case, there are civil disputes between both parties with regard to disputed land and they are pending.

Moreover, this court did not find corroboration in the evidence of prosecution witnesses and their evidence is inconsistent and contradictions were also found which creates cloud on entire prosecution case. In the above circumstance, this court is inclined to look the contents and allegations of Ex.P1 in suspicious as those are afterthought to overcome civil disputes.

24.In view of above reasons, this court is of view that the prosecution has failed to prove the guilt of the accused beyond all reasonable grounds. Hence, the accused are entitled for acquittal.

25.IN THE RESULT, the accused are found not guilty for the offence punishable under Sec.

447,323,506,509 R/W Sec.34 of IPC and accordingly he is acquitted from the above offence under Sec. 248(1) of

Cr.P.C. The bail bonds of the accused shall be in force for six months from today in view of sec.437­A of

Cr.P.C.

Typed and pronounced by me in the open court, this 15 th

day of June, 2020.

Sd/- M.Madhavi

II ADDITIONAL JUDICIAL MAGISTRATE

OF I CLASS, ADONI.

APPENDIX OF EVIDENCE 

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE

PW.1:Ediga Vijaya Lakshmi NIL PW.2:Ediga Hari Priya PW.3:Ediga Nagaraju

PW.4:Ravi Kumar PW.5:G. Krishna Murthy PW.6:G. Imthiyaz Basha

EXHIBITS MARKED

FOR PROSECUTION

Ex.P1:Complaint Ex.P2:FIR Ex.P3:Rough Sketch

FOR DEFENCE:

EX.D1:Certified copy of agreement of sale Ex.D2:Certified copy of adangal EX.D3:Certified copy of 1­B Namuna Ex.D4:Certified copy of Tax Receipt

METERIAL OBJECT MARKED

FOR PROSECUTION: NIL FOR DEFENCE: NIL

// True Copy //AL MAGISTRATE OF I-C

ADONI

Sd/- M.Madhavi

II ADDITIONAL JUDICIAL MAGISTRATE

OF I CLASS, ADONI.

1

CALENDER AND JUDGMENT

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

C.C.No. 135/2016

1Date of Offence16-04-2015 2Date of Complaint28-03-2016 3Date of apprehension of the accused - 4Date of release on bail - 5Date of Commencement of Trial03-02-2020 6Date of Close of Trial03-02-2020 7Date of Judgment04-06-2020

Calendar and Judgment in C.C.No.135/2016

On the file of II Additional Judicial Magistrate of I Class, Adoni

ComplainantM/s Shriram City Union Finance Ltd. Rep.By G. Rajesh, S/o Jayaraj, aged 28 years, Office Assistant, R/o Adoni, Kurnool District in CF.R.No.2354/2016.

AccusedMohammed Eqbal, S/o Hybasha, 38 years, Muslim, r/o H.No.21-200-13, Chanda Saheb Darga, Adoni, Kurnool (Dt).

Section of LawU/ Sec.138 of Negotiable Instruments Act

FindingAccused is found not guilty

Sentence of In the result, the accused is found not guilty for the offence Order punishable under Sec.138 of Negotiable Instruments Act and accordingly he is acquitted from the above offence under Sec.255 (1) of Cr.P.C. The bail bonds of the accused shall be in force for six months from today in view of Sec.437-A of Cr.P.C. // True Copy //

II ADDL. JUDICIAL MAGISTRATE OF I-CLASS

ADONI

Sd/- M.Madhavi

II ADDITIONAL JUDICIAL MAGISTRATE

OF I CLASS, ADONI.

Copy submitted to: The Hon’ble Chief-Judicial Magistrate-Cum-

Principal Assistant Sessions Judge, Kurnool.

2

IN THE COURT OF II ADDL. JUDICIAL MAGISTRATE OF I CLASS: ADONI

Present: Smt. M.Madhavi, II Additional Judicial Magistrate of I Class, Adoni

Thursday, the 4th day of June, 2020

CALENDER CASE No.135 of 2016

Between : M/s Sriram City Union Finance Ltd. Rep.By G. Rajesh, S/o Jayaraj, 28 years,

Office Assistant, R/o Adoni, Kurnool (Dt). …...... Complainant

Vs.

Mohammed Eqbal, S/o Hybasha, 38 years, r/o H.No.21-200-13 Chanda Saheb Darga,

Adoni, Kurnool District. …....... Accused

This case is coming on 04-06-2020 for final hearing before me in the presence of Sri. P.Rajendra Prasad, Sri C.Soma Sekhar, Sri K.Vijaya Bhaskar Reddy, Advocates for the complainant and Sri G.C.Ranganna, Advocate for the accused and having stood over for consideration till this day, this court delivered the following :

JUDGMENT

1.This complaint filed by the complainant against the accused under Sec.138 and 142 of Negotiable Instruments Act (In short N.I. Act) R/w

Sec.420 of Indian Penal Code.

2. Brief averments of complaint are as under:

The accused obtained Trade Finance loan from the complainant company as per terms and conditions of the agreement bearing

No.ADONITF11290005. It is alleged that on demand the accused issued cheque bearing No.119999 of ING VYSYA Bank Dt: 16.04.2015 for an amount of Rs.3,74,000/- to the complainant towards discharge of his liability. The complainant presented the said cheque in AXIS Bank, Adoni for collection on 22-04-2015 and the same was returned with endorsement as “Account

Closed” by ING VYSYA Bank, Adoni and the same is informed to the complainant along with cheque return memo of ING VYSYA Bank, Adoni dt.28- 04-2015. It is alleged that the accused knowing fully well that he has no 3 amount in his account and the issued cheque with dishonest intention. The complainant got issued lawyer’s notice dt.06-05-2015 to the accused to

Reg.post with acknowledgement due calling upon him to pay the amount due under the above said dishonoured cheque within 15 day from the date of service of legal notice. The accused received notice on 23-05-2015, but failed to comply the same. Hence, this complaint.

3.This case was taken on file for the offences punishable under

Sec.138 R/w Sec.142 of N.I. Act against the accused by the Hon’ble I Addl.

Judicial First Class Magistrate, Adoni. On appearance of the accused, the copies of documents were furnished to the accused as contemplated under sec.207 of Cr.P.C.

4.The accused was examined under Sec.251 of Cr.P.C. Substance of accusation is read over and explained to the accused for the offence under

Sec.138 R/w Sec.142 of N.I. Act to which the accused denied the commission of the offence and claimed to be tried. Later, this case was received by transfer from I-Addl. Judicial First Class Magistrate, Adoni for disposal according to law as per the proceedings of Honourable Principal District

Judge, Kurnool Vide Dis.No.5632/OP.CELL/2019, dt.06-12-2019.

