Smt.N.Usha Lakshmi Kumari

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IN THE COURT OF THE ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS-

CUM-ADDL. JUNIOR CIVIL JUDGE: RAMACHANDRAPURAM

Present : Smt. N. Usha Lakshmi Kumari,

Additional Judicial Magistrate of First Class-Cum-Addl. Junior Civil Judge,

Ramachandrapuram

Thursday, the 19th day of March, 2020.

C.C.No. 561/2018

Between: Medisetti Kondala Rao, S/o Suribabu, 32 years,

D.No.2-30, Pulagurtha of Anaparthi (M), E.G.Dt. ..Complainant

And

Surya Kumari Reddy, W/o Siva Satyam, 40 years, D.No.3-42, Sai Vinayaka Nagar, Vakalapudi,

Kakinada-5, E.G.Dt. ..Accused.

This case is coming on 16.03.2020 for final hearing before me in the presence of Sri P.M.M.V. Ramana, Advocate for complainant and of Sri M. Srinivasa Rao, Sri J.S.S.Chakravarthi and Sri Ch. Srinivasa Rao, Advocates for the accused and the matter having stood over till this day for consideration, this Court delivered the following: -

J U D G M E N T

1.This is a complaint filed by the complainant alleging offence under Sec.138 of Negotiable Instrument Act against the accused.

2.The brief averments of the complaint filed by the complainant are that accused borrowed an amount of Rs.3,50,000/- from complainant on 20.12.2015 for the purpose of family expenses and to discharge sundry debts and agreed to repay the same with interest @ 24% p.a. On repeated demands made by the complainant, accused issued a cheque bearing No.714581,

dt:03.05.2017 drawn on State Bank of India, Vakalapudi Branch, Kakinada in

favour of the complainant for a sum of Rs.3,00,000/- towards part satisfaction of the said pronote debt. Complainant presented the said cheque for collection in his banker i.e., Indusind Bank, Ramachandrapuram Branch on 12.05.2017 and the said cheque was returned unpaid for the reasons “ACCOUNT CLOSED” along with a memo. Complainant got issued a registered legal notice, dt:01.06.2017 to accused and the same was received by him on 05.06.2017. But accused neither issued any reply nor paid the amount. Hence accused is liable to punishable U/Sec.138 of N.I. Act. Hence, the complaint.

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3.The case was taken on file against the accused under Sec.138 of

Negotiable Instrument Act and summons were issued to the accused. Accused made his appearance before the Court. The copies of documents which are relied on by the complainant are furnished to the accused as required under

Sec. 207 of Cr.P.C.

4.Accused was examined under Sec.251 Cr.P.C. explaining him the substance of accusation against him for the offence under Sec.138 of

Negotiable Instrument Act, for which, accused denied the offence and claimed to be tried.

5.During the course of trial, complainant himself examined as P.W.1 and Exs.P.1 to P.6 are marked so also Scribe of Ex.P6 is examined as P.W.2.

After closure of complainant’s side evidence, accused was examined under

Sec.313 Cr.P.C., explaining him, the incriminating material available in the evidence of P.Ws.1 and 2 and so also in the documents relied on by the complainant for which accused denied the complainant side evidence as false and reported no defence evidence. Ex.D1 is marked through P.W.1.

6.The learned counsel for the accused filed memo of citations. Both the counsels filed memorandum of arguments. Heard both sides and perused the material available on record.

7.Now the points that arise for determination in this case are:

1) Whether the complainant has complied all the manda- tory requirements as contemplated under Sec.138 of N.I. Act?

2) Whether the accused is liable to pay a sum of Rs.3,50,000/- to the complainant due under the promis- sory note, dt:20.12.2015? If so, whether the accused had issued impugned cheque to the complainant to-

wards discharge of legally enforceable debt?

3) Whether the complainant is successful in bringing home the guilt of the accused for the offence under Sec.138 of N.I. Act beyond all reasonable doubt?

8.POINT No.1:-In order to establish the guilt of accused, the complainant himself got examined as P.W.1, exhibited Exs.P1 to P6 and also examined Scribe of Ex.P-6 as P.W.2 to corroborate his testimony. Complainant 3 is relying on the oral and documentary evidence adduced by him and this court has to evaluate the evidence on the record.

9.i)Sec.138 N.I. Act says that where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for discharge, in whole or in part, of any debt or other liability is returned by the bank unpaid, either because of the “amount of the money standing to the credit of that account is in sufficient to honour the cheque” or that “it exceeds the amount arranged to paid from that account” by an agreement made with the bank such person shall be deemed to have committed an offence and the complaint would lie against such person subject to satisfying the conditions specified in (a), (b) and (c) of Proviso of Sec.138 of N.I. Act.

ii)118. Presumptions as to negotiable instruments:- Until the contrary is proved, the following presumptions shall be made-

(a) that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration:

(b) as to date; that every negotiable instrument bearing a date was made or drawn on such date;

(c) as to time of acceptance; that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;

(d) as to time of transfer; that every transfer of a negotiable instrument was made before its maturity;

(e) as to order of endorsements; that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;

(f) as to stamps; that a lost promissory note, bill of exchange or cheque was duly stamped;

(g) that holder is a holder in due course; that the holder of a negotiable instrument is a holder in due course; provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody 4 thereof, by means of an offence or fraud, or has been obtained from the maker or accept or thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.

12.The cause of action arose for filing of the compliant from the expiry of 15th day and the complaint has filed within 30 days from the cause of action. The legal notice got issued by the Complainant is received by the accused on 05.06.2017 vide Ex.P4 and the complainant has to wait for a period of 15 days giving an opportunity for the drawer to repay the cheque amount. So, the complainant has to wait till 20.06.2017 and the cause of action for the complainant will arise on 21.06.2017. In the instance case the complaint was filed on 27.06.2017 which is within the period of 30 days.

Hence, it can be held without any hesitation that the complainant fulfilled all the mandatory requirements as envisaged under Sec.138 of Negotiable

Instruments Act. Therefore, this point is answered in favour of the complainant and against accused.

13.POINT No. 2:-Now, this court has to see Whether the accused is

liable to pay a sum of Rs.3,50,000/- to the complainant due under the

promissory note, dt:20.12.2015? If so, whether the accused had

issued impugned cheque to the complainant towards discharge of

legally enforceable debt?

i)P.W.1 filed his chief examination affidavit by reiterating the same averments of the complaint who deposed in toto about borrowing of amount, execution of Ex.P6 in his favour, issuance of Ex.P1 cheque, presentation of cheque vide Ex.P2, dishonoured of cheque vide Ex.P3, issuance of legal notice vide Ex.P4 and acknowledgment of Ex.P4 vide Ex.P5.

In his cross examination, P.W.1 admitted that he did not mention in his chief affidavit, complaint about the mode of the acquaintance of the accused.

On the request of one Kandavilli Satyanarayana, he lent the amount to the ac- cused. He can file documentary proof to show that he is doing cultivation. He deposed that he is earning Rs.3 lakhs p.a., on cultivation and he do not main- 5 tain books of accounts. He denied that as accused is not indebted to him, he did not show the amounts in his income Tax returns. He is not acquainted with attestors and scribe. P.W.1 categorically admitted that Promissory note/Ex.P6 is barred by limitation. On 20.12.2015 he took some amount from his friend and lent the same to the accused. He is having Rs.1,80,000/- on his hand and the remaining amount were taken from 2 to 3 friends. He further admitted that he cannot say the names of his friends from whom he took the amounts. In his further cross, he admitted that accused subscribed one signa- ture on the cheque. He further admitted that there are two signatures on the cheque. He denied that accused issued the cheque to one Shanmitha Naga- mani of Vakalapudi in a private chit in the year 2015 and the said person left away from Vakalpudi and that said Nagamani and himself colluded and issued legal notice to the accused. Further denied that himself and Nagamani colluded and fabricated the Promissory note and filed before this court.

ii)P.W.2/Khandavilli Veera Venkata Satyanarayana Murthy, Scribe of Ex.P6 filed chief affidavit and deposed in the same lines of P.W.1 and corroborated the evidence of P.W.1 in toto.

