Smt Nageedi Srilakshmi

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IN THE COURT OF I-ADDL. JUDICIAL MAGISTRATE OF I CLASS ::

SRIKAKULAM.

Present : Smt. N.Sree Lakshmi, I-Addl. Judicial Magistrate of I Class :: Srikakulam.

Thursday, this the 13th day of August, 2020.

C.C.No.492/2019

This case has come before me on 05.08.2020, for final hearing and disposal in the presence of the Learned Senior Assistant Public Prosecutor for the Complainant/State and Smt.V.Hari Priya, Counsel for the Accused and upon hearing on both sides and the matter having been stood over for consideration till this day, this Court delivered the following:

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

a)The Serial No. of the case: CC.No.492/2019

b)The Date of Offence: 18-12-2012.

c)The Name of the Complainant: State represented by the Inspector of Police, Srikakulam Circle.

d)Name of the Accused: A1) Bharath Bhushan Banasa, S/o.Om Prakash Bansal, Aged 52 Years, Occupation: Communication Agent, Caste:Baniya, R/o.H.No.135, C2 CP Mission Compound, Near Railway Lane, Chepri Bazar Thana, Jhansi District, Uttar Pradesh State.

A2) Mathura Prasad Kusuma @ Pappu Peele, S/o.Laxmi Narayana Kusuma,Aged42Years, Occupation:Painter,Caste:BC Kusuma,R/o.Shindekichavani, Lakshman Talayya village, Gwalior Mandal, Bodapool Thana, Madhya Pradesh State.

e)The offence complained of: Offences under Sections 454 and 380 of IPC.

f)The plea of Accused and their: A1 and A2 pleaded not guilty. examination, if any.

The Inspector of Police, Srikakulam Circle, has filed Charge-Sheet against the A1 and A2 in Crime No.241/2012, for the offences punishable under

Sections 454 and 380 of IPC.

2.The Case of Prosecution in brief is that : on 18-12-2012, in between 11.45 hours and 12.45 hours, at Jagannadhanagar colony, Aditya

Residency, Chapuram Panchayat, Srikakulam Rural mandal, some unknown

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-2- culprits gained entrance into the house of LW.1/Bhasuru PrasadaRao, by broke opening its lock and committed theft of (1) Gold Haram set weighing about 5 tulas, (2) Gold chains-3 weighing about 3 tulas, (3) Bracelets-3 weighing about 1 ½ tula, (4) Gold bangles -2 weighing about 2 tulas, (5) Ring with Green stone weighing about ½ tula, (6) Silver Plate, silver glass, 4 depapu kudnulu, Silver

Ginne weighing about ½ kg and (7) Cash of Rs.50,000/-, all worth Rs.2,20,000/- from iron safe and decamped with the booty. As such, LW.1 presented a report and basing upon it, LW.19/M.Avatharam, Sub-Inspector of Police, Srikakulam Rural

P.S., registered as case in Crime No.241/2012 under Sections 454 and 380 of IPC and investigated into.

a)On 16-02-2019, at 09.00 hours, LW.18/Ch.Jetendra Reddy, Detective

Inspector of Police, Hayathnagar P.S, Cyderabad, Telangana State, arrested the

Accused in Cr.No.21/2019, under Sections 454 and 380 of IPC of Hayathnagar P.S and recovered the stolen property, in the presence of mediators, i.e., LW’s.9 & 10 (LW.9/M.Yadayya, VRO, Bagh Hayathnagar, Rangareddy District and

LW.10/K.Narasimha, VRO, Munaganoor, Abdullapur Mate (M), Rangareddy District) and sent them for remand, after taking finger-prints of both the Accused and during recording the Confessional Statements of both the Accused, in the presence of mediators, i.e., LW’s.9 & 10, the Accused admitted to have committed this offence, in the month of December, 2012, at Srikakulam, i.e.,

Cr.No.241/2012, for the offences punishable under Sections 454 and 380 of IPC.

b)Later LW.22/B.Prasada Rao, Inspector of Police, Srikakulam Circle, after getting radio message, about matching of chance-print with the finger print of A1, got re-open the case and he got the Accused on P.T Warrant, took them into custody and recorded their Confessional Statements, in the presence of LW’s.11 & 12 (LW.11/D.Varalaxmi, VRO, Chapuram Village, Srikakulam.LW.12/S.Jangalu, VRA,

Chapuram village. Then, LW.21/M.Chinnam Naidu, Sub-Inspector of Police,

Srikakulam Rural P.S., as per the instructions of LW.22/Inspector of Police, went to the house of A1, situated at Jhansi, Uttar Pradesh state and recovered the 7 Tulas

Gold Ornaments, worth of Rs.87,500/-, in the presence of LW’s.13 & 14

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-3- (LW.13/K.Syamala Rao and LW.14/M.Srinu, under cover of Mediators Report and

LW.22 sent the Accused, for judicial custody.

c)LW.22 got identified the seized stolen property, by LW.1/B. Prasada

Rao, through LW’s.11 & 12 (LW.11/D.Varalaxmi, VRO, Chapuram Village,

Srikakulam and LW.12/S.Jangalu, VRA, Chapuram village), under the cover of Test

Identification Parade Report. LW.15/D.S.V.Koteswara Rao, Inspector of Police,

Finger Print Unit, CID, Srikakulam, inspected the scene of offence and collected the chance-prints of culprits and LW.16/B.Murali Mohana Rao, Sub-Inspector of

Police, Finger Print Expert, CID, Srikakulam, compared the Finger Prints of A1.

LW.17/B.V.Satyanarayana, Gold Appraiser, Srikakulam, weighed the seized the gold ornaments and issued Certificate, with their weights. After completion of investigation, LW.23/B.Lalitha, Inspector of Police, Srikakulam Circle, has filed charge sheet against the Accused/A1 & A2, for the offences punishable under

Sections 454 and 380 of IPC.

3.The Court took cognizance of the offences punishable under Sections 454 and 380 of IPC, against the Accused/A1 & A2. On production of Accused/A1 & A2, before the Court, copies of documents were furnished to them, as required under Section 207 of Cr.P.C. The Accused/A1 & A2 were examined under Section 239 of Cr.P.C, by explaining the substance of accusation levelled against them and charges were framed against the Accused, for the offences punishable under Sections 454 and 380 of IPC, read over and explained to them in Telugu, for which, they pleaded not guilty and claimed to be tried.

4.To prove the guilt of the Accused/A1 & A2, the prosecution has examined PW’s.1 to 16 and Exs.P1 to P12 and M.O’s.1 to 11 were marked through them. The evidence of LW.5/T.Varahalu Naidu, LW.6/K.Mohana Rao,

LW.8/D.Rama Rao, LW.10/K.Narasimha, VRO, Munaganoor, Abdullapur Mate (M),

Rangareddy District, LW.12/S.Jangalu, VRA, Chapuram village LW.14/M.Srinu, were given-up by the Learned Senior Assistant Public Prosecutor. The evidence of

LW.18/Ch.Jeetendra Reddy, Detective Inspector of Police, Hayathnagar P.S,

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Cyderabad, Telangana State, was closed by this Court. After closure of the

Prosecution evidence, the Accused/A1 & A2 were examined under Section 313 of

Cr.P.C, by explaining the incriminating evidence appearing against them, for which, they denied it totally and reported no defence evidence. A1 and A2 stated that they were falsely implicated in this case.

5. Heard Arguments on both sides.

6.The learned APP submitted that the prosecution has examined P.Ws 1 to 16 and got marked Ex.P-1 to P-12 and M.Os.1 to 11. She further submitted that P.W.1 is the defacto complainant, he stated about the stolen items from his house and giving of report to the police. P.W.2 is the wife of P.W.1. P.W.3 and P.W.4 are their neighbours. They have deposed about the commission of theft of gold ornaments.

P.W.5 is the mediator for scene observation report. P.W.6 is VRO who acted as one of the mediators for arrest and confessional statement of A1 and A2. P.W.7 is one of the mediators for another confessional statement of A1 and A2 and he is also one of the mediators to the Test identification report. P.W.13 is the one of the mediators for recovery of stolen property from the house of A1 at Jhansi, Uttar Pradesh. P.Ws.8 to 12, 15 and 16 are Investigation Officers. They deposed about the registration of case and investigation conducted by them in this case and filing of charge sheet against A1 and A2. Their evidence is trustworthy and believable to pass conviction of the accused. Therefore, the prosecution has proved the guilty of A1 and A2 beyond reasonable doubt and accused are liable for punishment.

7. The learned counsel for the accused submitted that A1 and A2 falsely implicated in this case. She submitted that the P.W.1 is the reporter in Eenadu News

Paper and as such the prosecution agency falsely implicated the accused in this case in order to close the crime and to help P.W.1. She further submitted that there is no evidence in entire record to connect the accused for the alleged offence.