5.P.W.1 was examined on behalf of complainant and got marked

Ex.P.1 to P.6.

6.After completing the evidence of complainant, the accused was examined under Sec.313 of Cr.P.C., in respect of the incriminating evidence available in the prosecution witnesses. The substance of the incriminating evidence was read over and explained to the accused in Telugu, to which the accused pleaded ignorance and reported no defence evidence on his side.

4

7.Heard arguments. Perused the material available on record both oral and documentary evidence. The counsel for the complainant also submitted his written arguments.

8. Now the points for determination are:

i) Whether Ex.P.1 cheque was drawn by the accused for discharge of any legally enforceable debt or other liability?

ii) Whether the complainant brought home the guilt of accused

beyond preponderance of probabilities for the offence under

Sec.138 read with Sec.142 of N.I Act?

9.The counsel for the complainant has filed written arguments and submitted that at the request of accused the complainant company granted

Trade Loan as per terms and conditions of the agreement. The accused executed proper and necessary documents in favour of Complainant

Company. During the pendency of the loan instalments on demand, on 16-04-2015 the accused issued cheque bearing No.119999 of ING Vysya

Bank Ltd., Adoni for sum of Rs.3,74,000/- towards the discharge of his liability for the above said loan. He submitted that he presented the cheque in the bank and the same was dishonoured as the accused closed his account.

Later, he issued legal notice, but the accused did not give his reply. He further submitted that during the course of cross examination by the counsel of the accused he categorically admitted that the accused obtained loan from the complainant company. It clearly goes to show that the accused obtained loan and he is indebted to the complainant company. He submitted that the accused did not deny the signature and contents of the cheque. Therefore, the presumption can be drawn in favour of the complainant that as on the date of issuing of the cheque the accused is indebted and to discharging of the legal enforceable debt, he issued the cheque. The legal notice sent by the complainant company was served on the accused but the accused never comply the same or denied the said legal notice. He submitted that the 5 statutory presumption can be drawn under Sec.118 of N.I. Act in favour of complainant. He contended that the accused never filed any peace of document to show that he was discharging entire loan amount to the complainant company nor he did entered into witness box to rebut any presumption under Sec.139 of N.I Act. He submitted that the accused categorically admitted as he has taken loan and also admitted that the signature on Ex.P.3. Therefore, according to Indian Evidence Act, when admission is made regard to subject matter it is not necessary to prove by filing of document. He submitted that the complainant company proved its case and the accused is entitled for conviction.

10.The counsel for the accused argued that the complainant company has failed to produce alleged agreement through which they are claiming the cheque amount. He contended that the complainant company has failed to prove the purpose of issuance of cheque. He further argued that PW.1 is not competent person to give evidence but the Managing

Director of company is the authorised person to give evidence. He argued that PW.1 is not duly appointed by the competent person. The alleged cheque was also taken earlier to the alleged agreement and there is no legally enforceable debt. He argued that as per chief affidavit of PW.1, even the alleged debt is also time barred and there is no legally enforceable debt exist between complainant and the accused as on the date of offence. He argued that the accused is not liable for the offence under Sec. 138 of N.I Act.

Point No.1&2:-

11.In order to prove the guilt of the accused, the prosecution examined P.W.1 and got marked Ex.P.1 to Ex.P.6. The Senior Office Assistant gave evidence on behalf of complaint.

6

12.It is the case of the complainant company that the accused had obtained Trade Loan from his company by executing agreement with terms and conditions. But the complainant did not mention either in the complaint or in the evidence or in his written arguments as how much amount the accused had obtained as loan from his company. Further, the complainant did not mention the date of agreement when the accused entered into agreement in favour of complainant. This court has perused the legal notice as well as complaint, but the complainant company nowhere mentioned when they issued loan amount to the accused. But, P.W.1 in his chief affidavit has mentioned date of agreement as 19-11-2011 but did not mention the loan amount. It is the contention of the complainant that the accused has failed to pay instalments and on demand he issued cheque for an amount of

Rs.3,74,000/- on 16-04-2015. The complainant did not mention anywhere in the complaint or in his evidence as how many instalments were paid by the accused and as how many instalments were due to the complainant company. The complainant did not file any iota of document to prove that the accused had obtained loan from the complainant company. As per complainant’s version, a written agreement was executed in their favour by the accused. If that is so, what are the circumstances which prevented them to file original written agreement and loan particulars before this court is a reasonable doubt raised before this court which is not explained by the complainant. PW.1 deposed in his cross examination that in the year 2015 they filed case before the Arbitrator. He further deposed that they did not file any document to show that they approached arbitrator. As per the evidence of P.W.1 it is elicited that the alleged agreement was executed in the year 2011. The complainant itself is vague one which does not disclose full details such as date of agreement, loan amount, as how many instalments were due by the accused etc which are very much required which creates reasonable suspicion on alleged debt.

7

13.As per chief affidavit of P.W.1, the agreement was executed by the accused on 19-11-2011 and the alleged cheque was issued on 16-04-2015. The instalments, whether paid by the accused in meantime or not is silent and there is no explanation from the complainant company on that regard. It is the argument of defence counsel that even though the court presumes that there is agreement, it is time barred and there is no legally enforceable debt in between complainant’s company and the accused. As rightly argued by the counsel for the accused, the debt was time barred as per evidence of PW.1 which is mentioned in his chief affidavit i.e., 19-11-2011. The counsel for the complainant submitted that the date of agreement as 19-11-2015 in his written arguments. To confirm the date of agreement, there is no material placed before this court. The complainant did not mention the date of agreement in his complaint and there is no iota of document was filed to prove his contention and he did not explain the circumstances which prevented him to file original agreement before this court to prove their case. But, P.W.1 deposed in his cross examination that as per their complaint the accused had taken loan in the year 2011. From the evidence of P.W.1 it is elicited that the alleged agreement was executed by the accused in the year 2011. It is the contention of the counsel for the accused that the alleged debt is time barred and there is no legally enforceable debt exist between complainant and accused as on the date of alleged offence.

14.It is the argument of counsel for complainant that the accused did not enter into witness box and did not adduce any iota of evidence and the presumption can be drawn in favour of complainant. There is no doubt that the presumption in Sec.139 of N.I. Act is a rebuttable one. It can be rebutted either by direct evidence or by the attendant circumstances. The 8 complainant has to prove that the cheque which was issued for discharging the debtor legal liability in whole or in part.

15.There can be no doubt that there is an initial presumption which favours the complainant. In RANGAPPA VS. MOHAN [AIR 2010 SC 1898] it is held that it is settled position that when an accused has to rebut the presumption under Sec.139 of Act, the standard of proof for doing so is that of preponderance of probabilities. Therefore, if the accused is able to raise a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. It is further clarified in the above citation that the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.