In his cross examination, P.W.2 admitted that he is acquainted with

P.W.1 since 2006. He deposed that he is working in Chit Fund Business, Kaki- nada under the name and style of Siddharadha Chits till today and he did not mention the same in his chief affidavit. He admitted that he came along with

P.W.1, 4 or 5 times and he also came to the court on the date of evidence of

P.W.1. he never acted as a witness in the financial transactions between P.W.1 and others previously and he never scribed Promissory notes except the present transaction. He denied that himself colluded with both the attestors and P.W.1, created the Promissory note and filed before this court.

14.The learned counsel for the accused relied on the following cita- tions:

a)In 2014 (1) CRIMINAL COURT CASES058 (S.C.) between John K.

braham Vs. Simon C. Abraham & Anr., it was held that Complainant not sure as to who wrote the cheque”.

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b)In 2019 (2) ALT (Crl.) 264 (T.S. & A.P.) between V. Naga Vinay

Vs. Ch. Sambasiva Rao and another – By the date of debt of Exs.P3 and P4 promissory notes, the complainant though was a money lender but not having a valid money lending license.”

c)In 2019 (2) ALD (Crl.) 27 (SC) between Anss Rajashekar Vs. Au- gustus Jeba Ananth it was held that –Presumption U/Sec.139 stood rebutted and defence stood probablized.

d)In 2019 (2) ALD (Crl.) 732 (SC) it was held that Trial Court’s finding that complainant failed to prove his financial capacity of lending money and in- terference by High Court on said ground, not proper.

e)In 2020(1) CRIMINAL COURT CASES 464 (P & H) between Pawan

Kumar Vs. Sunil Kumar held that Although complainant, the alleged victim is paying income tax, however, record thereof has not been produced.”

Above decisions are rightly applicable to the present facts and circum- stances of this case.

15.Though the accused is not required to step into witness box to prove her case, but she can rely upon the material elicited during course of cross examination of complainant and his witnesses. The accused can disprove the case by mere preponderance of probabilities by raising a probable defence.

a)In this case, it is the specific contention of the accused that the complainant has no such capacity to lend such a huge amount.

In his cross examination, P.W.1 admitted that he is earning Rs.3 lakhs p.a., on cultivation. About Rs.50,000/- expenditure is spent for education for his children per year. His wife and children are dependent on him and his wife is house wife. P.W.1 deposed that he can file the documentary proof to show that he is doing cultivation. But there is no documentary proof to show that he is doing cultivation. So, after deducting his children educational expenses, he is having only Rs.2,50,000/- per year. But in this case, he deposed that he lent amount of Rs.3,50,000/- to the accused. To prove his version, P.W.1 deposed that as on the date of transaction, he is having Rs.1,80,000/- on hand and the remaining amount borrowed from his friends. But he failed to 7 examine the said friends and he also failed to say the names of his friends from whom he took the amounts. Furthermore, even though P.W.1 is an income tax assessee, he did not show the alleged amount of Rs.3,50,000/- in his Income Tax Returns. Again he denied that the amounts lend to the accused is not shown in his Income Tax Returns.

The learned counsel for the accused cited a decision reported in 2015 (1) CIVIL COURT CASES 001 (S.C.) in between K. Subramani Vs. K.

Damodara Naidu wherein it was held that – “Financial capacity to advance loan, complainant failed to prove his financial capacity to advance loan and that there is legally enforceable debt payable by accused to him”.

Above decision is rightly applicable to the present facts of the case as the Complainant failed to prove his financial capacity to lend the such a huge amount to the accused. Furthermore, the evidence of P.W.1 is not cogent and not consistent and it found some developments.

b)P.W.1 in his cross examination categorically admitted that both the attestors and scribe were brought by the accused and he is not acquainted with attestors and scribe. P.W.1 further admitted that he has no acquaintance with the attestors and scribe prior to or subsequent to pronote transaction.

Contra to that P.W.2 who is scribe of Ex.P6/ Promissory note in his cross examination categorically admitted that he is acquainted with P.W.1 since 2006.

So, there is no corroboration and no consistency in the evidence of

P.Ws.1 and 2 with regard to acquaintance with each other.

c)P.W.1 in his cross examination admitted that as on the date of transaction, accused is indebted. He did not obtain any security from her.

Without taking any security and without knowing any details of the accused, no prudent man can give such a huge amount.

d)P.W.1 further admitted that he did not file civil suit as the accused promised that she will repay the amount. He further admitted that Ex.P6/

Promissory note is barred by limitation.

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e)P.W.1 in his cross admitted that accused gave typed cheque but he do not know where she got typed and where she subscribed her signature on the cheque. In his further cross P.W.1 admitted that accused subscribed one signature on the Cheque. Again admitted that there are two signatures on the cheque.

So, there is no hesitation to say that P.W.1 is not having any knowledge about the Ex.P1/Cheque.

f)P.W.1 in his cross examination deposed that by the date of issuance of cheque, he is in need of money. The alleged cheque was issued on 05.03.2017 by the accused but P.W.1 presented the said cheque on 12.05.2017.

If really P.W.1 is in need of money as on the date of issuance of Ex.P1, he should have filed the same immediately but he filed Ex.P1/Cheque before the bank after more than 2 months. So, the version of P.W.1 is not believable and not trustworthy.

g)P.W.1 in his cross examination admitted that on confrontation of Xerox copy of Promissory note executed by Peketi Satya Pattabhiramayya was filed by me. He further admitted that the attestors in Ex.D1 and the above Xerox copy of Promissory note are one and the same.

P.W.1 in his cross examination categorically admitted that both the attestors and scribe were brought by the accused and he is not acquainted with attestors and scribe. P.W.1 further admitted that he has no acquaintance with the attestors and scribe prior to or subsequent to pronote transaction.

Above piece of evidence is enough to say that the version of P.W.1 is not consistent and it has been changing from Para to Para. Hence, the evidence of

P.W.1 is not cogent and not consistent and it is having some developments.

h)P.W.2 in his chief cause title he admitted that he is doing seeds business. But in his cross examination he deposed that he is working in Chit

Funds Business at Kakinada under the name and style of Siddhardha Chits till today and he did not mention the same in his chief affidavit.

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So, the version of P.W.2 also not cogent and not consistent and is changing from time to time with regard to his avocation.

i)P.W.2/K.V.V. Satyanarayana Murthy in his cross examination admitted that he never acted as a witness in the financial transactions between P.W.1 and others previously and he never scribed Promissory notes except the present transaction i.e., Ex.P6. As seen from Ex.D1, dt.27.12.2015 it was scribed by P.W.2/K.V.V. Satyanarayana Murthy.

So, the version of P.W.2 is not believable and not trustworthy cannot be ruled out as argued by the learned counsel for the accused.

j)P.W.1 himself in his cross examination admitted that he filed cases along with cheque bounce cases and civil cases on the file of Courts of

Ramachandrapuram. Further admitted that he filed Creditor I.P., against one

Peketi Satya Pattabhiramayya, Peketi Subbalakshmi and Garaga Somanna pleading that these three persons were indebted to him. Further admitted that he is not holding license to carry on the Finance business.

k)P.W.1 further admitted that he is not maintaining the books of accounts and amount lent to the persons is unaccounted money and he did not disclose in his Income Tax returns.

In 2017 (2) ALD (Crl.) 471 in between R. Chennakesava Rao

V. P. Laxmi Narasaiah and another where in it was held that – “Complainant lent money to accused as moneylender at 24% p.a., but without obtaining any document. Admittedly, Complainant did not possess license under A.P. (T.A.) Money Lenders Act and also as he did not disclose this amount in his income tax returns, amount lent was unaccounted money. Amount allegedly lent by Complainant to accused thus not being legally recoverable, cheques cannot be said to have been issued towards legally enforceable debt invoking presumption under Sec.139 of N.I. Act. Complainant thus, failed to establish that cheque in question were issued towards discharge of legally 10 enforceable debt. Acquittal of accused by trial court dismissing complaint, proper and the appeal dismissed.” “Further held that when the cheques were not issued towards discharge of legally enforceable debt, it is for the accused to rebut the presumption under Section 139 of N.I. Act and when the Complainant admitted that the amount was not disclosed in the income tax returns, it would be unaccounted money and thereby it is not legally recoverable. In the same situated came up before the Bombay High

Court in 2010 (1) ALD (Crl.) (NOC) 3 (Bom), wherein it was concluded that when there is categorical admission on part of

Complainant that amount advanced was “UNACCOUNTED” amount, not disclosed in Income Tax Returns, it cannot be said that liability to repay unaccounted cash amount is a legally enforceable liability within the meaning of the explanation to Section 138 of N.I. Act, as such the debt is not recoverable. Therefore, persuaded the above said judgment, the amount allegedly lent to the accused by the Complainant is unaccounted and not shown in the income tax returns for the relevant year, hence, it is sufficient to hold that the accused was able to rebut the presumption under Section 139 of N.I. Act by eliciting true facts in the cross examination of P.W.1. When the amount is not legally recoverable, it is difficult to hold that the cheques were issued towards legally enforceable debt invoking presumption under Section 139 of

Negotiable Instruments Act.