Hence, the prosecution has failed to prove the guilt of A1 and A2 beyond reasonable doubt. Therefore, accused are entitled for acquittal.

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8. Now the points for determination are :

1. Whether M.Os.1 to 9 belong to P.W.1 respectively and if, so whether they were stolen from his house in Rural circle,

Srikakulam?

2. Whether A1 and A2 committed lurking house trespass to commit theft in the house of P.W.1 and also committed theft of M.O’s.1 to 9, from his house?

3. Whether the prosecution proved the guilt of A1 and A2, for the offence punishable under Sections 454, 380 IPC beyond all reasonable doubt?

9.Points No.1 and 2: I have perused the entire evidence and other material available on record.These points are interconnected. Therefore, they are answered together.

10.The case of the prosecution is that on 18-12-2012, in between 11.45 hours and 12.45 hours, at Jagannadhanagar colony, Aditya Residency, Chapuram

Panchayat, Srikakulam Rural mandal, some unknown culprits gained entrance into the house of PW.1 by broke opening its locks and committed theft of (1) Gold Haram set weighing about 5 tulas, (2) Gold chains-3 weighing about 3 tulas, (3) Bracelets- 3 weighing about 1 ½ tula, (4) Gold bangles -2 weighing about 2 tulas, (5) Ring with Green stone weighing about ½ tula, (6) Silver Plate, silver glass, 4 depapu kudulu, Silver Ginne weighing about ½ kg and (7) Cash of Rs.50,000/-, all worth

Rs.2,20,000/- from iron safe and decamped with the booty. On that PW1 gave report in Rural Police Station.

11.On 16-02-2019, at 09.00 hours, the Accused were arrested and admitted to have committed this offence, before LW.18/Ch.Jetendra Reddy,

Detective Inspector of Police, Hayathnagar P.S, Cyderabad, Telangana State. Later

P.W.15 Inspector of Police, Srikakulam Circle, after getting radio message, about matching of chance-print with the finger print of A1, got re-open the case and he got the Accused on P.T Warrant, took them into custody and recorded their

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Confessional Statements, in the presence of mediators. Then, P.W.10, Sub-Inspector of Police, Srikakulam Rural P.S., went to the house of A1 along with mediators, situated at Jhansi, Uttar Pradesh state and recovered the 7 Tulas Gold Ornaments, worth of Rs.87,500/-, in the presence of P.W.13 & LW.14/M.Srinu, under the cover of

Mediators Report and sent the Accused, for judicial custody. and after completion of investigation, charge sheet was filed against the accused. Thus, accused committed the offence punishable under Sections 454 and 380 of IPC.

12. P.W.1/B. Prasada Rao is the defacto-complainant. He deposed about commission of theft of gold, silver ornaments and cash of Rs.50,000/- in his residence. He also deposed about giving of report to the police. During the cross- examination, he deposed that the police did not caught the culprits in his presence, nor seized the property from them. He denied the suggestion that no theft was occurred in his house and that he deposed false at the instance of police, only for the statistical purpose, in this case.

13.PW.2/B. Varija is the wife of PW.1. PW’s.3 & 4 (PW.3/V. Janaki Suvarna

Latha and PW.4/Mohammad Najma Begam) are the neighbours to PW’s.1 & 2. On perusal of their evidence, it discloses that they have visited the scene of offence after commission of theft of Gold, Silver ornaments and cash of Rs.50,000/-. From the Cross-examination of PW’s.2 to 4, nothing was elicited in favour of prosecution.

14.PW.5/V.Sudhakar Patnaik is one of the mediators for scene observation report. He deposed that on 18.12.2012, at about 04.30 p.m, he, along with LW.8 have visited the scene of offence as per the instructions of Inspector of Police. He further deposed that the police observed the scene in their presence and drafted the scene observation report and police also seized one broken lock and one door latch. During his cross-examination, he denied that he never signed on Ex.P2/Scene observation Report and they never observed the scene in his presence and he was in school on that day.

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15.PW.6/M.Yadayya, VRO, Bagh Hayathnagar, Rangareddy District, is one of the mediators for recording of Confession Statements of the Accused/A1 & A2, at

Hayathnagar, P.S. He deposed that on 16.02.2019, he was directed by the MRO, to visit Badamasid of old Hayathanagar road and he visited the old Hayathanagar road at about 09.00 am, and he saw two persons i.e, the Accused/A1 & A2,in the custody of Police. He further deposed that A1 & A2 confessed before him about the commission of theft of gold ornaments at Uppal and at different places of

Hyderabad and also confessed about the commission of theft, at the residence of

PW.1 in the year, 2012.

16.PW.7/D.Varalaxmi, VRO, Chapuram Village, Srikakulam. She is one of the mediators for recording the Confession Statements of the Accused and Test

Identification Parade Report of the properties. She deposed that on 27-09-2019, at about 02.00 p.m, as per directions of Sub-Inspector of Police, Rural P.S, she along with LW.12/S.Jangalu,VRA, Chapuram Village, Srikakulam, visited the Rural P.S and that A1 & A2 have confessed before them about the commission of theft at

Jagannadhapuram colony in the year, 2012. She further deposed that on 30.04.2019, between 08.00 and 09.00 am, she was again summoned by the Rural

P.S., for conducting of Test Identification Parade of the properties, in her presence.

17.PW.8/D.S.V.Koteswara Rao, Inspector of Police, Finger Prints Unit, CID,

Srikakulam, deposed that on 18.12.2012, he received a phone call from Sub-

Inspector of Police, Rural Police. Accordingly, he visited the scene of offence and he had taken two chance finger prints, which were marked as ‘A’ and ‘B’ on the inner lock of iron almirah. He further deposed that after his analysis, he found that chance print marked as ‘A’ was not matched, but it was fit for comparison and same was submitted data-base and it was un-traced yet, by the State Finger Print Bureau of Hyderabad.

18.PW.9/B. Murali Mohana Rao, is the Sub-Inspector of Police, Finger Print

Expert, Finger Print Unit, CID, Srikakulam. He deposed that on 18.02.2019, he

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-8- received the finger print slip of A1 from Hyathanagar Police Station of Hyderabad and after analysis, he found that the unsolved chance print, which was marked as ‘A’ with respect of the Cr.No.241/2012 of Rural P.S., Srikakulam, was verified and compared with finger prints records of State Finger Print Bureau, CID, Mangalagiri.

He further deposed that during the course of comparison, it was found that the unsolved chance print marked as ‘A’, was found identical with the left-thumb finger impression marked ‘S6’ on the finger print slip marked ‘S’ of by name Bhara

Bhushan Banasa, S/o.Omprakash Banasa, i.e., and he submitted the report to the concerned SHO, Rural P.S.

19.PW.10/M.Chinnam Naidu, Sub-Inspector of Police, Srikakulam Rural

P.S., and he is one of the Investigation Officers in this case. He deposed that on 28.04.2019, after taking the accused into police custody, he visited Jhansi of Uttar

Pradesh, along with the mediators i.e LW’s.13 and 14 and the accused and they visited the house of A1, at about 11.30 a.m. and recovered M.O’s.1 to 9 from the house of A1, under the cover of Mediators Report. During his cross-examination, he deposed that he did not produce any documents before the Court to show that he seized the Gold Ornaments from the house of A1, at Jhansi, Uttar Pradesh State and also he did not obtain the signature of wife of A1, in order to prove that he visited the house of A1, at Jhansi, Uttar Pradesh State.

20.PW.11/M.Avatharam, Sub-Inspector of Police, Srikakulam Rural P.S., is another Investigation Officer. He deposed that on 18.12.2012, at about 03.00 p.m, while he was present in the Police Station, PW.1 lodged a report and basing upon it, he registered the FIR in Cr.No.241/2012, under Sections 454 and 380 of IPC. During his cross-examination, he deposed that as per Ex.P1/Report, the details of the

Accused, were not mentioned, as the theft was committed by some unknown offender. He further deposed that PW.1 was working as a Press-Reporter, in Eenadu.

21.PW.12/M.Maheswara Rao, Inspector of Police, Rural P.S., is another

Investigation Officer. He deposed that on 18-12-2012, he took-up further

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-9- investigation from PW.11 and visited the scene and observed the scene in the presence of mediators, drafted Scene Observation Report and drew Rough Sketch of the scene and also took photographs to the scene. He further deposed that he collected the finger prints of the Accused, with the help of clues-team and then after, he handed-over the case file to LW.22/B.Prasada Rao, Inspector of Police,

Srikakulam Circle, for further investigation. During his cross-examination, he deposed that he did not receive any finger-prints, nor any proofs, with respect to

M.O’s.1 to 9, from PW.9.