In KRISHNA JANARDHAN BHAT Vs. DATTATREYA G.HEGDE [AIR 2008 SC 1325] held that “Question as to whether the presumption under

Sec.118 of N.I Act, have been rebutted or not have to be considered by looking into the entire material on record and it is not necessary for the accused to prove his defence beyond reasonable doubt nor he is required to step into the witness box to prove his defence”.

16.Hence, in view of ratio laid down in the above cases the argument of complainant cannot be accepted. From the evidence of P.W.1, this court came to know that the alleged loan was taken in year 2011 and the alleged cheque was drawn in the year 2015. There is no evidence placed before the court that that whether the accused had paid any instalments in meanwhile or not. The complainant even did not file original agreement which was executed by the accused in his favour. It is well settled law that it is always burden lies on the prosecution to prove the case beyond all reasonable doubt. The presumptions under Sec.118 and 139 of Act are rebuttable in 9 nature. Once the accused rebut the presumption iyt shifts to the complainant. It is further settled law that the burden of proof on the accused is always on preponderance of probabilities. In the present case, the accused has successfully rebutted the legal presumptions raised in favour of complainant. In view of evidence available before this court, this court holds that there is no legally enforceable debt exist between complainant company and accused.

17.Therefore, in view of above discussion, this court holds that the complainant has failed to prove the legally enforceable debt of the accused beyond all reasonable doubts and the accused is entitled for acquittal.

18.In the result, the accused is found not guilty for the offence punishable under Sec.138 of Negotiable Instruments Act and accordingly he is acquitted from the above offence under Sec.255(1) of Cr.P.C. The bail bonds of the accused shall be in force for six months from today in view of

Sec.437-A of Cr.P.C.

Typed and pronounced by me in the open court on this day, this the 4th day of June, 2020.

Sd/- M.Madhavi

II ADDITIONAL JUDICIAL MAGISTRATE

OF I CLASS, ADONI.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTIONFOR DEFENCE

P.W.1: G.RajeshNone

EXHIBITS MARKED

FOR PROSECUTIONFOR DEFENCE

Ex.P.1: Authorization letter in favour of G.RajeshNil

Ex.P.2: Original dishonoured cheque for an amount of Rs.3,74,000/-, dt.16-4-2015 drawn on ING Vysya Bank Ltd., Adoni

Ex.P.3: Counter file of Axis Bank, Adoni

Ex.P.4: Cheque return memo of ING Vysya Bank, Adoni, dt.28-5-2015 10

Ex.P.5: Legal notice, dt.6-5-2015

Ex.P.6: Served acknowledgment

METERIAL OBJECT MARKED

FOR PROSECUTIONFOR DEFENCE

NIL NIL

// True Copy //I ADDL. JUDICIAL MAGISTRATE OF I-

CLASS ADONI

Sd/- M.Madhavi

II ADDITIONAL JUDICIAL MAGISTRATE

OF I CLASS, ADONI.

1

CALENDER AND JUDGMENT

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

C.C.No. 558/2017

1Date of Offence24-09-2017 2Date of Complaint25-09-2017 3Date of apprehension of the accused 27-09-2017 4Date of release on bail 27-09-2017 5Date of Commencement of Trial17-02-2020 6Date of Close of Trial11-03-2020 7Date of Judgment04-06-2020

Calendar and Judgment in C.C.No.558/2017

On the file of II Additional Judicial Magistrate of I Class, Adoni.

ComplainantSub Inspector of Police, Isvi P.S. in Cr.No.56/2017 of Isvi Police Station.

AccusedM.Nataraj S/o M.Pampaiah, aged 72 years, D.No.21/358/P 16 C, Near Mandigeri, Kallumatham, Adoni.

Section of LawU/Sec.509, 506 of IPC

FindingAccused is found not guilty

Sentence of In the result, the accused is found not guilty for the Order offence punishable under Sec.509, 506 of IPC and accordingly he is acquitted from the above offence under

Sec.248 (1) of Cr.P.C. The bail bonds of the accused shall be in force for six months from today in view of Sec.437-A of

Cr.P.C. // True Copy //

II ADDL. JUDICIAL MAGISTRATE OF I-CLASS

ADONI

Sd/- M.Madhavi

II ADDITIONAL JUDICIAL MAGISTRATE

OF I CLASS, ADONI.

Copy submitted to: The Hon’ble Chief-Judicial Magistrate-Cum-

Principal Assistant Sessions Judge, Kurnool.

2

IN THE COURT OF II ADDL. JUDICIAL MAGISTRATE OF I CLASS: ADONI

Present: Smt. M.Madhavi, II Additional Judicial Magistrate of I Class, Adoni

Thursday, the 4th day of June, 2020

CALENDER CASE No.558 of 2017

Between : State: Rep. By the Sub-Inspector of Police,

Isvi Police station . …...... Complainant

Vs.

M.Nataraj S/o M.Pampaiah, 72 years, D.No.21/358/P 16 C, Near Mandigeri,

Kallumatham, Adoni. …....... Accused

This case is coming on 07-04-2020 for final hearing before me in the presence of the Assistant Public Prosecutor for the complainant and Sri

K.Virupaksha Reddy, Advocate for the accused and having stood over for consideration till this day, this court delivered the following:

JUDGMENT

1.The Sub- Inspector of police, Isvi Police Station has filed a charge sheet against the accused for the offences under Sec.509, 506 of Indian

Penal Code (In short IPC) in Cr.No.56 of 2017 of Isvi Police Station.

2. The case of the prosecution in brief is as under:

The defacto complainant is conductor of RTC bus in APSRTC Adoni

Depot and resident of Yemmiganur Town. It is alleged that on 24.09.2017 when she was conductor of RTC Bus bearing No. AP 21 Z 0473 from Adoni to

Siruguppa, at about 4.00 PM, the bus left Siriguppa to Adoni has reached

Peddaharivanam Bus stop at 4.45 PM. Three persons boarded in the bus at

Peddaharivanam. The accused also boarded at Peddaharivanam. It is alleged that the accused scolded the RTC employees that they are not leaving the passengers at APSRTC New bus stand for which P.W.1 told him not to scold them. Then, the accused grew wild and scolded her in most abusive language and insulted her modesty and also threatened PW.1 with dire 3 consequences to see that she will be removed from her service. The incident was pacified by P.W.2 to P.W.4.

3.Basing on written complaint of PW.1, PW.6 registered a case in

Cr.No.56 of 2017 under Sec.509, 506 of IPC and issued FIR to the all concern officers and investigate the case. PW.6 recorded their statements of P.W.1 to

P.W.5. He visited scene of offence and prepared rough sketch relating to scene of offence. He served Sec.41-A Cr.P.C notice to the accused on 27-09-2017. The S.I. of Isvi police station has verified the investigation of

PW.6 and found correct and filed charges sheet against the accused after completion of entire investigation.