Above decisions are rightly applicable to the present facts and circumstances of the cases. On considering the admissions made by

P.W.1 i.e., he filed cases along with cheque bounce cases and civil cases on the file of Courts o Ramachandrapuram. He also admitted that he filed Cr.I.P., against one Peketi Satya Pattabhiramayya, Peketi

Subbalakshmi and Garaga Somanna and he do not possesses any license for contracting the rate of interest on the promissory notes. He 11 has no license to do finance business and he is not maintaining any books of accounts for finance business. He has not paid any income tax to the above said transactions. Further admitted that the money he lent, is unaccountable.

15.The learned counsel for the accused relied on 2019(1) ALD (Crl.) 927 (TS) in between Eye Ads Pvt., Ltd., Hyderabad Vs.

Lydian Herbal Products, Hyderabad and others it was held that – “When essential ingredients of Section 138 of N.I. Act are not being established as indicated, the appeal merits no consideration to allow as prayed for”.

In another decision 2007 (1) ALT (Crl.) 103 (SC) in M.S.

Narayana Menon @ Mani Vs. State of Kerala and another – The impugned judgment cannot be sustained which is set aside accordingly.

To attract the Sec. 138 of N.I. Act the complainant must prove that the accused issued a cheque to discharge of any legally enforceable cheque and when the said cheque was presented to the bank for realization, it was dishonored and the drawer failed to pay the amount due under such dishonoured cheque in spite of demands made by the payee in due course, as the case may be. In the present case, the complainant is able to prove the presentation of cheque to the bank, its dishonored by the bank and is making demand to the accused to pay the same. But the complainant has held in Point

No.1, failed to establish the essential ingredients that there was legally enforceable debt and the accused has issued Ex.P1 cheque in discharge of said debt.

16.For the reasons recorded supra, this court opined that the complainant failed to prove his case that he lent money to accused and accused has issued cheuqe to him towards part payment of pronote debt and therefore, this point is answered against the Complainant and in favour of the accused. Therefore, the accused cannot held guilty of the offence U/Sec.138 12 of N.I. Act. Accordingly, this point is answered against complainant holding that he failed to prove offence U/Sec.138 of N.I. Act against the accused.

17.In the result, accused is found not guilty for the offence Under

Section 138 of Negotiable Instruments Act and accordingly, accused is acquitted for the said offence Under Section 255(1) Cr.P.C., and he is set at liberty. The bail bonds of accused as well as sureties shall stand cancelled after expiry of six months U/Sec.437-A Cr.P.C.

Typed to my dictation by the Grade III Stenographer, corrected and pronounced by me in the Open Court, on this the 19th day of March, 2020.

Sd/- N. USHA LAKSHMI KUMARI

Additional Judicial Magistrate of First Class,

Ramachandrapuram.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR COMPLAINANT:

P.W.1 : Medisetti Kondalarao P.W.2 : Khandavilli Veera Venkata Satyanarayana Murthy

FOR DEFENCE: None

DOCUMENTS MARKED

FOR COMPLAINANT:

Ex.P.1/03.05.2017Dishonoured cheque issued by accused drawn on State Bank of India, Vakalapudi Branch.

Ex.P.2/12.05.2017OriginalCounterfoilofIndusindBank, Ramachandrapuram Branch

Ex.P.3/15.05.2017Cheque return memo issued by Indusind Bank, Ramachandrapuram Branch

Ex.P.4/01.06.2017Office copy of legal notice got issued by Complainant to the accused

Ex.P.5/05.06.2017Postal acknowledgment of the accused

Ex.P.6/20.12.2015Promissory note executed by accused in favour of Complainant

FOR DEFENCE :

Ex.D.1/ ----Certified copy of Promissory note executed by Matcha Veera Venkata Lakshmi

Sd/- N. USHA LAKSHMI KUMARI

Addl. Judicial Magistrate of First Class, Ramachandrapuram.

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ABSTRACT: EAST GODAVARI

CALENDER AND JUDGMENT

CALENDER CASES TRIED BY SMT. N. USHA LAKSHMI KUMARI,

ADDL. JUDICIAL FIRST CLASS MAGISTRATE: RAMACHANDRAPURAM

C.C.No. 561/2018

Date of Offence: 03.05.2017 Complaint: 27.06.2017 1st appearance of the accused: 30.11.2018 Released on bail: –----

Commencement of trial: 25.06.2019 Closure of Trial: 20.02.2020 Sentence or Order: 19.03.2020 Explanation for delay: ----

Name of the complainant:

Medisetti Kondala Rao, S/o Suribabu, 32 years, D.No.2-30, Pulagurtha of Anaparthi (M), E.G.Dt.

Name of accused:

Surya Kumari Reddy, W/o Siva Satyam, 40 years, D.No.3-42, Sai Vinayaka Nagar, Vakalapudi, Kakinada-5, E.G.Dt.

Nature of offence : U/Sec.138 r/w 142 of Negotiable Instruments Act Plea of accused : Not guilty Finding : Found Not Guilty ORDER:- In the result, accused is found not guilty for the offence Under

Section 138 of Negotiable Instruments Act and accordingly, accused is acquitted for the said offence Under Section 255(1) Cr.P.C., and he is set at liberty. The bail bonds of accused as well as sureties shall stand cancelled after expiry of six months U/Sec.437-A Cr.P.C.

Sd/- N. USHA LAKSHMI KUMARI

Addl. Judicial First Class Magistrate, Ramachandrapuram.

Copy submitted to the Hon’ble Chief Judicial Magistrate-cum-Principal Assistant Sessions Judge, East Godavari, Rajamahendravaram;

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IN THE COURT OF THE ADDL. JUDICIAL FIRST CLASS MAGISTRATE-

CUM-ADDL. JUNIOR CIVIL JUDGE: RAMACHANDRAPURAM.

Present: Smt. N. Usha Lakshmi Kumari, Addl. Judicial Magistrate of First Class-Cum-Addl. Junior Civil Judge, Ramachandrapuram

Tuesday, the 17th day of March, 2020.

C.C.No. 278/2018

Between

Madhavarapu Sambasiva Rao, S/o Satyanarayana, 37 years, Hindu, Cultivation & Cable Business, D.No.10-16, Nunnavari Street, Draksharama,

Ramachandrapuram Mandal, E.G.Dt... Complainant.

And

Konde Annapurna, W/o Sarath Chandra @ Sarath 34 years, Curry point business, D.No.1-300, New D.No.102-2-350, Muralikonda,

Bommuru of Rajamahendravaram (R) (M). ... Accused.

This case is coming on this day i.e., 13.03.2020 before me for final hearing in the presence of Sri Kamuju Suryanarayana, Advocate for Complainant and of Sri K.V.V. Sai Ram and Sri J.S.S.S. Chakravarthi and Sri Ch. Srinivasa Rao, Advocates for accused and upon hearing both sides and having stood over for consideration till today, this Court delivered the following:-

J U D G M E N T

1.This is a private complaint filed by the complainant against the accused for the offence punishable under Secs.138 and 142 of

Negotiable Instruments Act, 1881.