22.PW.13/K.Syamala Rao is one of the mediators for recovery of Gold

Ornaments from A1. However, PW.13 turned hostile to the case of the prosecution, by stating that he does not know anything about the case and he never acted as the mediator in this case. Even though the learned APP cross examined PW13, nothing was elicited in favour of prosecution.

23.PW.14/B.V.Satyanarayana, Goldsmith Appraiser, Srikakulam. He deposed that on 03-05-2019, between 10.00 and 11.00 am, the Rural Police approached him and thereby they gave the gold ornaments and asked him to weigh them. Accordingly, he got weighed the ornaments and issued receipt to the police.

24.PW.15/B.Prasada Rao, Inspector of Police, Srikakulam Circle, is the another Investigation Officer. He deposed that on 20-02-2019, he received a Radio message, from Director, Finger-prints Bureau, C.I.D of Mangalagiri, with respect to matching of chance-print with the finger print of A1, in Cr.N.241/2012, under

Sections 454 and 380 of IPC of Rural P.S. He furnished deposed that on 28-02-2019, he obtained permission from the Court, to re-open the case, for further investigation and obtained P.T.Warrant from the Court and recorded the Confession statements of

A1 & A2 and took the Accused/A1 & A2 into police custody from 27-04-2019 to 02- 05-2019, as per the Orders of the Court and he recorded the Confession Statements of the Accused on 27-04-2019, at Rural P.S and basing upon their Confession

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-10- statements, he deputed the S.I of police, alongwith the staff and the Accused, to visit Jhansi of Uttar Pradesh, for recovery of properties. He further deposed that on 03-05-2019, he conducted Test Identification Parade of the properties, by PW.1, in the presence of mediators. During his cross-examination, he deposed that the

Accused did not confess that they have committed theft in Srikakulam, before

Hayathnagar P.S. But, the witness stated that after tracing-out, the finger-prints of

A1, with that of chance prints, sent by the Finger Prints Bureau and later, taking the

Accused into police custody, the Accused confessed that they have committed theft in Srikakulam, with respect to this file.

25.PW.16/B.Lalitha, Inspector of Police, Srikakulam Circle, is the another

Investigation Officer. She deposed that after receiving the case file from PW.15, she took-up further investigation of this case, she filed charge-sheet against the

Accused/A1 & A2.

26.A1 and A2 are charged for the offences under Sections 454, 380 of

IPC. For brevity and better understanding, it is expedient here to extract under

Sections 454 and 380 of IPC.

Section 454 : Lurking house-trespass or house-breaking in order to

commit offence punishable with imprisonment.—

Whoever commits lurking house-trespass or house-breaking, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to ten years.

Section 380 : Theft in dwelling house, etc.,.”

Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.

To substantiate the allegations against the accused, the prosecution has to prove the charge framed against the accused.

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27.According to PW.1, MO’s.1 to 9 belong to him. He deposed his evidence that 18.12.2012, at about 12.45 pm, his wife called him and informed about the commission of theft in his house. Immediately, he visited the house and found that the lock of the main door was open and almirah was broken and the gold ornaments, silver articles and also a cash of Rs.50,000/- were committed to theft by unknown culprits and then, PW.1 gave a report in Srikakulam Rural Police Station.

The learned defence counsel pointed out that no document is produced by PW-1 to establish his ownership over MOs-1 to 9 and therefore the prosecution failed to prove that recovered gold items belong to PW.1. The Ownership of PW.1 is not denied because there is no cross-examination of PW.1 on that aspect. Admittedly, the Accused/A1 & A2 did not claim the recovered property as their own. It is suggested to PW.1 that M.O’s.1 to 9 has not stolen from his house and he gave a false report stating that the Gold items were stolen from his house. In general, no person will give any report to the Police Station, without losing their own property and there is no necessity to PW.1 to give false report. Therefore, the said contention of the Learned Defence Counsel, is not sustainable.

28. The evidence of PW.1 categorically proves that his ownership and theft of M.O’s.1 to 9 from his house. As regards the charge for the offence under

Sections 454 and 380 of IPC, according to Ex.P1/Report, on 18-12-2012, while

P.W’s.2 to 4 went to terrace and after sometime, PW.2 came to her house and found that the main door was opened and thereby the almirah was broken and committed theft of Gold, Silver ornaments and a cash of Rs.50,000/- and she immediately telephoned to PW.1 and informed the same. Then, PW.1 gave report to the

Srikakulam Rural P.S. The prosecution placed reliance on the evidence of PW.7 to prove that A1 & A2 stolen the M.O’s.1 to 9 properties, from the house of PW.1. No doubt, PW.7 has stated that A1 & A2 confessed about the commission of theft of

M.O’s.1 to 9 from the house of PW.1. However, said confession is hit by Sections 25 and 26 of Indian Evidence Act, as it is in-admissible in evidence. Therefore, the evidence of PW.7 is no way helpful to the case of the prosecution to prove the

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Confession Statements of A1 & A2, with regard to the commission of theft of M.O’s.1 to 9, from the house of PW.1.

29.The prosecution has relied on the evidence of PW.9/B.Murali

Mohana Rao, Sub-Inspector of Police, Finger Print Expert, CID, Srikakulam. He deposed that he compared the finger prints of A1 with the chance prints and he found identical with the Left Thumb-Impression marked as ‘S6’ on the finger print slip marked as ‘S’ of by A1. However, Expert evidence is only an opinion evidence and it can be used only for corroboration along with other reliable evience as per the Section 45 of Indian Evidence Act and it is not a substantive evidence, to convict the Accused, for the alleged offence.

30.The evidence of the Investigation Officers, i.e, P.W’s.8, 10 to 12, 14 to 16, are reliable only to the extent of registration of the case and investigation done by them and filing of charge-sheet against the Accused/A1 & A2 and their evidence itself is not sufficient to convict the Accused/A1 & A2 for the alleged offence, without corroboration by sufficient reliable evidence.

31.In view of the above facts and circumstances, there is no reliable evidence on record to connect A1 and A2 for the offence under Sections 454, 380

IPC. It is settled law that if two views are available to the court, the view which is favourable to the accused shall be taken into consideration and that A1 and A2 are entitled for benefit of doubt. Therefore, the prosecution failed to prove the guilt of

A1 and A2 for the offence under Sections 454, 380 IPC. Accordingly, this point is answered.

32.Point No.3: In the result, the Accused/A1 and A2 are found not guilty for the offences punishable under Sections 454 and 380 of IPC and accordingly they are ACQUITTED under Section 248(1) of Cr.P.C. The Accused/A1 and A2 are ordered to be released forthwith, if they are not required, in any other case. The Accused/A1 and A2 are directed to execute bonds for Rs.5,000/- each, in view of Section 437-A of Cr.P.C., to appear before the Appellate Court, if any appeal is filed.

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Property order:

M.O’s.1 to 9 which were given to PW.1 for interim custody, vide orders in

Crl.M.P.No.1530/19 dated 28.11.2019, holds good after expiry of appeal time.

MO.10/Broken Lock and MO.11/Door Latch are ordered to be destroyed, after lapse of appeal time.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me, in open Court, on this the 13th day of August, 2020.

Sd/- Smt.N.Sree Lakshmi,

I-Addl. Judicial Magistrate of I Class, Srikakulam.

Appendix of Evidence

Witnesses Examined

For Prosecution:For Defence: PW.1 : B. Prasada Rao None. PW.2 : B. Varija PW.3 : V. Janaki Suvarna Latha PW.4 : Mohammad Najma Begam PW.5 : V.Sudhakar Patnaik PW.6 : M.Yadayya, VRO, Bagh Hayathnagar, Rangareddy District. PW.7 : D.Varalaxmi, VRO, Chapuram Village, Srikakulam. PW.8 : D.S.V.Koteswara Rao, Inspector of Police, Finger Print Unit, CID, Srikakulam. PW.9 : B.Murali Mohana Rao, Sub-Inspector of Police, Finger Print Expert, CID, Srikakulam. PW.10: M.Chinnam Naidu, Sub-Inspector of Police, Srikakulam Rural P.S. PW.11: M.Avatharam, Sub-Inspector of Police, Srikakulam Rural P.S. PW.12: M.Maheswara Rao, Inspector of Police, Srikakulam Circle. PW.13: K.Syamala Rao PW.14: B.V.Satyanarayana, Gold Appraiser, Srikakulam PW.15: B.Prasada Rao, Inspector of Police, Srikakulam Circle. PW.16: B.Lalitha, Inspector of Police, Srikakulam Circle.