4.This case was taken on file for the offences punishable under

Sec.509, 506 of IPC against the accused. On appearance of the accused

before this court, the copies of documents were furnished to the accused as

contemplated under sec.207 of Cr.P.C.

5.The accused was examined under Sec.239 of Cr.P.C. Charges are framed for the offence punishable Under section 509, 506 of IPC. Charges were read over and explained to the accused to which the accused denied the commission of the offence and claimed to be tried.

6.In order to prove the guilt of the accused, the prosecution examined P.W.1 to P.W.6 and got marked Ex.P.1 to Ex.P.3.

7.After completing the prosecution evidence, the accused was examined under Sec.313 of Cr.P.C., in respect of the incriminating evidence available in the prosecution witnesses. The substance of the incriminating evidence was read over and explained to the accused in telugu, to which the accused pleaded ignorance and reported no defence evidence on his side.

4

8.Heard arguments. Perused the material available on record both oral and documentary evidence.

09. Now the point for determination is:

“Whether the prosecution has proved the guilt of the accused

for the offence under Sec.509, 506 of IPC against the accused

beyond all reasonable doubt?”

10.In order to prove the guilt of the accused, the prosecution examined P.W.1 to P.W.6 and got marked Ex.P.1 to Ex.P.3.

11.P.W.1 who is defacto complainant in this case has deposed that on 27-09-2017 when she was working as conductor to the bus from Adoni to

Siruguppa and Siruguppa to Adoni, the accused boarded in the bus at about 4.45 PM at Peddaharivanam village. She deposed that the accused asked her whether the bus will go to Kotha Bus stand or not. For which she did not reply anything. Then, the accused abused in filthy language as the drivers of

RTC buses were not going to Kotha Bus stand, Adoni. She deposed that the accused threatened her that he would see her and stated that he know the higher authorities in RTC Depot. He further threatened that he would see to remove her from the job in RTC. Then, they dropped the accused at Kotha

Bus stand, Adoni. Later, she informed the same to the controller. Then, he advised her to lodge complaint in the police station against the accused as he abused her and RTC drivers. On the same day, she went to police station in the night hours. But, the police called her to come on the next day evening. Then, on the next day evening she went to police station and lodged report against the accused.

12.P.W.2 who is driver of RTC bus has deposed that on 24.09.2017 he and PW.1 were working as driver and conductor respectively to the bus 5 bearing No.AP21 Z 0473 to Adoni to Siruguppa and Siruguppa to Adoni. He deposed that they reached Peddaharivanam at 4.45 PM. There three passengers boarded in the bus. The accused is one of the passengers who boarded at Peddaharivanam village. The accused asked the conductor whether the bus will go to the RTC Bus stand or not. She replied that the bus will go to RTC bus stand. Then, the accused raised his voice and threatened

P.W.1 to give proper answer. Then, P.W.1 replied that the bus will go to RTC

Bus stand. Then, the accused abused the driver and conductors of RTC buses in very filthy language and stated that they are not proceeding our buses towards RTC Bus stand. He deposed that the accused abused P.W.1 in filthy language and further threatened her that he will see to remove her from the job. Then, they dropped the accused in RTC bus stand and later, informed the same to the controller and higher authorities. He deposed that he and

P.W.1 went to II Town police station to lodge complaint but they told that the case will come under the jurisdiction of Isvi police station due to which they went to Isvi police station on the next day of evening.

13.P.W.3 deposed that on 24.09.2017 at about 4.00 PM, he along with P.Krishna and some other persons get in APSRTC Bus in Siruguppa and

P.W.1 was conductor to the bus and P.W.2 is the driver of RTC Bus. He deposed that the accused get into the bus at Peddaharivanam village. When the accused asked whether the bus will go to the new bus stand, Adoni for which she replied that the bus will go to the new bus stand. Then, the accused abused her and some of the bus drivers were not proceeding to the

New bus stand, Adoni. When the accused was abusing the drivers of RTC buses, the conductor i.e., P.W.1 stated with the accused that as why he was abusing the drivers of RTC buses. He also abused P.W.1. The accused stated that he will get remove P.W.1 from her job. There was wordy altercation took place. On the next day, P.W.1 lodged report against the accused.

6

14.P.W.4 deposed that on 24.09.2017 at about 4.00PM, he boarded in

APSRTC bus at Siruguppa to reach Adoni. P.W.3 is also boarded in bus. He deposed that three persons boarded at Peddaharivanam village. The accused boarded at Peddaharivanam village. The accused asked P.W.1 whether the bus will go to the new bus stand Adoni. Then, the accused stated with P.W.1 that he will get remove the job of P.W.1. P.W.1 cried for the same.

15.P.W.5 did not depose anything against the accused as well as the incident. P.W.6 who is investigating officer has supported the case.

16.On careful scrutiny of evidence on record it is observed that it is the case of the prosecution that the accused had abused P.W.1 and drivers of the APSRTC drivers as they are not proceedings the buses to new bus stand,

Adoni. It is further alleged that the accused threatened P.W.1 that he will get remove her from the job. In order to prove its case, the prosecution has examined P.W.1 who is defacto complainant, P.W.2 who is driver of bus, P.W.3 to P.W.5 who are passengers of bus, P.W.6 who is investigation officer.

17.When coming into evidence of P.W.1, she stated that the accused asked her whether the bus will go to New bus stand, Adoni or not, for which she did not reply anything. P.W.1 herself stated that the accused abused RTC bus drivers in filthy language as they were not proceeding the buses to the new bus stand, Adoni. This court has perused the entire testimony of P.W.1, but P.W.1 did not state that the accused abused her in filthy language. In

Ex.P.1, P.W.1 stated that the accused abused in very filthy language. But when coming into her testimony before this court, she stated that the accused had abused the drivers of RTC bus. It is the defence taken by the accused that at the instance of controller of RTC Depot, Adoni, P.W.1 foisted 7 false case against the accused as the controller was suspended by the complaint of the accused.

18.There is dispute arose in between the conductor and the accused as the RTC drivers are not proceedings the buses towards New bus stand,

Adoni. As per evidence of P.W.2, he admitted that as per route survey they had to proceed RTC buses to RTC Bus stand for every trip. He also admitted that his authorities instructed to turn the buses from Thimma Reddy bus stop.