2.The facts leading to the presentation of the complaint is that:

Accused and her husband viz., Sarath Chandra jointly borrowed an amount of Rs.1,00,000/- from him on 30.12.2015 for their family expenses and to discharge sundry debts by agreeing to repay the same together with subsequent interest @ 24% p.a. and jointly executed a demand promissory note on the same day in the presence of 2 attestors and scribe at Draksharama (V). In spite of repeated demands made by the complainant, accused towards part satisfaction of the debt due by them under the promissory note, dt:30.12.2015 got issued a cheque bearing No.272568, dt:26.12.2017 drawn on Andhra Bank,

Attapur Branch, Hyderabad for an amount of Rs.80,000/-. Complainant presented the said cheque for collection in his bank i.e., H.D.F.C. Bank

Ltd., Ramachandrapuram Branch on 29.12.2017 and the said cheque was dishonoured on the ground for the reason “ACCOUNT BLOCKED

SITUATION COVERED” and the same in turn intimated to the complainant’s bank through a memo dt.30.12.2017. Thereon, complainant got issued a registered legal notice to the accused on 23.01.2018 demanding him for payment of the cheque amount and accused avoided to receive the said notice and got returned the same on 27.01.2018. But accused did not choose any reply for the registered notice and failed to make the payment. Hence, complainant has presented the complaint to punish the accused for the offence under Sec.138 of Negotiable Instruments Act.

3.This case was taken on file under Sec.138 of Negotiable

Instruments Act against accused.

4.On appearance of accused, he was supplied with the copies of the case documents as required under Sec.207 of Cr.P.C., and examined under 251 Cr.P.C. and substance for the offence under

Sec.138 of Negotiable Instruments Act, read over and explained to accused in Telugu, for which she pleaded not guilty and claimed to be tried.

5.In order to prove the case of the complainant, complainant examined himself as P.W.1 and got marked Exs.P.1 to P7 and also examined 1st attestor of Ex.P7 as P.W.2.

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6.After completion of complainant evidence, accused is examined under Sec.313 Cr.P.C., and the incriminating material in the evidence of P.W.1, P.W.2 and Exs.P1 to P7 is put forth to accused, for which she stated all false. On behalf of the accused, D.W.1/Bank

Manager is examined and Exs.D1 and D2 are marked through D.W.1.

7. Heard the learned counsel for the complainant and the learned counsel for the accused and perused the material available on record.

8.Now the points that arise for determination in this case are:

1) Whether the complainant has complied all the mandatory requirements as contemplated under Sec.138 of N.I. Act?

2) Whether the accused is liable to pay a sum of Rs.1,00,000/- to the complainant due under the

promissory note, dt:30.12.2015?

3) If so, accused had impugned cheque in favour of complainant towards discharge of legally enforce- able debt?

4) Whether the complainant is successful in bringing home the guilt of accused for the offence under Sec.138 of N.I. Act beyond all reasonable doubt?

9.In order to establish the guilt of accused, complainant himself got examined as P.W.1 and also exhibited Exs.P1 to P7 so also examined 1st attestor of Ex.P7 as P.W.2.

10.Now this court has to consider the oral and documentary evidence on the record.

11.POINT No.1:-The cause of action arose for filing of the compliant from the expiry of 15th day and the complaint has filed within 30 days from the cause of action. Complainant got issued a registered legal notice under Ex.P4 and the same is returned by accused on 27.01.2018 under Ex.P6 and he has to wait for a period of 15 days giving an opportunity for the drawer to repay the cheque amount. So, 4 the complainant has to wait till 11.02.2018. In the instance case the complaint was filed on 15.02.2018 which is within the period of 30 days. Hence, it can be held without any hesitation that the complainant fulfilled all the mandatory requirements as envisaged under Sec. 138 of

Negotiable Instruments Act. Accordingly, 1 st point is answered in favour of complainant.

13.POINT Nos.2 to 4:-Now this court has to see whether the

accused is liable to pay a sum of Rs.1,00,000/- due under the

promissory note, dt:30.12.2015? and Whether the accused

issued cheque i.e., Ex.P1 in favour of the complainant towards

discharge of the said debt?

i)It is contended on behalf of the complainant that accused had borrowed a sum of Rs.1,00,000/- from him on 30.12.2015 by executing a promissory note. In order to prove the same, he examined himself as

P.W.1 and exhibited Exs.P1 to P7 and also examined P.W.2.

ii)Complainant filed his chief examination affidavit by reiterating the same averments of the complaint. During cross examination, he deposed that he did not file the case against the husband of the accused as they requested that they would repay the debt amount.

P.W.1 admitted that he lent amount at Bommuru. Again P.W.1

categorically admitted that he mentioned in his complaint and

chief affidavit that he lent the amount at his house at

Draksharama (V). So, the version of P.W.1 is not cogent and consistent with regard to place where he lent amount to the accused.

P.W.1 in his cross examination denied that Ex.P5 sent to the old house number and they did not receive the same and was not refused by the accused. P.W.1 further deposed that he is not interested to send the

Promissory note for Expert opinion for proving the signature of the 5 accused and also not interested to examine any of the bank authorities to prove that Ex.P1 belongs to the accused. He further admitted that

he did not show the amount which was lent to the accused in his

Income Tax Returns.

ii)P.W.2 in his chief examination affidavit corroborated the evidence of P.W.1. In his cross examination he deposed that at the time of borrowing amount except the Promissory note no other security is taken. He do not know whether the cheque issued by the accused or her husband which was dishonoured and the cheque bounce case was filed before the Court or not. He denied that accused and her husband did not borrow any amount from him and did not execute any

Promissory note and did not subscribe their signatures and their thumb impressions and did not borrow any amount from the Complainant and that he is deposing false.

14.On the other hand accused examined the Andhra Bank

Manager as D.W.1 in support of his case. He deposed that he brought the record showing that the account number of the cheque issued by the accused and the account number 129510100042702 belongs to SK.

Sarath Chandra. He admitted that the cheque book leaves from cheque

No.252768 was issued to K. Sarath Chandra. He categorically admitted that the signature on the cheque and the account opening form are completely different. He further admitted that the accused is

no way related to the bank account and cheque book issued to

K. Sarath Chandra. He further admitted that there are strikings on the Ex.P1/Cheque on confrontation in the open court. He admitted

that the cheque will be invalid if there are any striking at the

initial stage at the time of presentation and the said cheque will

not be accepted by the bank. So, there is no hesitation to say that as 6 seen from Ex.P1/Cheque there is striking at the initial stage at the time of presentation and the said cheque will not be acceptable.

He further admitted that Ex.P1/Cheque does not belong to the accused and she is no way connected in this case. Ex.D1 is the original cheque issuance letter and Ex.D2 is the attested copy of savings bank account opening form.

In his cross examination, D.W.1 deposed that Ex.P1/Cheque belongs to the bank account number 702. Again he deposed that the cheque leaves bearing Nos., from 272561 to 272570 were issued to K.

Sarath Chandra. As seen from Ex.P1/Cheuqe it’s bearing Number

is 272568 which was given to Sarath Chandra but not to the

accused. D.W.1 further admitted that if the wife of K. Sarath Chandra who is the accused in this case signs on the cheque issued to K. Sarath

Chandra then it amounts to forgery. He did not receive the copy of cheque for physical verification.

15.In another decision reported in 2003 ALT (Crl.) 218 (SC) in between C. Antony Vs. K.G. Raghavan Nair wherein it was held that – “Complaint filed by respondent against appellant, consequent upon dishonour of cheque issued by accused. Trial court acquitted accused holding that complainant failed to establish his case”.

In another judgment of the Andhra Pradesh High Court in Kalyani

Refineries Ltd. v. Banaras State Bank Ltd., 2000 (1) Crimes 390, it is observed that the conception of civil liability cannot be imported into the question of criminal liability which has to be gathered from the specific statutory provisions in that behalf. According to the very specific requirement mandated in Section 138 of the Act for constituting an offence under it, the cheque should have been drawn by the drawer having legally enforceable liability in favour of the payee with the 7 further requirement that the cheque should have been drawn on an account maintained by the drawer.

Above decisions are rightly applicable to the present facts of the case. As seen from the above piece of evidence and documents, there is no hesitation to say that herein the present case also Complainant failed to establish his case that Ex.P1/Cheque was given by the accused for legally enforceable debt. In the present case the complaint is filed against the wife/accused who is not the drawer having legally enforceable liability in favour of payee and the cheque is not drawn on the account maintained by the drawer i.e., the husband of the accused.

16.On careful perusal of the above entire evidence of the complainant and the defence i.e., P.Ws.1 and 2 and D.W.1 along with

Exs.P.1 to P.7 and Exs.D.1 and D.2, this court is of the opinion that the accused by examining the Bank Manager proved that in this case

Ex.P1/Cheque does not belong to the accused and she is no way connected in this case. Further proved that the signature on the

Ex.P1/cheque and the account opening form are completely different.