Exhibits Marked

For Prosecution: Ex.P1 : Report given by PW.1 to the Police, dt.18-12-2012. Ex.P2 : Scene Observation Report, dt.18-12-2012. Ex.P3 : Certified copy of Confessional Statement of the Accused, dt.23-02-2019. Ex.P4 : Certified copy of Confessional Statement of the Accused, dt.16-02-2019. Ex.P5 : Confessional Statement of the Accused, dt.27-04-2019. Ex.P6 : Test Identification Parade Report, dt.03-05-2019. Ex.P7 : Comparison Chance Print Report, alongwith Finger Prints copy of Accused/A1, dt.21-02-2019. Ex.P8 : First Information Report, in Cr.No.241/2012, dt.18-12-2012. Ex.P9 : Rough Sketch, dt.18-12-2012. Ex.P10: Signature of PW.13, on Mediators Report, dt.30-04-2019 Ex.P11: Appraiser’s Receipt for Gold Items. Ex.P12: Mediators Report, dt.30-04-2019.

For Defence: Nil.

CC.492/2019, Date:13-08-2020; I-AJMFC/SKLM.

-14-

Material Objects Marked

M.O’s.1 to 3 : 3 Nos. Gold chains, weighing about 3 tulas. M.O’s.4 to 6 : 3 Nos. Gold Bracelets-3 weighing about 1 ½ tula. M.O’s.7 & 8 : 2 Gold bangles, weighing about 2 tulas. MO.9 : One Gold Ring with Green stone weighing about ½ tula. MO.10: Broken Lock. MO.11: Door Latch.

Sd/- Smt.N.Sree Lakshmi,

I-Addl. Judicial Magistrate of I Class, Srikakulam.

1

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE-CUM-JUDICIAL

MAGISTRATE OF I CLASS, SRIKAKULAM.

PRESENT:- Smt.N.Sree Lakshmi,

Prl.Junior Civil Judge-cum- Judl. Magistrate of I Class, Srikakulam.

Friday, this the 30 th day of December, 2022.

C.C. No.1031/2016

Between:

State represented by Sub Inspector of Police, Women Police Station, Srikakulam. …Complainant

And

1. Kilari Bhaskararao @ Papinaidu, S/o. late Suryaprakasarao, aged about 38 years, Kapu by caste, Chinna Bondilipuram, Srikakulam Town.

2. Palli Satyavathi @ Malathi, W/o. Sastri @ Seshagiri, aged about 44 years, Kapu by caste, rest do;

3. Palli Seshagiri @ Sastri, S/o. late Chinna, aged about 48 years, Kapu by caste, rest do; … Accused

This case is coming on 26.12.2022 for final hearing before me in the presence of Learned Assistant Public Prosecutor on behalf of Complainant State represented by the police, and of Sri V. Krishna Chand, Learned counsel for the accused and having stood over for consideration till this day, the Court delivered the following:

J U D G M E N T

1. The Sub Inspector of Police, Women Police Station, Srikakulam filed charge sheet against the accused in Cr.No.34/2016 for the offence under Sections 498-A, 324 of Indian

Penal Code.

2. The averments of the charge sheet are that:

The defacto complainant by name Kilari Uma Maheswari @ Devi (LW.1) is the resident of Chinna Bondilipuram, Srikakulam Town. A1 is her husband. A2 is the wife of

A3 and sister of A1. A3 is the husband of A2 and brother-in-law of A1 and thus all are related to her. On 04.12.2015, the marriage of Kilari Uma Maheswari @ Devi was performed with A1 in the presence of Pandranki Shankar and others on the negotiations made by Pandranki Shankar since she is the daughter of his cousin Pandranki Mohana

Satyanarayana. After the marriage, the accused looked after the welfare of her for about one month only then A1 used to return home in drunken state and harassed her for extracting additional dowry for Rs. 1,00,000/- and by hearing the tale words told by A2 and A3. On coming to know about the harassment made by the accused to Kilari 2 Eswararao, Pandranki Shankarm, Pandranki Mohana Satyanarayana and with their intervention and the accused affected compromise with her. Later, the accused continued their harassment on her, but she tolerated the awful torture of accused for months together.

As the matter stood thus, on 12.10.2016 at 10.00 hrs., A1 used to come house in drunken state and at the time, when she asked him as to why he is not bothering about the harassment made by A2 and A3 on her and whey he has not asked them about the same, on that A1 picked up a stone and when hurled it towards her, it was hit to her chin and she sustained bleeding injury.

On that defacto complainant gave report against the accused before Woman Sub

Inspector of Police, Women Police Station, Srikakulam who registered a case in

Cr.No.34/2016 for the offence under Sections 498-A, 324 of IPC and investigated into.

After completion of entire investigation, the Investigating officer filed charge sheet against the accused. Hence, the charge sheet.

3. The case was taken on file for the offences U/s 324 IPC against A1 and under

Section 498-A of Indian Penal Code and Section 4 of Dowry Prohibition Act against accused/A1 to A3 by learned I Additional Judicial Magistrate of I Class, Srikakulam and numbered as C.C.No.1031/2016.

4. On appearance of accused, copies have been furnished to them under Section 207 Code of Criminal Procedure.

5. At that stage, the matter was transferred from the court of learned I Additional

Judicial Magistrate of I Class, Srikakulam to this court as per the proceedings of Hon’ble

Principal District Judge, Srikakulam communicated vide Dis.No.4677/2018 and continued

with same C.C number.

6. Accused were examined under Section 239 Code of Criminal Procedure, the charge under Section 240 Code of Criminal Procedure was framed for the offence under

Sections 498-A, 324 of Indian Penal Code against them and the same is read over and explained to them in Telugu, for which, they denied the offence and pleaded not guilty and claimed to be tried. Hence, the trial.

7. During the course of trial, the prosecution has examined P.Ws.1 to 11 and got marked Exs.P1 to P14 and MO.1.

3

8. After closure of prosecution evidence, A1 to A3 were examined U/sec.313 Cr.P.C., by putting incriminating material deposed by the prosecution witnesses for which they denied the same and reported no defence evidence.

9. Heard the arguments of learned Assistant Public Prosecutor and learned counsel

for accused.

10. The learned Assistant Public Prosecutor submitted that the prosecution has examined P.W.s 1 to 11. P.W.1 is the de-facto complainant, she deposed about the offence committed by the accused. P.Ws.2 to 5, 8 and 9 are independent witnesses. They did not support the case of the prosecution. They turned hostile to the case of prosecution.

P.W.6 and P.W.7 are mediators, they did not support the case of the prosecution. P.W.10 is the outpost police. He deposed about recording of statement of P.W.1. PW.11 is

Investigation officer. He deposed about registration of case, investigation done by him and filing of charge sheet against the accused/A1 to A3. The evidence of Pws.1, 10 and 11 is sufficient to prove the guilt of accused before the court and prayed to convict the accused. Hence, the prosecution proved the guilt of the accused/A1 to A3 for the offence levelled against them and that the accused are liable for conviction.

11. The learned counsel for accused submitted that except P.W.1, who is the de-facto complainant, remaining witnesses i.e P.W.s 2 to 9 not deposed anything against accused, as all of them turned hostile to the case of prosecution. They contended that since the mediators turned hostile as such MO.1 was not proved before the court. P.W.11 is the

Investigating officer who stated only about him investigation and filing of charge sheet against accused. He contended that except PW1, remaining witnesses turned hostile as such the prosecution failed to prove the guilt of accused/A1 to A3 for the offence under

Sections 498-A and 324 IPC and that the accused are entitled for acquittal.

12. Now, the points for determination are: -

1) Whether A1 to A3 harassed P.W.1 either mentally or physically and demanded her to bring additional dowry?

2) Whether A1 attacked the PW.1 with stone thereby PW.1 sustained injuries?

3) Whether the prosecution has proved the guilt of A1 to A3 for the offences U/s 498-A and 324 of IPC beyond all reasonable doubt?

4

13. Point No. 1:-

I have perused the entire evidence and other material available on record. This case is filed under Section 498-A of IPC.

If the husband or relative of husband of a woman subjects such women to cruelty, he is liable for punishment for the offence under Section 498-A IPC. What is 'cruelty' has been clearly defined in the explanation to Section 498-A IPC. For brevity Section 498-A

IPC is reproduced herein below :

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

Explanation : For the purpose of this Section, “Cruelty” means :

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (Whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand”.

A reading of the explanation of (a) and (b) clearly disclose that the definition of ‘cruelty’ has two meanings, one is, any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the women. The second meaning is, harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

14. I have perused the entire evidence and other material available on record. During trial, the prosecution has examined P.W.s 1 to 11. P.W.1 is the de-facto complainant, she deposed in her evidence that her marriage was performed with Accused about twenty years back and blessed with two daughters. She further deposed that the accused harassed her physically and mentally when he was in drunken state and suspected her character and beat her indiscriminately the accused attacked with MO1 as a result she 5 sustained bleeding injury and went to the police station and the police referred her to hospital and her statement was recorded.