19.P.W.2 who is driver of RTC bus has stated that the accused abused the drivers of RTC buses as well as P.W.1. But, P.W.1 did not state that the accused abused her. P.W.1 and P.W.2 stated that the accused threatened that he will get remove the job of P.W.1. When coming to the evidence of P.W.3 and P.W.4, who are alleged passengers and eye witnesses to the incident, this court got reasonable doubt whether they really travelled in the bus on the alleged date of incident. P.W.1 herself stated that she did not give details of passengers who travelled in the bus on the alleged date of incident. All the witnesses were examined by the police on day of registering the case itself.

Ex.P.1/Police Report was lodged on 25-09-2017 at 17-00 hours. The investigating officer had examined all the witnesses on the same day. The investigation officer himself deposed in his evidence that P.W.1 did not give details and particulars of passengers who travelled on the alleged date of incident. If such is the case, how can he examine P.W.3 to P.W.5 who alleged to be passenger of bus and how he identified them is a doubtful circumstance which was not explained by the prosecution and creates cloud on the entire prosecution case. This court got reasonable doubt that how can the I.O. had indentified P.W.3 to P.W.5 even though he did not receive information from

P.W.1 who was conductor of bus. P.W.1/conductor is the best person, who can give details of passengers and who can identify who travelled in the bus on the alleged date of incident. But, in the present case, Investigation Officer 8 himself stated that he did not receive details of the passengers from P.W.1.

As per evidence of P.W.1, she was not abused by the accused to attract the offence under Sec.509 of IPC. When coming into the offence under Sec.506 of

IPC this court did not find reliable evidence. This court got reasonable doubt on the testimony of P.W.3 to P.W.5 whether they really travelled on alleged date of incident.

20.It is the burden lies on the prosecution to prove the guilt of the accused beyond all reasonable doubts for the alleged offence. In the present case, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubts by adducing reliable evidence. Hence, the accused is entitled for benefit of doubt.

21.In view of above discussion, this court holds that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubts and the accused is entitled for acquittal.

22.In the result, the accused is found not guilty for the offence punishable under Sec.509, 506 of IPC and accordingly he is acquitted from the above offence under Sec.248 (1) of Cr.P.C. The bail bonds of the accused shall be in force for six months from today in view of Sec.437-A of Cr.P.C.

Typed to my dictation corrected and pronounced by me in the open court, this the 4th day of June, 2020.

Sd/- M.Madhavi

II ADDITIONAL JUDICIAL MAGISTRATE

OF I CLASS, ADONI.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTIONFOR DEFENCE

P.W.1: S.VijayaNone P.W.2: Md.Sharif P.W.3: H.Narayana P.W.4: Ramakrishna P.W.5: K.Nanda 9

P.W.6: G.Ramanath

EXHIBITS MARKED

FOR PROSECUTIONFOR DEFENCE

Ex.P.1: ComplaintNil Ex.P.2: F.I.R. Ex.P.3: Rough Sketch

METERIAL OBJECT MARKED

FOR PROSECUTIONFOR DEFENCE

NIL NIL

// True Copy //

I ADDL. JUDICIAL MAGISTRATE OF I-CLASS

ADONI

Sd/- M.Madhavi

II ADDITIONAL JUDICIAL MAGISTRATE

OF I CLASS, ADONI.

CALENDER AND JUDGMENT

IN THE COURT OF II ADDITIONAL JUDICIAL MAGISTRATE OF

I CLASS :: ADONI.

C.C.No. 284/2012

1Date of Offence24/25-12-2011 2Date of Complaint25-12-2011 3Date of apprehension of the accused31-12-2011 4Date of release on bail01-02-2012 5 Date of Commencement of Trial21-11-2017 6Date of Close of Trial06-04-2018 7Date of Judgment27-04-2018

Calendar and Judgment in C.C.No.284/2012

On the file of II Additional Judicial Magistrate of I Class, Adoni.

ComplainantStation House Officer, Kosigi P.S. in Cr.No.120/2011 of Kosigi, Police Station

AccusedA1) Vadde Narayana, S/o Vadde Narasappa, aged 45 years. A2) Harijana Nagappa, S/o Harijana Hussaini, aged 27 years.

Both are residents of Agasanur village, Kosigi mandal.

OffenceLurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment, Theft in dwelling house, etc, Dishonesty receiving stolen property.

Section of LawU/Sec.457, 380 or 411 of I.P.C.

FindingAccused is found not guilty

Sentence of In the result, the accused No.2 is not found guilty for the Order offence punishable under Sec.457,380 IPC or 411 IPC., Accordingly, the accused is acquitted under Sec.248(1) of Cr.P.C. for the said offence. The bail bonds of the accused shall be in force till six months as per Sec.437.A of Cr.P.C. Since no property is kept with the court, no orders was passed.

II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

ADONI.

Copy submitted to: The Hon’ble Chief-Judicial Magistrate-Cum-

Principal Assistant Sessions Judge, Kurnool.

IN THE COURT OF THE SECOND ADDITIONAL JUDICIAL

MAGISTRATE OF THE FIRST CLASS: ADONI

Present: Smt. M. Madhavi,

II Additional Judicial Magistrate of the First Class, Adoni

Friday, this 27th day of April, 2018

CALENDER CASE No. 284/2012

State:- Rep. By Sub Inspector of Police Kosigi Police Station.

......Complainant

Vs

1)Vadde Narayana, S/o Vade Narasappa, aged 45 years

2) Harijana Nagappa, S/o Harijana Hussaini, aged 27 years

Both are resident of Agasanur village, Kosigi Mandal.

....... Accused

This case is having come before me on 27.4.2018 for final hearing in the presence of Asst. Public Prosecutor for the State of Sri. K. Hanumesh and K.Lavanya Advocates for the accused and having stood over to this day for consideration, this court made the following:-

JUDGMENT

1. The Sub- Inspector of Police, Kosigi Police Station has filed a charge sheet against the accused for the offences under sec. 457-380 IPC or 411 IPC in Cr.No.120/2011 of Kosigi Police Station.

2. The brief facts of the case are as:

The defacto complaint/PW.1 is resident of Agasanur village. The accused are also residents of Agasanur village. The incident occurred on intervening night of 24/25.12.2011 at Goddes Sri. Maremma Temple of Agasanur Village, Kosigi

Mandal in which some unknown offenders committed out breaking by night entered into the temple through unlocked doors and committed the theft of silver face of Goddess Maremma weighing 265 grams, worth amount Rs.

20,000/. PW.1 came to the police station and lodged report. PW.6 registered the case. Basing on the report of PW.1 as crime No.120/2011 and investigated the case. During the course of investigation PW.6 examine

LW.1 to 5 and recorded their statements. Basing on credible information

PW.6 arrested the accused on 31-12-2011 at about 10:45 hours at kosigi railway station and seized Goddess Maremma Silver Face weighing about 250 to 265 grams which was stolen in this case under cover of panchanama.