The accused through D.W.1 further proved that the accused is no way related to the bank account and the alleged cheque leaf is issued to K.

Sarath Chandra.

a)Furthermore, P.W.1 in his cross examination categorically admitted that he is not interested to send the Promissory note for

Expert opinion and also he is not interested to examine any of the bank authorities to prove that Ex.P1 belongs to the accused.

Above piece of evidence is enough to say that Ex.P1 is not given by the accused person for her legally enforceable debt. If really the accused person put her signature on Ex.P7 what prevented him for non 8 sending of Ex.P7 to the Hand Writing Expert. Complainant ought to have proved that accused executed the said Promissory note/Ex.P7 towards the said debt, accused issued Ex.P1/Cheuqe. But the

Complainant failed to prove the same and hence, accused is not liable to convict the accused person. Furthermore, accused proved that the cheque will be invalid if there are any strikings at the initial stage at the time of presentation and the said cheque will not be accepted by the bank. As seen from Ex.P1/Cheque there is a striking on the account number.

17.So there is no hesitation to say that Complainant miserably failed to prove that to discharge legally enforceable debt, the accused issued Ex.P1/Cheque to him and hence, accused is not liable for conviction. Accordingly, these points are answered in favour of the accused and against the complainant.

18.In the result, accused is found not guilty for the offence punishable U/Sec. 138 of N. I. Act 1881 and accordingly, accused is acquitted U/Sec.255 (1) of Cr.P.C., and she is set at liberty. The bail bonds of accused as well as her sureties shall stand cancelled after expiry of six moths u/Sec.437-A Cr.P.C.

Typed to my dictation by the Grade III Stenographer, corrected and pronounced by me in the Open Court, on this the 17th day of March, 2020.

Sd/- N. USHA LAKSHMI KUMARI

Addl. Judicial Magistrate of First Class, Ramachandrapuram.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Complainant:-

P.W.1: Madhavarapu Sambasiva Rao

P.W.2: Chodi Govindu

For Accused:-

9

D.W.1: B. Venkata Ramana

DOCUMENTS MARKED

For Complainant:-

Ex.P.1 : Original cheque issued by accused, dt.26.12.2017

Ex.P.2 : Original counterfoil in token of presentation of cheque, dt.29.12.2017

Ex.P.3 : Original return memo issued by HDFC Bank Ltd., Ramachandrapuram Branch, dt.30.12.2017

Ex.P.4 : Office copy of legal notice got issued by the Complainant, dt.23.01.2018

Ex.P.5 : Original postal receipt, dt.23.01.2018

Ex.P.6 : Returned cover from the accused, dt.27.01.2018; and

Ex.P.7 : Original Promissory note executed by the accused in favour of Complainant, dt.30.12.2015.

For Accused:-

Ex.D.1 : Cheque issuance letter issued by Andhra Bank

Ex.D.2 : Attested copy of Savings Bank Account Opening Form.

Sd/- N. USHA LAKSHMI KUMARI

Addl. Judicial Magistrate of First Class, Ramachandrapuram.

// True copy //

Addl. J.F.C. Magistrate, Ramachandrapuram.

10

ABSTRACT: EAST GODAVARI

CALENDER AND JUDGMENT

CALENDER CASES TRIED BY SMT. N. USHA LAKSHMI KUMARI,

ADDL. JUDICIAL FIRST CLASS MAGISTRATE: RAMACHANDRAPURAM.

C.C.No.278/2018

Date of Offence: 26.12.2017 Complaint: 15.02.2018 1st appearance of accused: 28.06.2018 Released on bail: ---- Commencement of trial: 26.02.2019 Closure of Trial: 03.03.2020 Sentence or Order: 17.03.2020 Explanation for delay: ---

Name of the complainant:

Madhavarapu Sambasiva Rao, S/o Satyanarayana, 37 years, Hindu, Cultivation & Cable Business, D.No.10-16, Nunnavari Street, Draksharama, Ramachandrapuram Mandal, E.G.Dt.

Name of accused:

Konde Annapurna, W/o Sarath Chandra @ Sarath 34 years, Curry point business, D.No.1-300, New D.No.102-2-350, Muralikonda, Bommuru of Rajamahendravaram (R) (M).

Nature of offence : U/Secs.138 & 142 of N.I. Act

Plea of accused : Not guilty

Finding : Found not Guilty

ORDER:-

In the result, accused is found not guilty for the offence pun- ishable U/Sec. 138 of N. I. Act 1881 and accordingly, accused is acquit- ted U/Sec.255 (1) of Cr.P.C., and she is set at liberty. The bail bonds of accused as well as her sureties shall stand cancelled after expiry of six months u/Sec.437-A Cr.P.C.

Sd/- N. USHA LAKSHMI KUMARI

Addl. Judicial Magistrate of First Class, Ramachandrapuram.

Copy submitted to the Hon’ble Chief Judicial Magistrate-cum-

Principal Assistant Sessions Judge, East Godavari,

Rajamahendravaram.

// True Copy //

1

IN THE COURT OF THE ADDL. JUDICIAL FIRST CLASS MAGISTRATE:

RAMACHANDRAPURAM.

Present: Smt. N. Usha Lakshmi Kumari, Addl. Judicial Magistrate of First Class, Ramachandrapuram

Wednesday, the 18th day of March, 2020.

C.C.No.287/2019

Between: State : Sub-Inspector of Police,

Ramachandrapuram Police Station. ... Complainant.

And

Palivela Prasanna Kumar, S/o Yarrayya (late), 50 years, SC-Madiga, Chodavaram of Ramachandrapuram Mandal.

(Driver of Tata Magic bearing registration No. A.P.05 TC 7362) ... Accused.

This case is coming on 17.03.2020 before me for final hearing in the presence of Smt. K. Sudharani, Assistant Public Prosecutor, Advocate for complainant and of Sri V.V.S.N. Murthy and Sri K. Abburam, Advocates for accused, upon hearing both sides and having stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

1.This case emerges out of the police report filed by the Sub-

Inspector of Police, Ramachandrapuram P.S., against the accused in Crime

No.42/2019 for the offence punishable under Sec.304-A of I.P.C.

2.The case of the prosecution, in brief, is that on 22.02.2019 at about 5.00 p.m., the deceased/Palivela Raj Kumar and his friend/Kota Eswara

Satya Nagendra/L.W.5 after completion of their works, they returning to their houses in Chodavaram. L.W.5/Kota Eswara Satya Nagendra riding bicycle and in the mean time at about 11.50 p.m., when they reached near VKR Empire

Estate in Pasalapudi-Chodavaram bye-pass road, accused drove Tata Magic

Vehicle bearing Registration No. AP 05 TC 7362 in a rash and negligent manner with high speed and dashed behind the deceased bicycle due to which the deceased/Raj Kumar and L.W.5/Kota Eswara Satya Nagendra fell down and that the deceased/Raj Kumar received severe bleeding injury on his head and that accused stopped his vehicle for a while and none were present at the scene spot and that he fed away along with crime vehicle. L.W.5/Satya

Nagednra informed the same to L.W.1/Palivela Suguna Rao over phone of

L.W.6/Macha Peda Machara Rao and that L.Ws.1 to 3 viz., Palivela Suguna 2

Rao, Palivela Sunil Kumar and Juthuga Kameswararao rushed to the spot and shifted the deceased to Area Hospital, Ramachandrapuram and the Doctor examined and declared that the deceased was brought dead.

a)On 23.02.2019 at about 9.00 a.m., L.W.13/the then Sub

Inspector of Police, Ramachandrapuram P.S., received MLC death intimation of deceased from Area Hospital, Ramachandrapuram and in the meantime

L.W.1/Palivela Suguna Rao came to police station gave a written Telugu report, perused the same, registered as a case in Cr.No.42/2019 U/Sec.304(A) IPC and investigated the matter.

b)During the course of investigation, L.W.13/S.I. of Police issued

FIR, submitted to the court, copies to the concerned, examined L.W.1/P.