15. On careful scrutiny of evidence of PW1, nothing was deposed with regard to demanding of additional dowry before the court. Therefore, it appears to the court that there is no allegation against the accused before the court about demanding of additional dowry.

16. The prosecution has examined P.W.s 2 to 5, 8 and 9 as independent witnesses, both of them turned hostile to the case of the prosecution by stating that they do not know anything about this case. Inspite of posing questions in the nature of cross examination, the learned Assistant Public Prosecutor could not elicit anything from P.W.s 2 to 5, 8 and 9 to support the prosecution story. Thus, the evidence of P.Ws.2 to 5, 8 and 9 are no way helpful to the prosecution.

17. P.W.6 and P.W.7 are cited as mediators to scene observation report and seizure of MO1 from the scene of offence. However, they both turned hostile to the case of the prosecution by stating that the police obtained their signatures on some papers at police station but they do not know the contents of those papers. Therefore, the scene observation report and seizure of MO1 are not proved before the court.

18. PW10 is the out post police. He deposed about recording of statement of PW1 in hospital. His evidence is reliable to the extent of recording of statement of PW1.

19. P.W.11 is the Investigating officer. He deposed about registration of case, investigation done by him and filing of charge sheet against accused/A1 to A3. His evidence is reliable only to that extent only.

20. The learned counsel for accused contended that PW1 some times behave in a different manner and cause nuisance at the house and dispute with the accused and that the accused didn’t commit any offence.

21. After going through the entire evidence available on record, it discloses that main dispute between PW1 and the accused is that the accused beat PW1 in front of A2 and

A3. At this stage, this court has relied on the decision of the Honourable Supreme Court reported in State of A.P. Vs. M. Madhusudhana Rao 2009 (2) ALT Crl. 271 (SC) has clearly held 6 “ In other words, for the purpose of Section 498-A IPC harassment simpliciter is not ‘cruelty’ and it is only when harassment is committed for the purpose of coercing a woman or any other person related to her to meet an unlawful demand for property etc., that it amounts to cruelty punishable under Section 498-A IPC”.

In view of principle laid down in the above decision, it appears to the court that in the present case, there is no unlawful demand from the accused to attract the offence under

Section 498-A IPC.

22. The learned counsel for Accused contended that from the entire evidence there are no ingredients to attract the offence under Section 498-A IPC against Accused.

Hence, the allegation for demand of additional dowry in the present case also will not attract the definition of ‘cruelty’ U/s.498-A IPC.

23. The expression 'cruelty' as defined in Section 498-A IPC is in two parts, the first part envisages the willful conduct on the part of the husband or his relative towards the woman, which may likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health. In the case on hand, the conduct on the part of PW1 is not said to have been resulted in grave injury or danger to life, limb or health of PW1.

There is no whisper in the entire evidence of PW1 about the harassment made by the accused. On perusal of the evidence of PW1, there is nothing in her evidence about the harassment of the accused, so as to, conclude that it is nothing but a mental cruelty.

24. It is the settled principle of Law that the willful conduct on the part of husband or relative to constitute the meaning of ‘cruelty’ as defined under Section 498-A IPC should be something more than the mere harassment of the woman and such willful conduct would drive the victim to cause grave injury or danger to life, limb or health (whether mental or physical). In the present case, the main grievance by Pws.1 is that accused harassed PW1 and beat her. Thus, from the evidence of PW1, it can be safely inferred that the alleged harassment of the accused has not created necessary impact on the mind of PW1 which would drive her to cause injury or danger to life, limb or health which is necessary ingredient to attract the meaning of ‘cruelty’ given in explanation of Section 498-A IPC.

25. The learned counsel for the accused further contended that there is no evidence adduced or proof established by the prosecution about the alleged demand of dowry at 7 the time of marriage as well as additional dowry, as such, the second part of the expression ‘cruelty’ within the meaning of Section 498-A IPC is also not proved against the accused beyond reasonable doubt.

26. Further, to attract explanation (b) of Section 498-A of Indian Penal Code, P.W.1 should have been harassed with a view to coercive her or any person or valuable security or is on account of failure by her or any person related to her to meet such demand. These ingredients are totally silent in the evidence of prosecution. The omnibus allegations about the accused harassed P.W.1 physically and mentally is not sufficient.

Therefore, there is no probable evidence to attract the second limb of cruelty defined in

Section 498-A of IPC. Accordingly, this point is answered against the prosecution.

27. Point No.2: While coming to Section 324 of IPC, PW.1 deposed in her evidence that the accused beat her with stone on her chin as a result, she sustained injury on chin and she sustained bleeding injury. As seen from the record, the Doctor who examined

PW1 was not examined before the court and his evidence was closed based on the report filed by the prosecution. Therefore, wound certificate of PW1 was not proved before the court. Further, P.Ws.6 and 7 who were cited as mediators to the seizure of M.O.1 also turned hostile to the case of the prosecution by stating that the police did not seize anything in their presence but the police obtained the signatures on report without informing the contents. Therefore, except the evidence of PW1 there is no other evidence

before the court to believe the case of the prosecution. Under these circumstances, this

court got every suspicion to connect A1 for the offence under Section 324 of IPC.

Accordingly this point is answered.

28. Point No.3: For the foregoing reasons, I am of the view that the prosecution failed to bring home the guilt of accused for the offence under Sections 498-A and 324 of

Indian Penal Code beyond all reasonable doubt. Therefore, the benefit of doubt shall be extended to accused. Accordingly, this point is answered against the prosecution and in favour of the accused.

29. In the result, accused/A1 to A3 are found not guilty for the offence punishable under Sections 498-A, 324 of Indian Penal Code. Accordingly, they are acquitted under

Section 248(1) Cr.P.C. The bail bonds of accused/A1 to A3 shall stand cancelled after 8 Six months from today in view of Section 437-A of Cr.P.C. M.O.1 is ordered to be destroy after lapse of appeal time.

Typed to my dictation by the Stenographer, corrected and pronounced by me in open Court, this the 30 th day of December, 2022.

Sd/- Smt. N. Sree Lakshmi

Prl.Junior civil Judge-cum-

Judicial Magistrate of I class,

Srikakulam.

Appendix of Evidence

Witnesses Examined

For Prosecution: For Defence:

P.W.1/26.09.2019: Kilari Umamaheswari @ Devi -None- P.W.2/27.09.2022: K. Lovaraju P.W.3/21.10.2022: K. Ramalaxmi P.W.4/21.10.2022: K. Eswara Rao P.W.5/08.11.2022: Pandranki Shankar P.W.6/15.11.2022: S. Laxmana Rao P.W.7/15.11.2022: N. Srikanth P.W.8/29.11.2022: P. Mohan Satyanarayana P.W.9/29.11.2022: P. Chinnababu P.W.10/06.12.2022: Ch. Krishna Prasad, the then ASI of Police, Srikakulam I Town PS. P.W.11/20.12.2022: M. Ravi, the then ASI of Police, Women PS.

Exhibits Marked

For Prosecution: For Defence:

Ex.P1/12.10.2016: Statement of PW.1 - Nil – Ex.P2/13.10.2016: Section 161 Cr.P.C Statement of P.W.2. Ex.P3/13.10.2016: Section 161 Cr.P.C Statement of P.W.3. Ex.P4/13.10.2016: Section 161 Cr.P.C Statement of P.W.4 Ex.P5/13.10.2016: Section 161 Cr.P.C Statement of P.W.5 Ex.P6/13.10.2016: Signature of PW.6 on Scene observation report. Ex.P7/13.10.2016: Signature of PW.7 on Scene observation report. Ex.P8/13.10.2016: Section 161 Cr.P.C Statement of P.W.8. Ex.P9/13.10.2016: Section 161 Cr.P.C Statement of P.W.10. Ex.P10/12.10.2016: Medical intimation. Ex.P11/12.10.2016: Original First Information Report. Ex.P12/13.10.2016: Rough sketch Ex.P13/13.10.2016: Scene observation report. Ex.P14/01.11.2016: Wound certificate of PW.1

Material Objects Marked

M.O.1 : Stone.

Sd/- Smt. N. Sree Lakshmi

Prl. Junior Civil Judge – Cum - Judl. Magistrate of I Class, Srikakulam.

//True Copy//

Prl. Junior Civil Judge – Cum – Judl. Magistrate of I Class, Srikakulam.

9

Calendar and Judgment

Calendar Cases tried by the Principal Junior Civil Judge – Cum –

Judicial Magistrate of I Class, Srikakulam.