There after he arrested the accused and sent him for remand on the same day. PW.5 conducted test identification period with PW.1 in which PW.1 duly identified his respective stolen property. After completion of investigation

PW.6 filed charge sheet against both the accused.

3. This case was taken on file for the offence punishable under

Sec.457, 380 or Sec.411 of IPC against the accused. On appearance of the accused before this court, the copies of documents were furnished to the accused as contemplated under sec.207 of Cr.P.C.

4. The accused No.2 was examined under Sec.239 of Cr.P.C. The accused No.1 died and the case against A.1 is abated. Charges framed against the accused for the sections 457,380 or 411 of IPC. Charges were read over and explained to the accused in Telugu to which the accused denied the commission of offence and claim to be tried.

5. In order to prove the guilt of accused, the prosecution has examined

PW.1 to PW.6 and got mark ExP.1 to P.7. PW.1 is defacto complaint, PW.2 & 3 is witness to the facts of occurrence, PW.4 is Panch witness, PW.5 conducted

TIP proceedings, PW.6 is investigating officer.

6. After completing prosecution evidence, the accused was examined under Sec.313 of Cr.p.c., in respect of incriminating evidence available in the prosecution witnesses. The substance of incriminating evidence was read over and explained to the accused in Telugu to which the accused pleaded ignorance and reported no defence evidence on their side.

7. Heard arguments of both sides. Perused the material available on record both oral and documentary evidence.

8. Now the point for determination is:

i) “Whether the accused committed house breaking in Goddess Maremma Temple or not?”

ii) “Whether the stolen property seized from the possession of A1 &

A2?”

iii) “Whether the prosecution has proved guilty of the accused

beyond all reasonable doubts for the sec.457, 380 or 411 of IPC?”

9. To prove the case, the prosecution has examined PW.1 to 6 and got marked Ex.P.1 to P.7. The defacto of the complaint is examined as PW.1.

10. The learned defence counsel argued that the FIR registered on the unknown persons. PW.1 to 3 are not eye witnesses to the incident and he argued that PW.2 & 3 had no personal knowledge about the incident and also they had no personal knowledge about the fact that who committed the theft in the temple. He submitted that in Ex.P.4 the name of A.2 was inserted subsequently and the accused is no way connected with this offence. He also argued that PW.5 who conducted test identification period did not scribed Ex.P.5. he also argued that as per the evidence of PW.5 the TIP conducted in the presence of three constables and the same is not a valid procedure. He submitted that PW.6 who is investigation officer in this case did not seize any property from the possession of accused and also did not prepare any panchanama and argued that the accused in this case falsely implicated and there are no way connected with this offence and there are no cases pending against the accused.

11. On perusal of record it is observed that FIR was registered on unknown persons. Hence it is observed that PW.1,2,3 did not witness the commission of offence by the accused. This case is based on testimony of

PW.4 in whose person the stolen property was seized from the possession of accused. PW.4 stated that he accompanied PW.6 to Kosigi Railway Station, where two persons found in suspicious circumstances and on seeing the police they tried to skulk away. On police enquiry, in his presence they revealed their names and address as A.1 & A.2. He also stated that A.1 &

A.2 were separately interrogated by PW.6. Then they confess the commission of theft of silver face of Goddess Maremma. He also stated that

PW.6 found a cloth bag in the possession of A.1 and on search of the same he found silver face of Goddess Maremma.

12. As per testimony of PW.4, PW.6 seized the stolen property and arrested A.1 & A.2 under cover of panchanama. But in contrary PW.6 stated that one head constable by name Ranga Swamy arrested the accused and seized silver face of Goddess Maremma. In cross examination PW.6 admitted that he did not seize any property from the possession of accused and he stated that he did not prepare any panchanama. Hence the testimony of

PW.4 is not trust worthy, since there inconsistency and convicting the accused. Basing on his statement would not safe.

13. On perusal of record, it is noticed that the head constable by name

Ranga Swamy who allegedly arrested the accused and seized the stolen property from the possession of accused was not cited as witness. PW.6 further stated that he does not know who scribed ExP.5

14. With regard to validity of confess statement made by the accused in the presence of police, the learned defence counsel cited a case which is delivered by Honourable Apex. court in (Jaffer Hussain, Dasta Giri Vs

State of Maharastra.) 1970 AIR 1934 Where in it is held that under

Sec.25 Indian Evidence Act no confession made by an accused before the police officer can be admitted in evidence against him. An exception to this, however provided by Sec.26 of Indian Evidence Act which makes a confessional statement made before a magistrate admissible any evidence against the accused notwithstanding the fact that he was in custody of the police when he made the incriminating statement. Sec. 27 is a proviso,

Sec.26 and makes admissible so much of this statement of accused which leads to discovery of fact deposed to by the accused and connected with crime, irrespective of question whether it is confessional or otherwise. The essential ingredient of Sec.27 is that the information given by the accused must lead to the discovery of the fact which is the direct outcome of such information. Secondly, only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused. Thirdly, the discovery of the fact must relate to the commission of same offence in the present case.

15. As per testimony of PW.4, PW.6 found a cloth bag with A.1 and searched the bag and found silver face of Goddess Maremma in it. There was no discovery of any fact deposed by the accused in this case. Hence, the confession before the police and PW.4 would not come within the purview of Sec.27 of Indian Evidence Act.

16. When coming to the cross examination of PW.4, the defence counsel brought to the notice of the court that PW.4 had written the names of accused in this case, the date of apprehension and nature of the property.

Otherwise recovered in this case were noted on the palm of PW.4. Basing on above observation this court got serious doubt on the testimony of PW.4 and hence it is not safe to rely on the testimony of PW.4 which is not trust worthy.

17. When coming the evidence of PW.5 who conducted test identification parade, stated that he conducted TIP of stolen property with the help of similar silver faces, where in which PW.1 identified the stolen property. PW.5 stated that he prepared panchanama (Ex.P.5) and put his signature. But PW.5 in his cross examination stated that there were three constables present at the time of conducting TIP. The counsel for the accused argued that the TIP conducted in the presence of police is not valid. It is very essential that the process of tip be carried out under the process exclusive direction and supervision of the person themselves and police should completely obliterate themselves from the parade before the statement made by the identifier. Even though TIP conducted properly, it is not a substantive piece of evidence, it is only corroborative evidence.

18. The present case is mainly basing on investigation of PW.6 and testimony of PW.4. But the testimony of both PW.4 & PW.6 is quite contrary with each other and there is no consistency is found in their evidence. They came to the court with different version. There inconsistent statements create serious doubts in the mind of the court about the truthfulness of the witness and their testimony. In the above circumstances, the accused entitled benefits a doubt. In the above circumstances the prosecution has utterly failed to establish the guilt of accused beyond all reasonable doubts.