Suguna Rao, recorded his statement, secured presence of L.Ws.8 and 9 viz.,

Penkey Satyanarayana Murthy and Neduri Sekhar Babu and they rushed to the scene of offence, L.W.13 drafted scene observation report, prepared rough sketch, photographed the scene of offence, visited mortuary shed, Area

Hospital, Ramachandrapuram, held inquest over the dead body of the deceased in the presence of inquest panchayatdars/L.Ws.8 to 10 and L.Ws.1 to 6 viz., Palivela Suguna Rao, Palivela Sunil Kumar, Juthuga kameswararao,

Mandapalli Vamsi, Kota Eswara Satya Nagendra and Macha Peda Macha Rao, secured presence of L.Ws.2 to 6 viz., Palivela Sunil Kumar, Juthuga kameswararao, Mandapalli Vamsi, Kota Eswara Satya Nagendra and Macha

Peda Macha Rao, recorded their statements, photographed the dead body of the deceased and thereafter the dead body of the deceased handed over to its relatives after completion of PM Examination.

c)On 08.03.2019 L.W.13 secured the presence of accused on his voluntarily surrender, served notice U/Sec.41(a) Cr.P.C., secured the crime vehicle from the accused, on 17.4.2019 he obtained PM Certificate from

L.W.11/Dr. Md. K.A. Khan, CAS., Area Hospital, Ramachandrapuram in which he opined that the cause of death of the deceased is would have appeared due to severe head injury with depressed skull over with intra cerebral hemorrhage with severe blood loss, on 01.06.2019 he arrested the accused and released him after obtaining sufficient sureties, on 17.06.2019 he addressed to 3

L.W.12/AVV Satyanarayana, MVI, Mandapeta to inspect the crime vehicle, on that L.W.12/MVI inspected the crime vehicle i.e., Tata Magic bearing

Registration No. AP 05 TC 7362 in which he opined that the accident was not due to any mechanical defect of the vehicle, on 17.6.2019 he handed over the crime vehicle to the accused and after completion of investigation, he filed charge sheet.

3.This case was taken on file under Sec.304 (A) of I.P.C., against the accused.

4.On appearance of accused, copies of the documents were furnished to him as required under Sec.207 Cr.P.C.

5.Accused is examined under Sec.251 Cr.P.C., and the substance of accusation for the offence under Sec.304 (A) I.P.C., is read over and explained to the accused, for which accused denied the commission of the offence by him and pleaded not guilty and claimed to be tried.

6. In order to prove the case of prosecution, the prosecution cited as many as 13 witnesses, out of which they could able to examine P.Ws.1 to 7 and got marked Exs.P.1 to P.9. The learned A.P.P., has given up the evidence of L.Ws.2 to 4, 9 and 10 viz., Palivela Sunil Kumar, Juthuga Kameswararao,

Mandapalli Vamsi, Neduri Sekhar Babu and Mandapalli Nani Babu respectively.

The evidence of L.W.6 viz., Macha Peda Macha Rao was closed as death certificate of him is filed.

7.After completion of prosecution evidence, accused is examined under Sec.313 Cr.P.C., and the incriminating material in the evidence of prosecution witnesses is put forth to the accused, for which he stated all false and reported no defence evidence.

8.Heard the learned A.P.P., and the learned defence counsel and perused the material available on record.

9.Now the point that arises for determination is:

Whether the prosecution is able to establish the guilt of accused for the alleged offence punishable under Sec.304

(A) of I.P.C., beyond all reasonable doubt?

4

10.P O I N T:-

In order to prove the offence under Sec.304 (A) I.P.C., the prosecution has to prove that;

1) Palivela Raj Kumar died due to the injuries sustained in the road accident;

2) Accused drove the crime vehicle in a rash and negligent manner and caused the accident, resulting the death of the deceased.

10. POINT No.1:- P.W.1/Palivela Sugunarao who is father of deceased/Palivela Raja Kumar deposed that on 22.2.2019 evening hours the deceased/Raja Kumar along with his friends went Mutchimilli Savaram for the purpose of catering and later he received phone call that the deceased met with an accident at Bye pass road, Ramachandrapuram, on that he went there and the deceased was lying with bleeding injuries, immediately he was shifted to Area Hospital, Ramachandrapuram and he gave Ex.P1/Report.

b)P.Ws.2 and 3 deposed that they do not know anything about this case and they also do not know the accused. They completely turned hostile and they deposed that police did not examine them.

At that stage, the learned A.P.P., sought permission to declare him as hostile, permission granted. P.Ws.2 and 3 completely turned hostile and their evidence is no way helpful to the case of the prosecution. They denied their earlier statements which were given before police as in Exs.P2 and P3 i.e., 161 Cr.P.C. statements of P.W.2 and 3.

c)P.W.4/AVV Satyanarayana, MVI, Peddapuram deposed that on 11.6.2019 after receipt of requisition from Sub Inspector of Police,

Ramachandrapuram he inspected the crime vehicle bearing No. AP 05 TC 7362 and found no damages and the vehicle was put to road test and found that the breaking system is intact in order and he opined that accident was not due to any mechanical defects of the vehicle and accordingly, he issued

Ex.P4/M.V.I. Report.

d)P.W.5/Penke Satyanarayana, VRO, Velampalem deposed that on 23.2.2019 at 9.30 a.m., himself, L.W.9/M. Sekhar, VRA and Sub Inspector of

Police and his staff proceeded to Chodavaram Bye pass road, conducted scene 5 observation, observed blood stains, further observed that culvert wall was damaged, he drafted Ex.P5/Scene Observation Report and he along with

L.W.9/Neduri Sekhar Babu and Sub Inspector of Police signed on it and on the same day inquest was conducted at 11.30 a.m., at Area Hospital,

Ramachandrapuram over the dead body of the deceased/Rajakumar and they opined that the injuries caused in the accident and accordingly, he drafted

Ex.P6/Inquest Report.

e)P.W.6/Md. K.A. Khan, CAS., Area Hospital, Ramachandrapuram deposed that he signed on the postmortem report and on 23.2.2019 at 3.00 p.m., after receiving requisition from Sub Inspector of Police, Ramachandrapuram to conduct Autopsy over the dead body of Palivela Raja Kumar, he conducted

Autopsy and he found the following injuries.

1. The depressed skull fracture of above 4x3x2 cm over occiput region

2. A contusion of about 3x2 cm over occiput region of scalp

3. A contusion of about 3x2 cm over right shoulder joint

4. An abrasion over back of right (2x1 cm) and left (3x2 cm) elbow joints respectively

5. An abrasion of about right (2x1 cm) and left (2x1 cm) back ankle joint respectively

6. An abrasion horizontal of above 5x2 cm at lambar region at L1-L2.

7. An abrasion of above 2x1 cm medical aspect of days left greater toe

P.W.6 opined that the cause of death is due to severe head injury with depressed skull fracture over occiput with intra cerebral haemmorage with severe blood loss and he issued Ex.P7/P.M. Certificate.

f)P.W.7/S. Lakshmikantham, the then Sub Inspector of Police,

Ramachandrapuram deposed that on 23.2.2019 she received report from

P.W.1, basing on the same, she registered a case in Cr.No.42/19 U/Sec.304-A

IPC., issued Ex.P8/FIR, submitted to the court, copies to the concerned, recorded his statement, visited scene of offence, drafted scene observation report, prepared Ex.P9/Rough Sketch, visited Area Hospital,

Ramachandrapuram, recorded the statements of L.Ws.2/Palivela Sunil Kumar, 6

L.W.3/Juthuka Kameswara Rao, L.W.4/Mandapalli Vamsi, P.W.2 and

L.W.6/Macha Peda Macharao, he conducted inquest over the dead body of deceased in the presence of mediators/P.W.5 and L.W.9/N. Sekhar Babu and

L.W.10/Mandapalli Nani Babu, again visited scene of offence, recorded the statement of P.W.3, on 8.3.2019 he secured presence of accused, served

Sec.41(a) Cr.P.C., notice, after obtaining sufficient sureties, accused was released on station bail, on 17.4.2019 he obtained P.M. Certificate of deceased, on 1.6.2019 served requisition to MVI and after receiving MVI

Report, she filed charge sheet.

11.After careful scrutiny of prosecution witnesses coupled with the documents Exs.P.6 and P.7, it clearly reveals that the deceased died due to the injuries sustained in the road accident. The testimony of P.W.1 was well corroborated with the testimonies of P.Ws.4 to 7 and from Ex.P.7 postmortem report. As such this Court has no hesitation in saying that the deceased died due to the injuries sustained in the road accident. Accordingly, this point is answered.