CALENDAR CASE No.1031/2016

Date of offence Prior to12.10.2016 Report 12.10.2016 Surrender of Accused 12.10.2016 Remand of Accused -- Release on bail of Accused 12.10.2016 41-A Cr.P.C notice. Taken on file 30.11.2016 Commencement of trial 14.05.2019 Close of trial 20.12.2022 Sentence or order 30.12.2022

Explanation for the delay : No delay

Name of the complainant:: State represented by Sub Inspector of Police, Women Police Station.

Name of the Accused:

1. Kilari Bhaskararao @ Papinaidu, S/o. late Suryaprakasarao, aged about 38 years, Kapu by caste, Chinna Bondilipuram, Srikakulam Town.

2. Palli Satyavathi @ Malathi, W/o. Sastri @ Seshagiri, aged about 44 years, Kapu by caste, rest do;

3. Palli Seshagiri @ Sastri, S/o. late Chinna, aged about 48 years, Kapu by caste, rest do;

Crime No. 34/2016

Offence Sec.498-A and 324 of IPC Sec.498-A of IPC: Punishment for subjecting a married woman to cruelty. Sec.324 of IPC : Voluntarily causing hurt by dangerous weapon or means

Finding: Not guilty.

Sentence In the result, accused/A1 to A3 are found not guilty for the offence punishable under Sections 498-A, 324 of Indian Penal Code. Accordingly, they are acquitted under Section 248(1) Cr.P.C. The bail bonds of accused/A1 to A3 shall stand cancelled after Six months from today in view of Section 437-A of Cr.P.C. M.O.1 is ordered to be destroy after lapse of appeal time.

Sd/- Smt. N. Sree Lakshmi

Prl. Junior Civil Judge – Cum – Judl. Magistrate of I Class, Srikakulam.

Copy submitted to the Hon’ble I Addl. District Judge, Srikakulam.

//True Copy//

Prl. Junior Civil Judge – Cum – Judl. Magistrate of I Class, Srikakulam.

10

JCC-19/2019, Date:21-08-2020; I-AJMFC/SKLM. - 1 -

IN THE BOARD OF JUVENILE JUSTICE :: SRIKAKULAM.

Present : Smt.N.Sree Lakshmi,

Principal Magistrate,

Juvenile Justice Board, Srikakulam.

Members: 1). Seepana Venkata Rao. 2). Kutukuppala Vybhava Laxmi.

Friday, this the 21 st day of August, 2020.

J.C.C.No.19/2019

This case has come before me on 14-08-2020, for final hearing and disposal in the presence of the Learned Senior Assistant Public Prosecutor for the complainant/State and Sri A.Rambabu, S.Polaiah and P.Raja Rao, Learned Counsels for Juvenile in Conflict with Law and upon hearing on both sides and the matter having been stood over for consideration till this day, this Board delivered the following:

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

a)The Serial No. of the case: JCC.No.19/2019

b)The Date of Offence: 14-05-2019

c)The Name of the Complainant: State represented by the Sub-Inspector of Police, Traffic Police Station, Srikakulam.

d)Juvenile in conflict with Law: XXX

e)The offence complained of: Offence under Section 337 of IPC.

f)The plea of CICL and his: Child in Conflict with Law examination, if any.pleaded not guilty.

The Sub-Inspector of Police, Traffic Police Station Srikakulam filed the Information Report against the Child in Conflict with Law (here-in- after will be referred as CICL, for the sake of brevity) in Crime No.48/2019, for the offence punishable under Section 337 of IPC.

2.The case of Prosecution in brief is that :

On 14-05-2019, at about 05.30pm, when the defacto

Complainant/LW.1/Polumuru Devi, while crossing the road, in order to get Tea & Snacks to Hospital Staff, at that time, the motorcyclist/CICL, who was proceeding from Rythu Bazar towards Day&Night Junction, drove his Scooty bike, bearing Registration No.AP30-AR-8471, in a rash and negligent manner

JCC-19/2019, Date:21-08-2020; I-AJMFC/SKLM. - 2 - and dashed against her, as a result of which, she fell-down on the road and sustained bleeding injury to left side of head, sprain injury to left shoulder, left thumb, scratch injury to right knee, sprain injury to left foot. At that time,

LW.4/P.Chandra Sekhar and LW.5/P.Suresh, who were present there, by virtue of their business, rushed to the spot, rescued and assisted while shifting the injured/LW.1/Polumuru Devi and the injured in 108 ambulance to RIMS

Hospital, Srikakulam.

a)On receipt of statement of injured/LW.1/Polumuru Devi, through

LW.9/B.Govinda Rao, Head Constable-1099, RIMS Outpost, Srikakulam and on it’s basis, LW.10/B.Ganesh, Sub-Inspector of Police, Traffic P.S, Srikakulam, registered a case in Crime No.48/2019 for the offence punishable under

Section 337 of IPC and investigated into.

b)During the course of investigation, LW.10/B.Ganesh, Sub-

Inspector of Police, Traffic P.S, Srikakulam, examined the witnesses and recorded their statements and also visited the Scene of offence, in the presence of mediators i.e., LW’.6 & 7 (LW.6/S.Yugandar and LW.7/V.Srinivasa

Ganesh Prasad), drafted Scene Observation Report and drew Rough Sketch.

Later, LW.10/B.Ganesh, Sub-Inspector of Police, Traffic P.S, Srikakulam, obtained SSC Marks Memorandum of CICL and served notice against the mother of CICL, at Bavaji Nagar, Balaga and took her consent on 20-05-2019.

LW.8/Dr.L.Swapna, Civil Assistant Surgeon, RIMS Hospital, Srikakulam, treated

LW.1/Injured and issued Wound Certificate, opining that the injuries sustained by LW.1/Injured, are Simple in nature. After completion of investigation,

LW.10/B.Ganesh, Sub-Inspector of Police, Traffic P.S, Srikakulam, filed the

Information Report against the CICL, before the Board.

3.The Board took cognizance of the offence punishable under

Section 337 of IPC against the CICL. On appearance of CICL before the

Board, copies of documents were furnished to him, as required under Section 207 of Cr.P.C. The CICL was examined under Section 251 of Cr.P.C and the accusation for the offence under Section 337 of IPC, has been read over and

JCC-19/2019, Date:21-08-2020; I-AJMFC/SKLM. - 3 - explained to him in Telugu, for which, he pleaded not guilty and claimed for inquiry.

4.To prove the guilt of CICL for the alleged offence, the

Prosecution has examined PW’s.1 to 9 and Exs.P1 to P7 were marked through them. The evidence of LW.7/V.Srinivasa Ganesh Prasad, was given-up by the Learned Senior Assistant Public Prosecutor. After closure of the

Prosecution evidence, the CICL was examined under Section 313 of Cr.P.C. by explaining the incriminating evidence appearing against him. He denied it totally and reported no Defence evidence.

5. Heard Arguments on both sides.

6.The learned APP submitted that the Prosecution has examined

PW’s.1 to 9 and got marked Exs.P1 to P7. PW.1 is the injured-cum-defacto- complainant, she deposed about the accident committed by CICL. PW’s.2 & 3 are the husband and daughter of PW.1. They came to know about the accident. PW’s.4 & 7 are the eye-witnesses. They identified CICL before the

Board. PW.5 is the mediator for the Scene Observation. PW.6 is the Medical

Officer. She deposed about issuance of wound certificate to PW1. PW.8 is the

Incharge of RIMS Out-Post. He deposed about recording of statement of PW1.

PW.9 is the investigation Officer. He deposed about registration of case and investigation done by him and filing of Information Report against CICL. The learned APP contended that there is sufficient evidence before the Board to convict CICL for the offence under Section 337 IPC.

7.The learned counsel for CICL contended that there is no sufficient and reliable evidence before the Board to connect CICL for the alleged offence and that CICL was falsely implicated in this case in order to get compensation and that he is entitled for acquittal.

JCC-19/2019, Date:21-08-2020; I-AJMFC/SKLM. - 4 -

8. Now the point for determination is:

Whether the CICL has committed the offence punishable under Section 337 of IPC and Whether the Prosecution has proved the guilty of the CICL, beyond all reasonable doubt?

9.Point:

I have perused the entire evidence and other material available on record. Heard the rival contentions of both sides through video conferencing.

10.The case of the prosecution is that on 14-05-2019, at about 05.30 pm, when PW.1/Polumuru Devi, while crossing the road, in order to get

Tea & Snacks to Hospital Staff, CICL, who was proceeding from Rythu Bazar towards Day&Night, drove his Scooty bike, bearing Registration No.AP30-AR- 8471, in a rash and negligent manner and dashed against her, as a result of which, she fell-down on the road and sustained bleeding injury to left side of her head, sprain injury to left shoulder, left thumb, scratch injury to right knee, sprain injury to left foot and shifted to RIMS Hospital, Srikakulam.