19. In view of above discussion, this court is of the view that the prosecution has failed to prove the guilt of the accused for the offences under Sec.457,380 IPC or 411 IPC beyond all reasonable doubts and hence the accused is entitled to acquittal.

20.IN THE RESULT, the accused No.2 is not found guilty for the offence punishable under Sec.457,380 IPC or 411 IPC., Accordingly, the accused is acquitted under Sec.248(1) of Cr.P.C. for the said offence. The bail bonds of the accused shall be in force till six months as per Sec.437.A of Cr.P.C. Since no property is kept with the court, no orders was passed.

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

court on 27th day of April 2018.

Sd/- M.Madhavi

II Addl. Judicial Magistrate of I class

ADONI

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE

PW.1: B.Akash ReddyNil PW.2: S. Hanumanthappa PW.3: Boya Era Reddy PW.4: T. Mahadeva PW.5: D. Veeranna PW.6: A. Venugopal

EXHIBITS MARKED

FOR PROSECUTION: EX.P1:Report of PW.1 EX.P2:Stamp Receipt Ex.P3:Signature of Pw.4 in the arrest panchanama Ex.P4:Signature of Pw.5 in the Identification Panchanama Ex.P5:FIR EX.P6:Rough sketch

FOR DEFENCE:- - Nil –

METERIAL OBJECT MARKED

FOR PROSECUTION: For Defence:

-Nil - - Nil -

Sd/- M.Madhavi

II Addl. Judicial Magistrate of I class

ADONI

// True Copy //

1

CALENDER AND JUDGMENT

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

C.C.No. 353/2016

1Date of Offence11-06-2015 2Date of Complaint12-06-2015 3Date of apprehension of the accused 22-06-2016 4Date of release on bail 30-06-2016 5Date of Commencement of Trial27-08-2019 6Date of Close of Trial05-02-2020 7Date of Judgment04-06-2020

Calendar and Judgment in C.C.No.353/2016

On the file of II Additional Judicial Magistrate of I Class, Adoni.

ComplainantSub Inspector of Police, Kosigi P.S. in Cr.No.58/2015 of Kosigi Police Station.

AccusedKaluva Venkateswarlu, S/o Kaluva Hanumanthappa, aged 32 years, Vandagallu village, Kosigi Mandal, Kurnool District.

Section of LawU/ Sec.379 or 411 of IPC

FindingAccused is found not guilty

Sentence of In the result, the accused is found not guilty for the Order offence punishable under Sec.379 or 411 of IPC and accordingly he is acquitted from the above offence under

Sec.248 (1) of Cr.P.C. The bail bonds of the accused shall be in force for six months from today in view of sec.437-A of

Cr.P.C. // True Copy //

II ADDL. JUDICIAL MAGISTRATE OF I-CLASS

ADONI

Sd/- M.Madhavi

II ADDITIONAL JUDICIAL MAGISTRATE

OF I CLASS, ADONI.

Copy submitted to: The Hon’ble Chief-Judicial Magistrate-Cum-

Principal Assistant Sessions Judge, Kurnool.

2

IN THE COURT OF II ADDL. JUDICIAL MAGISTRATE OF I CLASS: ADONI

Present: Smt. M.Madhavi, II Additional Judicial Magistrate of I Class, Adoni

Thursday, the 4th day of June, 2020

CALENDER CASE No.353/2016

Between : State: Rep. By the Sub-Inspector of Police,

Kosigi Police station. …...... Complainant

Vs.

Kaluva Venkateswarlu, aged 32 years, S/o Kaluva Hanumanthappa, Vandagallu

village, Kosigi Mandal, Kurnool District. …....... Accused

This case is coming on 04-06-2020 for final hearing before me in the presence of the Assistant Public Prosecutor for the complainant and Sri J.Venkatesulu, Advocates for the accused and having stood over for consideration till this day, this court delivered the following:

JUDGMENT

1.The Sub-Inspector of police, Kosigi Police Station has filed a charge sheet against the accused for the offences under Sec.379 or 411 of

Indian Penal Code (In short IPC) in Cr.No.58 of 2015 of Kosigi Police Station.

2. The case of the prosecution in brief is as under:

The defacto complainant/P.W.1 is resident of Kosigi village and Mandal.

It is alleged that on 11-06-2015 in between 10-30 hrs to 16-30 hrs he parked his motor cycle (Bajaj Discovery) under Neem tree which is situated beside the house of PW.2/Boya Pakkirappa. Some unknown offenders had committed theft of his motor cycle. On report of P.W.1 on 12-06-2015 at 18-00 hrs P.W.7 registered a case in Cr.No.58 of 2015 under Sec.379 of IPC and investigated the case.

3.During the course of investigation, he examined P.W.1, P.W.2 and

L.W.3 to L.W.5 and recorded their statements. He examined the scene of offence and prepared rough sketch relating to scene of offence. During the course of investigation PW.6 deputed search parties towards Kowthalam, 3

Peddathumbalam, Peddakadubur, Adoni, Kurnool, Gospadu, Siruvella,

Allagadda, Banaganapalli, Koilakuntla and other places enquired about the probable offenders and the stolen motor cycle but got no clues. But on 22-06-2016 at 10.50 hrs, P.W.6 arrested the accused at Vandagallu village outskirts, Kosigi Mandal. During interrogation the accused voluntarily stated his name and details and also confessed his offence that he was committing theft since one and half year and also confessed that he committed theft of motor cycle which was kept at Kosigi Railway station premises. He confessed that after removing the parts of the motor cycle, he sold away them for his lavish expenses. He further stated that he was hiding the theft vehicles at

Vandagallu village in thorney bushes where the public were not moving by covering the grass on the motor cycle. The accused shown 12 motor cycle which was hide at Vandagallu village out skirts. P.W.6 seized the 12 motor cycles in the presence of panchayathdars under cover of panchanama and brought them to the police station. He arrested the accused and sent him to remand. After completion of entire investigation, P.W.6 filed charge sheet against the accused.

4.This case was taken on file for the offences punishable under

Sec.379 or 411 of IPC against the accused. On appearance of the accused

before this court, the copies of documents were furnished to the accused as

contemplated under sec.207 of Cr.P.C.

5.The accused was examined under Sec. 239 of Cr.P.C. Charges are framed for the offence punishable under section 379 or 411 of IPC. Charges were read over and explained to the accused to which the accused denied the commission of the offence and claimed to be tried.

6.In order to prove the guilt of the accused, the prosecution examined P.W.1 to P.W.7 and got marked Ex.P.1 to Ex.P.3.