12.POINT No.2:-P.W.1 is hearsay witness. P.Ws.2 and 3 turned hostile. P.W.4 is M.V.I. P.W.5 is VRO. P.W.6 is CAS., and P.W.7 is police person.

13.With regard to the identity of the accused, none of the prosecution witnesses deposed about the accused and his identity particulars.

Except the testimony of P.W.7, there is no other evidence let in by the prosecution to prove his involvement in the said accident. Hence, there is no eye witness for the alleged incident. Without any independent witnesses, it cannot be safe to say that the accused drove his Tata Magic bearing

Registration No. AP 05 TC 7362 in a rash and negligence manner resulting in the death of the deceased. Except P.W.7, there is no identification of accused. The testimony of P.W.7 that accused voluntarily surrendered before her cannot be considered as the prosecution has to independently establish the involvement of the accused in this case. Admittedly the alleged confession made in the presence of police and hence the extra judicial confession cannot be looked into under Section 25 of the Indian Evidence Act. Accordingly, 7 the prosecution failed to establish that the accused is the driver of the crime vehicle at the time of accident.

14.In the light of above discussion, this court finds that though the prosecution is able to establish the death of the deceased/Palivela Raj Kumar in the road accident and the involvement of the crime vehicle, but failed to establish the identity of the accused and rashness and negligence on the part of the accused in driving the crime vehicle and thereby failed to prove the guilt of the accused for the offence under Sec.304 (A) I.P.C. beyond all reasonable doubt. As such, accused is entitled for acquittal.

15.In the result, accused is found not guilty for the offence under

Sec.304 (A) of I.P.C. Accordingly, he is acquitted under Sec.255 (1) Cr.P.C.

The bail bonds of the accused shall stands cancelled after expiry of appeal time as contemplated under Sec.437 (A) Cr.P.C. There is no marked or unmarked case property in this case.

Typed to my dictation by the Grade III Stenographer, corrected and pronounced by me in the Open Court, on this the 18th day of March, 2020.

Addl. Judicial Magistrate of First Class, Ramachandrapuram.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Complainant:-For Accused:- None

P.W.1: Palivela Sugunarao P.W.2: Kota Easwara Satya Nagendra P.W.3: Rayudu Arjuna Rao P.W.4: A.V.V. Satyanarayana P.W.5: Penke Satyanarayana P.W.6: Md. K.A. Khan P.W.7: S. Lakshmikantham

DOCUMENTS MARKED

For Complainant:- For Accused:- NIL.

Ex.P.1 : Report Ex.P.2 : 161 Cr.P.C. statement of P.W.2 Ex.P.3 : 161 Cr.P.C. statement of P.W.3 Ex.P.4 : M.V.I. Report Ex.P.5 : Scene Observation Report Ex.P.6 : Inquest Report Ex.P.7 : P.M. Certificate Ex.P.8 : F.I.R. Ex.P.9 : Rough Sketch

Material Objects:- NIL.

Addl. Judicial Magistrate of First Class, Ramachandrapuram.

8

ABSTRACT: EAST GODAVARI

CALENDER AND JUDGMENT

CALENDER CASES TRIED BY SMT. N. USHA LAKSHMI KUMARI

ADDL. JUDICIAL FIRST CLASS MAGISTRATE: RAMACHANDRAPURAM

C.C.No.287/2019

Date of Offence: 22.02.2019 Complaint: 23.02.2019 Apprehension of the accused: -----

Released on bail: ----- Commencement of trial: 10.01.2020 Closure of Trial: 16.03.2020 Sentence or Order: 18.03.2020 Explanation for delay: ---

Name of the complainant: State : Sub-Inspector of Police, Ramachandrapuram Police Station.

Name of accused:

Palivela Prasanna Kumar, S/o Yarrayya (late), 50 years, SC-Madiga, Chodavaram of Ramachandrapuram Mandal. (Driver of Tata Magic bearing registration No. A.P.05 TC 7362)

Nature of offence : U/Sec.304 (A) of I.P.C. Plea of accused : Not guilty Finding : Found not guilty ORDER:-

In the result, accused is found not guilty for the offence under Sec.304 (A) of I.P.C. Accordingly, he is acquitted under Sec.255 (1) Cr.P.C. The bail bonds of the accused shall stands cancelled after expiry of appeal time as contemplated under Sec.437 (A) Cr.P.C. There is no marked or unmarked case property in this case.

Addl. Judicial Magistrate of First Class, Ramachandrapuram.

Copy submitted to the Hon’ble Chief Judicial Magistrate-cum-Principal Assistant Sessions Judge, East Godavari, Rajamahendravaram.

// True copy //

Addl. J.F.C. Magistrate, Ramachandrapuram.

1

IN THE COURT OF ADDL. JUNIOR CIVIL JUDGE-CUM-A.J.F.C.

MAGISTRATE, RAMACHANDRAPURAM.

PRESENT:: SMT. N. USHA LAKSHMI KUMARI,

ADDL.J.C.J-CUM-A.J.F.C. MAGISTRATE.

Tuesday, the 17th day of March, 2020.

Original Suit No. 198 of 2019.

Between

Kandula Bhima Venkata Sri Sai Vishal, S/o Varaparasad, 15 years, Hindu, Student. (Being minor rep. by his Power of Attorney Holder Koripella Venkata Rao, S/o Pattabhiramayya, 62 years, Hindu, cultivation, Kunduru of K. Gangavaram Mandal. … Plaintiff.

And

1Vytla Achyutha Rama Prasad, S/o Surya Rao, 60 years, Hindu, Cultivation, Guruvu Street, Kunduru, K. Gangavaram (M).

2Vytla Papa Rao, S/o Surya Rao, 62 years, Hindu, Cultivation, Guruvu Street, Kunduru, K. Gangavaram Mandal, E.G.Dt. … Defendants.

This suit is coming on 12.03.2020 for plaintiff’s exparte evidence before me in the presence of M/s. K. Ramachandra Rao, Advocate for plaintiff and the defendants 1 and 2 are called absent and set ex-parte and on perusing the material papers on record and upon hearing the plaintiff’s counsel, this court made the following:

J U D G M E N T

1.This is a suit filed for declaration of title of the plaintiff over the plaint schedule property i.e., Ac.0.24 cents of land, for recovery of possession there of from the defendants, for recovery of damages from the defendants @

Rs.33,600/- from June, 2017 to June, 2019 for unauthorized use and occupation of Plaint Schedule Property and future damages of Rs.5,000/- which is tentatively estimated and for costs of the suit.

2.The brief averments of the plaint are that:

a) The Plaintiff is the absolute owner of the Plaint Schedule Property which was purchased by him on 7.7.2012 from one Kodavati Bharata Lakshmi vide Doc.No.1844/12 of Draksharama Sub Registrar Office and since then he is enjoying the same. Pattadar pass book and title deed were also issued in his 2 name and he has been paying land taxes in his name. The proximate predecessor was Koripella Bapanamma, sold the same to Kodvati Bharata

Lakshmi and Meka Nagalakshmi through a registered sale deed on 25.1.2001 vide Doc.No.531/01 and later Meka Nagalakshmi alienated her property to one

Kodavati Bharatha Lakshmi on 16.7.2005 through a registered sale deed vide

Doc.No.1752/05. Later, said Kodavati Bharatha Lakshmi sold out the same to the Plaintiff. The defendants are trying to cook up some documents and proclaiming in the village that the suit Schedule Property belongs to them.

On that, in the 2nd week of May, 2016, the elders also advised them not to make any illegal claims over the suit Schedule Property but they did not hear their words and in the month of June, 2017 they occupied the suit Schedule

Property and proclaiming that it belongs to them.

b)It is further averred in the plaint that on 7.6.2019, the Plaintiff got issued a registered legal notice to the defendants. On that D1 received the same but he neither replied nor complied with. D2 refused to take the notice and returned the same. Hence, the suit.

3.After receiving the registered post summons from this court, defendants/D1 and D2 appeared before this court and Sri V. Gopalarao filed

Vakalat for D1 and D2. Even though the statutory period is completed, the defendants did not choose to file their Written Statements and hence, they became set exparte on 21.01.2020.

4.In order to prove the case of the plaintiff, the Plaintiff himself examined as P.W.1 and got marked Exs.A.1 to A.5. On the other hand

Defendants/D1 and D2 remained ex-parte.