Based on receipt of statement of injured/PW.1, a case was registered in Crime

No.48/2019 for the offence punishable under Section 337 of IPC against CICL.

The contention of the learned defence counsel is total denial and contended that CICL was falsely implicated in this case.

11.To prove the guilt of the CICL for the offence under Section 337 of IPC, the prosecution has to prove that CICL is the driver of the crime vehicle at the time of accident and he drove the crime vehicle in rash and negligent manner and dashed against PW1 while crossing the road and caused simple injuries to PW1.

12. In order to substantiate the case of the prosecution, the prosecution has examined PW’s1 to 9. PW.1/Polumuru Devi is the injured in this case. She deposed about the occurrence of offence that at about 09 months back, at around 05.30 p.m, while she was crossing the road, at Day &

Night Junction, in order to go the Tea stall, situated opposite to the Hospital,

JCC-19/2019, Date:21-08-2020; I-AJMFC/SKLM. - 5 - she was hit by a Scooty and fallen on the ground and went into unconscious stage and later, after regaining her conscious, at about 12.00 a.m, in RIMS

Hospital, she was informed by her husband that an accident was occurred to her at Day&Night Junction and as such, she was admitted in the hospital, by her husband and daughter. She further deposed that she sustained injuries on her head and legs and sustained fracture injuries on her right shoulder.

Later, on the next day, the Police approached her and recorded her statement. Ex.P1 is the statement given by her to the Police. During her

Cross-examination, she admitted that the Day & Night junction is a busy junction and there will be heavy flow of traffic, till Rythu Bazaar and there is a traffic signal, at Day & Night junction and there are police at Rythu Bazaar junction. From the evidence of pW1, it discloses that she didn’t depose anything against CICL and she didn’t identify CICL before the Board.

13.PW.2/P.Govinda and PW.3/P.Bhavani are the husband and daughter of PW.1 and they deposed their evidence, in similar lines of PW.1, in corroboration with her evidence and later, they were examined by the police.

PW.3 identified the CICL in the open Board. On perusal of their evidence, it discloses that they came to the scene after commission of accident. They came to know about the accident. Hence, their evidence is considered to be hearsay which is inadmissible in evidence.

14.PW.4/P.Chandra Sekhar is the person, who run a Tea-stall near to the Accident spot and he rushed to the accident spot and rescued the

PW.1/injured. PW.7/P.Suresh is another person who was present at the scene at the time of the accident. They were cited as eye witnesses to the accident.

They deposed that on 14-05-2019, between 04.30 and 05.00 p.m, they have seen the CICL, hit against the PW.1 from behind, with his red-colour Scooty, while PW.1 was coming out of the hospital. Immediately, PW.1 fallen on the ground and thereby sustained injuries, on her head, right-hand and leg and also sustained fracture injuries on her right shoulder. Immediately, PW4 shifted

JCC-19/2019, Date:21-08-2020; I-AJMFC/SKLM. - 6 - her to the Sanjeevini Hospital and thereafter, she was shifted to the RIMS

Hospital, Srikakulam, in 108 ambulance, with the help of Traffic police. PW7 informed about the accident to the family members of PW1. The witnesses identified the CICL, to be the same person, who hit PW.1, on the day of incident, in the open Board.

15.During their cross-examination, they denied the suggestion that they have identified the CICL, with the help of the police on that day, in the

Board and that they have not seen him, on the day of accident and thereby deposing false, at the instance of PW.1, only for claiming the insurance money from the CICL and that they are deposing at the request of PW.1 to help her.

16.PW.5/S.Yugandar, who is the mediator for scene observation

Report deposed that on 15.05.2019 at about 10.00 am, he was summoned by the traffic police and that he visited the accident spot and thereby the police observed the scene in his presence and drafted the Scene Observation Report and he had signed on it. Ex.P2 is the scene observation report.

17.PW.6/Dr.L.Swapna, Civil Assistant Surgeon, RIMS Hospital,

Srikakulam, deposed that on 14.05.2019, at about 5.50 p.m, she had examined

PW.1 and found the injuries, i.e., Pain at right arm and fore arm, Pain left hand fingers, Pain left ankle joint and Laceration of size 3X1 cm on right temporal region. The x–ray report of C.T brain, shows neuro-parenchyma shows normal and no bony injury. The X-ray of right arm, with right shoulder and right wrist with fore arm and lateral V shows no bony injury. Thus, she had issued the

Wound Certificate of PW.1, opining that the injuries sustained by PW.1, are simple in nature. Ex.P3 is the wound certificate of PW.1, issued by her.

18.PW.8/B.Govinda Rao, Head Constable-1099, RIMS Outpost,

Srikakulam, deposed that on 14-05-2019, he received a medical intimation, at about 05-40 p.m, sent by the Sub-Inspector of Police, Traffic P.S and basing upon the intimation, he approached PW.1 and thereby recorded her statement and thereafter, sent the same to PW.9/Sub-Inspector of Traffic P.S, Srikakulam, on the point of jurisdiction.

JCC-19/2019, Date:21-08-2020; I-AJMFC/SKLM. - 7 -

19.PW.9/B.Ganesh, Sub-Inspector of Police, Traffic P.S,

Srikakulam, is the Investigation Officer. He deposed about registration of case, investigation done by him and filing of Information Report against CICL. He deposed in his cross-examination that PW’s.1 to 4 and 7, did not state the name of the CICL, except vehicle registration number.

20.The CICL is charged for the offence under Section 337 of

IPC. For brevity and better understanding, it is expedient here to extract under

Sections 337 of IPC.

“Section 337: Causing hurt by act endangering life or personal safety of others.- Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which any extend to five hundred rupees, or with both. To substantiate the allegations against the CICL, the prosecution has to prove the charge framed against the accused.

21.After going through the entire evidence available on record, it discloses that PW6 Medical Officer who examined PW1 opined that the injuries are simple in nature and she got exhibited her wound certificate as

P3. On cumulative reading of the oral testimony of PWs1 to 4, 6 and 7 and

Ex.P3, it is clear that PW1 sustained injuries in that accident.

22.There is no serious doubt with regard to scene of offence. PW1 who is injured and direct witnesses categorically stated that the offence took place near Day & Night Junction, Srikakulam and similarly the eye witnesses at the scene examined as PW4 and PW7 stated about the accident. The prosecution also produced scene observation report and exhibited the same as P2. In order to prove Ex.P2, one of its mediator was examined asPW5. He categorically stated about preparation of scene observation report by incorporating all the physical features. PW9 is the investigating officer and he corroborated the evidence of PW5 and stated that immediately after registering the F.I.R, he visited the scene of offence and prepared Ex.P2 in the presence of PW5. He further stated that he has also prepared rough

JCC-19/2019, Date:21-08-2020; I-AJMFC/SKLM. - 8 - sketch at the scene and the same is exhibited as P6 and photographs are exhibited as P7. The above evidence makes ample clear that the accident took place near Day & Night Junction, Srikakulam.

23. Now, the question before this Board is whether CICL was driving the crime vehicle at the time of the accident and if so, whether there is rash and negligence on his part in causing simple injuries to PW1. According to the prosecution, when PW1 was crossing the road, one scooty hit her as a result, she fell down and sustained injuries. Though PW1 has categorically supported the case of the prosecution with regard the accident and involvement of the scooty, she failed to identify the CICL as the driver of the crime vehicle at the time of the accident. It is understood that PW1 is won over by CICL. PW2 who is the husband and PW3 is the daughter of PW1. They came to know about the accident and came to the scene after the accident. Thus, the evidence of

PWs1 to 3 is of no use to the prosecution to connect the CICL with the offence.

24.PW4 and PW7 are cited as direct witnesses to the incident and they identified CICL before the Board but unfortunately they did not speak about the rash and negligence driving of the crime vehicle by CICL. They stated about occurrence of the accident and shifting the injured in an ambulance. PW1 also did not support the case of prosecution so far as identification of CICL concerned. She deposed about involvement of scooty in the accident but she did not speak about person driving the scooty in rash and negligent manner as such her evidence is also of no use.

25.The evidence of PW8 is reliable to the extent of recording of statement of PW1 at RIMS hospital and the evidence of PW9 is reliable to the extent of registration of case, investigation done by him and filing of

Information Report against CICL. Their evidence itself is not sufficient to connect CICL for the alleged without corroboration by other independent witnesses.