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7.After completing the prosecution evidence, the accused was examined under Sec.313 of Cr.P.C., in respect of the incriminating evidence available in the prosecution witnesses. The substance of the incriminating evidence was read over and explained to the accused in Telugu, to which the accused pleaded ignorance and reported no defence evidence on his side.

8.Heard arguments. Perused the material available on record both oral and documentary evidence.

09. Now the point for determination is:

“Whether the prosecution has proved the guilt of the accused

for the offence under Sec.379 or 411 of IPC against the accused

beyond all reasonable doubt?”

10.In order to prove the guilt of the accused, the prosecution examined P.W.1 to P.W.7 and got marked Ex.P.1 to Ex.P.3.

11.P.W.1 who is defacto complainant in this case has deposed that he own Bajaj Discovery Motor Cycle bearing No.AP21 AR 3321. On 13-06-2015 at about 11-00 AM, he parked his vehicle near Kosigi Railway

Station. Later, he return to the Railway station at 4.30 PM and found that his vehicle was missing. He searched for his vehicle in surrounding areas but in vain. On the next day, he went to the police station and lodged report but his vehicle was not traced out.

12.P.W.2 deposed that on 11-06-2015 at about 11-00 AM, P.W.1 parked his Bajaj Discovery vehicle near his shop. Again, P.W.1 came for his motor cycle at 4-30 PM, and he did not find his vehicle. He enquired him about the vehicle and also searched for the vehicle in surrounding areas and later lodged report in the police station.

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13.P.W.3 deposed that at about 4 years back in the year 2015, the

S.I. of Kosigi Police station by name Imthiyaz Basha made phone call to him to get the lorry to Vandagallu village. He brought 9 bikes in his lorry from

Vandagallu to Kosigi as per the directions of PW.6.

14.P.W.4 and P.W.5 who are panchayathdar has deposed that 22-06-2016 at about 7-30 PM, the S.I of Kosigi Police station called them to the police station. They went to police station. Later, they along with police constables went to the field of Pinjari which is situated in Vandagallu village.

On seeing the police, one person was trying to skulk away. The police caught hold that person. When, the S.I of Kosigi police station interrogated him. He revealed that he was thefting the motor cycle and kept the same at the field of Pinjari in Vandagallu village. He deposed that the accused has shown the bikes which are kept in hayrick Yard in the field of Pinjari. The police have verified all the motor cycles and noted down the bearing numbers and affixed slips on the motor bikes. The police arrested the accused and seized 12 motor bikes on the cover of panchanama and obtained their signatures.

15.P.W.6 and P.W.7 who are the investigating officers have supported the prosecution case.

16.It is the case of the prosecution that the accused has committed theft of Bajaj Discovery motor cycle which was parked near Railway station of

Kosigi. P.W.1 gave complaint on unknown offender. This court has framed charges for the Sec.379 or Sec. 411 of IPC against the accused. P.W.1 is the defacto complainant, P.W.2 is the local person near scene of offence who came to know about the theft of motor cycle, P.W.3 is driver of Lorry who brought 12 thefted bikes, P.W.4 and P.W.5 are the panchayathdars of Seizure panchanama, P.W.6 and P.W.7 are the Investigation Officers.

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17.Admittedly, the bike which is subject matter of complaint was not recovered from the accused. The investigation officer did not recovered the same from the accused. P.W.1 and P.W.2 are not eye witnesses to the incident and they did not witness the accused. The only evidence before court to connect the accused for the present offence is confession statement of accused before the police in the presence of panchayathdars. P.W.4 and

P.W.5 are the pachayathdars to the arrest and seizure panchanama. But they did not depose anything about the extra judicial confession which was made by the accused. They did not make any whisper about the extra judicial confession in respect of theft of subject matter of present case. PW.5 who is one of the panchayathadar to the panchanama has resiled from his earlier statement, during his cross examination and deposed that when he was called by the police, he was in Vandagallu village. Later, he went to the police station. He deposed that he does not know the contents of panchanama and the accused never produced vehicles in his presence.

Further, he admitted that he signed over panchanama in the police station.

He was not cross examined by the prosecution. It is observed that P.W.4 is stock witness to police. He himself admitted that he acted as panchayatdar in many cases in Kosigi police station. P.W.4 deposed that the S.I. of Kosigi

PS/P.W.6 drafted panchanama at the scene of offence. But, P.W.6 stated that one constable drafted panchanama to his dictation. It is observed that there are discrepancies found in the evidence of P.W.4 and P.W.6, which are minor.

18.It is observed that there is no iota of evidence placed before the court to connect the accused for the present offence in the hand. The 12 bikes which were alleged to be seized by the accused are not subject matter of the present case in the hand. P.W.6 who is Investigation Officer has deposed that the accused confessed that he separated the parts of the bike and sold away the same and used the amount. But there is no evidence place before the court to believe his testimony. It is settled law that any 7 confession before the police is not relevant in the eye of law. There is no iota of evidence placed before the court to conclude that the accused had committed the theft of motor bike which is subject matter of present case in the hand. It is the burden lies on the prosecution to prove the guilt of the accused beyond all reasonable doubts. But, the prosecution has utterly failed to prove the offence against the accused. Hence, the accused is entitled for acquittal.

19.In view of above discussion, this court holds that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubts and the accused are entitled for acquittal.

20.In the result, the accused is found not guilty for the offence punishable under Sec.379 or 411 of IPC and accordingly he is acquitted from the above offence under Sec.248 (1) of Cr.P.C. The bail bonds of the accused shall be in force for six months from today in view of sec.437-A of Cr.P.C.

Typed to my dictation, corrected and pronounced by me in the open court, this the 4th day of June, 2020.

Sd/- M.Madhavi

II ADDITIONAL JUDICIAL MAGISTRATE

OF I CLASS, ADONI.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTIONFOR DEFENCE

P.W.1: GaneshNone

P.W.2: Mulinti Pakkiraiah

P.W.3: Shaik Irfan

P.W.4: H.Yesu Das

P.W.5: Talari Thimmappa

P.W.6: G.Imthiyaz Basha

P.W.7: G.Krishna Murthy

EXHIBITS MARKED

FOR PROSECUTIONFOR DEFENCE

8

Ex.P.1: ComplaintNil

Ex.P.2: Arrest and Seizure panchanama

Ex.P.3: F.I.R.

METERIAL OBJECT MARKED

FOR PROSECUTIONFOR DEFENCE

NIL NIL

// True Copy //

II ADDL. JUDICIAL MAGISTRATE OF I-CLASS

ADONI

Sd/- M.Madhavi

II ADDITIONAL JUDICIAL MAGISTRATE

OF I CLASS, ADONI.