5.Now the point for consideration is:

Whether the plaintiff is entitled for declaration of his title over the Plaint Schedule Property, for recovery of possession from the defendants, recovery of damages from the defendants at Rs.43,600/- from June, 2017 to 3

June, 2019 for their unauthorized use and occupation and future damages of

Rs.5,000/- as prayed for?

6.In order to prove the case of the plaintiff, the plaintiff has relied on the evidence of P.W.1, Exs.A1 to A5.

7.P.W.1/Koripella Venkata Rao in his chief examination deposed in the same lines of plaint and reiterated the same averments and got marked

Exs.A1 to A5. Ex.A1 is certified copy of registered sale deed executed in favour of Plaintiff, dt.7.7.2012. Ex.A2 is the original Pattadar pass book in the name of Plaintiff. Ex.A3 is the market value certificate issued by S.R.O.,

Draksharama. Ex.A4 is office copy of registered legal notice got issued by the

Plaintiff to the defendants, dt.7.6.2019 and Ex.A5 is the refused registered cover from D2.

8.On the other hand defendant Nos.1 and 2 remained ex-parte and they did not challenge the evidence of P.W.1 and Exs.A1 to A5.

9.The unchallenged evidence of P.W.1 and Exs.A1 to A5 established that the plaintiff is the owner of the plaint schedule property and in the month of June, 2017, the defendants high handedly occupied from the possession of the Plaintiff, even though they came to know about the suit proceedings and filed vakalat, the defendants/D1 and D2 did not choose to file their Written

Statements and failed to contest the suit.

10.Therefore, the plaintiff is entitled for declaration of right and title in respect of plaint schedule property, the defendants are directed to hand over the possession of the Plaint Schedule Property to the plaintiff within 3 months from the date of judgment, further directed to pay at Rs.33,600/- from June, 2017 to June, 2019 for their unauthorized occupation of Plaint

Schedule Property and future damages of Rs.5,000/- which is tentatively estimated. Accordingly, this court answered this point in favour of the plaintiff and against the defendants.

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11.In the result, the suit of the plaintiff is decreed with costs declaring the right and title of the Plaintiff over Plaint Schedule Property. The defendants are hereby directed to hand over the possession of the Plaint

Schedule Property to the plaintiff within 3 months from the date of this judgment, further directed to pay at Rs.33,600/- from June, 2017 to June, 2019 for their unauthorized occupation of Plaint Schedule Property and to pay future damages of Rs.5,000/- which is tentatively estimated. If the defendants failed to do so, the Plaintiff is at liberty to proceed as per law.

Typed to my dictation by the Gr.III Stenographer, corrected and

pronounced by me in open court, on this 17th day of March, 2020.

Addl. Jr. Civil Judge Cum A.J.F.C. Magistrate, Ramachandrapuram.

Appendix of Evidence Witnesses Examined for

Plaintiff:

P.W.1: Koripella Venkata Rao

Defendants:NIL

Documents Marked.

For Plaintiff:

Ex.A.1: Certified copy of registered sale deed executed in favour of Plaintiff, dt.7.7.2012

Ex.A.2: Original Pattadar pass book in the name of Plaintiff

Ex.A.3: Market value certificate issued by S.R.O., Draksharama

Ex.A.4: Office copy of registered legal notice got issued by the Plaintiff to the defendants, dt.7.6.2019

Ex.A.5: Refused registered cover from D2.

For defendants: Nil.

Addl. Jr. Civil Judge Cum A.J.F.C. Magistrate, Ramachandrapuram.

IN THE COURT OF PRL. JUNIOR CIVIL JUDGE::RAMACHANDRAPURAM

Present: Sri M.Siva Kiran, PRL.JUNIOR CIVIL JUDGE 

Tuesday, this the 25th day of September, 2018

E.P.109/18 in O.S.14/18

Between: Anasuri Srinu .... Decree Holder

And

Chavalam Bullabbai Dora .... Judgment Debtor

This petition coming before me on 24.09.18 for final hearing in the presence of Sri S.Satyanarayana, Advocate for D.Hr and Sri P.Sankara Srinivas, Advocate for the J.Dr and upon hearing both sides and on perusal of material papers on record and having stood over for consideration till this day, this court has delivered the following:­

O R D E R

This E.P is filed by the D.Hr against the J.Dr under Or.21 Rule 48 of

CPC for realisation of the decretal amount by attaching the salary of the

Jdr, subject to Sec.60 CPC.

2.The case of the D.Hr is that this court passed a decree in his favour for recovery of decree amount together with costs and subsequent interest, but, the JDr failed to discharge the amount till today and he is an employee and getting salary of Rs.40,000/­ per month. Hence, the petition.

3. After receipt of notice, the Jdr made his appearance through his counsel and filed counter by denying the averments of the petition and submitted that the DHr filed the E.P. with an intention to get wrongful gain and to cause loss to the JDr and the Dhr with an ulterior motive filed the suit against the JDr and obtained decree and filed this E.P with a view to harass the JDr. He further submitted that he never executed any promissory note in favour of the DHr and there is no debtor and creditor relationship. He submitted that he is suffering from Liver 2 problem and used to spend most of his salary for medicines to survive his life and the remaining salary to feed his family members. Except the salary, there is no other source of income and the DHr is not entitled to seek any relief. Hence, prayed to dismiss the E.P.

4. No oral or documentary evidence is adduced on either side.

5. Heard. Perused the record.

6. Now the point for consideration is: 

“Whether the salary of the JDr can be attached in the present

petition as prayed for?

7.Point:­

There is no dispute about passing of decree in favour of the Dhr by this court in O.S.14/18 and the DHr also filed the certified copy of the decree. It is not the case of the Jdr that he honoured the decree. The contention of the JDr that he never executed the pronote in favour of the

DHr and there is no creditor and debtor relationship cannot be considered at this stage as this court passed the judgment and decree in favour of the DHr. The further contention of the JDr is that he is suffering from Liver problem and used to spend most of his salary for medicines and to feed his family members. The JDr failed to produce any kind of documentary evidence to show that he is suffering from Liver problem. In the absence of the same, the contention of the JDr cannot be considered. This court called for the salary particulars of the JDr from his garnishee, and accordingly, the garnishee furnished the salary particulars of the JDr for the month of December, 2016 as the JDr is unauthorizedly absent from his duties from time to time. Perusal of the salary slip of the JDr reveals no subsisting attachments. It is not the case of the JDr that he preferred any appeal. As such, this court can 3 proceed further. Hence, the salary of the Jdr can be attached, however subject to Sec.60 CPC. The salary particulars of the JDr reveals that he is getting a basic pay of Rs.25,840/­ per month and D.A. of Rs.2,302/­ and H.R.A. of Rs.5,168/­ and C.C.A of Rs.300/­ and his total deductions are Rs.6,925/­. In a decision rendered by our Hon'ble High Court of A.P.

in Ramadasu Krishna Murthy Vs. Katla Vijaya lakshmi and other reported in 1997 (2) ALT page 412, it was held that the allowances i.e., D.A. and H.R.A would not include within the term ‘salary’. Thus, the net salary of the JDr is of Rs.25,840/­ and his deductions are of

Rs.6,925/­. After excluding the deductions from the net salary the amount remained in the hands of the JDr is Rs.18,915/­ per month. As per Sec.60 CPC the first Rs.1,000/­ of the salary of the JDr is exempted from attachment i.e., Rs.18,915/­ ­ Rs.1,000/­ = Rs.17,915/­ and further 1/3rd of the remaining portion of the salary of the JDr is liable for attachment i.e., Rs.17,915 x 1/3 = Rs.5,971/­. Thus, an amount of

Rs.5,971/­ is liable to be attached from the salary of the JDr for a period of 24 months. Hence, this court is inclined to allow the present petition.

8.In the result, this petition is allowed. Issue Rule 48 CPC attachment warrant to the garnishee of the Jdr on payment of process and garnishee is directed to deduct an amount of Rs.5,971/­ for a period of 24 months or till realization of the warrant amount whichever is earlier. Call on 29.10.2018.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in Open Court on this the 25th day of September,

2018.

PRL. JUNIOR CIVIL JUDGE,

RAMACHANDRAPURAM.

No oral or documentary evidence on either side.

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P.J.C.J.