JCC-19/2019, Date:21-08-2020; I-AJMFC/SKLM. - 9 -

26.In view of the above facts and circumstances, this court is of considered view that though the prosecution established that PW1 sustained simple injuries caused in road accident near Day & Night Junction, Srikakulam, the prosecution failed to establish that CICL was driving the crime vehicle in rash and negligent manner and dashed PW1. Under these circumstances, this

Board is of the considered opinion that the evidence placed on record by the

Prosecution, is not sufficient to prove the guilt of the CICL and that the

Prosecution has failed to establish the second essential ingredient of the offence punishable under Section 337 of IPC i.e., rash and negligence driving at the time of the accident and as such the benefit of doubt, shall be given in favour of the CICL. Hence, we are of the considered opinion that the

Prosecution has failed to prove the guilt of the CICL, beyond all reasonable doubt and the point is answered accordingly.

27.In the result, the CICL is found not guilty, for the offence punishable under Section 337 of IPC. Hence, the CICL is SET AT LIBERTY, under Section 255(1) of Cr.P.C, for the said offence. The Parental bond and

Bail Bonds of the CICL, shall stands cancel, after lapse of six months in view of Section 437-A of Cr.P.C.

Typed to my dictation by the Stenographer, corrected, signed and

pronounced by me, in open Board, on this the 21st day of August, 2020.

Sd/- Smt.N.Sree Lakshmi,

Sd/- . PRINCIPAL MAGISTRATE,

MEMBERS. JUVENILE JUSTICE BOARD,

SRIKAKULAM.

Appendix of Evidence

Witnesses Examined

For Prosecution:For Defence: PW.1 : Polumuru Devi None. PW.2 : P.Govinda PW.3 : P.Bhavani PW.4 : P.Chandra Sekhar PW.5 : S.Yugandar PW.6 : Dr.L.Swapna, Civil Assistant Surgeon, RIMS Hospital, Srikakulam PW.7 : P.Suresh PW.8 : B.Govinda Rao, Head Constable-1099, RIMS Outpost, Srikakulam PW.9 : B.Ganesh, Sub-Inspector of Police, Traffic P.S, Srikakulam.

JCC-19/2019, Date:21-08-2020; I-AJMFC/SKLM. - 10 -

Exhibits Marked

For Prosecution:

Ex.P1: Statement of PW.1 given to Police, dt.14-05-2019. Ex.P2: Scene Observation Report, dt.15-05-2019. Ex.P3: Wound Certificate of PW.1, dt.14-05-2019. Ex.P4: Medical Intimation, dt.14-05-2019. Ex.P5: First Information Report in Cr.No.48/2019, dt.14-05-2019. Ex.P6: Rough Sketch, dt.15-05-2019. Ex.P7: 4 (Four) Photographs, along with CD.

For Defence: Nil.

Material Objects Marked : Nil.

Sd/- Smt.N.Sree Lakshmi,

Sd/- . PRINCIPAL MAGISTRATE,

MEMBERS. JUVENILE JUSTICE BOARD,

SRIKAKULAM.

// True Copy //

Principal Magistrate,

Juvenile Justice Board, Srikakulam.

CC:775/2014, Date:21.09.2020, I-AJMFC/SKLM. - 1 -

IN THE COURT OF I-ADDL. JUDICIAL MAGISTRATE OF I CLASS ::

SRIKAKULAM.

Present : Smt. N.Sree Lakshmi, I-Addl. Judicial Magistrate of I Class :: Srikakulam.

Monday, this the 21st day of September, 2020.

Calendar Case No.775/2014

a)The Serial No. of the case: CC.No.775/2014

b)The Date of Offence: 26-05-2014

c)The Name of the Complainant: Andhavarapu LaxmanaRao, S/o.Late Satyanarayana, Hindu, Aged 43 years, Business, Resident of Plot No.9, Chinna Mandala Veedhi, Srikakulam Town and District.

d)Name of the Accused: Lakkoju Suresh Kumar, S/o.Late Dasaradha Rao, Aged 38 Years, Hindu, Dasaradha Jewelleries, Opposite to Balaji Bhavan, Kollavari Veedhi, Srikakulam Town and District, within the limits of Srikakulam I-Town Police Station.

e)The offence complained of: Punishable under Section 138 of Negotiable Instruments Act.

f)The plea of Accused and his: Pleaded not guilty examination, if any

This case has come before me for final hearing on 14-09-2020, in the presence of Sri Ch.Srikanth and V.Srinivasa Rao, Learned Counsels for Complainant and Sri P.Anjani Kumar and Sri K.Sreerama Murthy, Learned Counsels for the Accused and upon hearing the arguments of both sides and on perusal of all relevant records and the matter having been stood over for consideration, till this day, this Court has delivered the following

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

The Complainant has filed this complaint under Section 200 of Cr.P.C against the Accused, alleging for the offence under Section 138 of Negotiable

Instruments Act.

2.The contents of complaint in brief are as follows :-

The Complainant filed a complaint against the Accused alleging that

Accused borrowed an amount of Rs.6,00,000/- (Rupees Six Lakhs only), on 20.04.2013, and executed a Promissory Note, in favour of the Complainant

CC:775/2014, Date:21.09.2020, I-AJMFC/SKLM. - 2 - on the same day after receiving consideration, agreeing to repay the said amount, with interest @ 12% per annum, to the Complainant or his Order, on demand. Thereafter, the Complainant demanded him personally to repay the amount, but the accused gave evasive reply, on that he placed the matter

before the elders. Then, the Accused issued a cheque for Rs.6,00,000/-

(Rupees six Lakhs only), dt.26.05.2014, bearing No.128439, drawn on Karur

Vysya Bank, Srikakulam Branch, towards part satisfaction of debt amount.

The Complainant deposited the said cheque for collection with his banker, i.e., ING Vysya Bank, Srikakulam on 06.06.2014 but the Banker of the

Accused returned the said cheque with an endorsement “FUNDS

INSUFFICIENT”, vide bank memo, dt.06.06.2014. Based upon that, the

Complainant got issued a Registered lawyer's notice, dt.16.06.2014, to the

Accused, through registered post and the accused received the same on 20.06.2014. But, the Accused neither gave reply, nor paid the amount.

Hence, the Complainant filed this complaint.

03. On consideration of sworn affidavit and other material, cognizance has been taken for the offence under Section 138 of Negotiable

Instruments Act, against the accused and registered as C.C.No.775/2014. On appearance of the accused, copies have been furnished to him under Section 207 Cr.P.C. The accused has been examined under Section 251 Cr.P.C., for the offence under Section 138 of Negotiable Instruments Act, the accused pleaded not guilty and claimed to be tried.

04.During the course of trial, the Complainant himself was examined as PW.1 and also examined one of the elders as PW.2 and got marked Exs.P1 to P5. After closure of Complainant-side evidence, the accused was examined under Section 313 Cr.P.C., he denied the incriminating material and stated that he has defence evidence. Later, the Learned Counsel for accused reported no defence evidence. Defence evidence was closed and the matter was posted for arguments.

CC:775/2014, Date:21.09.2020, I-AJMFC/SKLM. - 3 -

05.Heard Learned Counsel for Complainant as well as the Learned

Counsel for accused through Whatsapp group video call. The Learned

Counsel for accused also filed written arguments.

06. Now, the points for determination are :

1)Whether the Complainant has proved the ingredients of the offence under Section 138 of N.I.Act, against the accused, beyond reasonable doubt and whether the accused is liable for punishment under section 138 of N.I.Act ?

2) Whether the accused has rebutted the presumption under section 139 of Negotiable Instruments Act, even by preponderance of probabilities before the Court?

3) To what relief?

07. Points No. 1 and 2:- I have the perused the entire evidence and other material available on record.

08. The grievance of the Complainant is that the accused borrowed an amount of Rs.6,00,000/- and executed a promissory note on 20.04.2013, agreeing to pay back the amount with interest at the rate of 12% per annum.

After persistent demands made by the Complainant towards discharge of his amount, the accused issued a cheque for Rs.6,00,000/-, dt.26.05.2014, drawn on Karur Vysya Bank, Srikakulam, bearing No.128439, in favour of the

Complainant and also promised to pay the balance principal and interest within a short time. The Complainant presented the said cheque for collection on 06.06.2014, through his banker viz., ING Vysya Bank,

Srikakulam, for encashment, but the said cheque was returned unpaid on 06.06.2014, with an endorsement “Funds Insufficient”. The Complainant got issued registered lawyer's notice, dated 16.06.2014, to the accused calling upon him to pay the amount due, under the cheque within 15 days from the date of receipt and the accused received the same on 20.06.2014, but he didn’t pay the amount. It is the case of the Complainant that, the accused fully aware of the issuance of cheque in order to clear the debt, but was evaded to honour the same, which attracts an offence punishable under

Section 138 of N.I Act. Hence, the accused is liable for punishment under

Section 138 of N.I.Act.

CC:775/2014, Date:21.09.2020, I-AJMFC/SKLM. - 4 -

09. The Learned Counsel for accused contended that the

Complainant failed to file the documentary proof to prove that the accused borrowed the debt on 20.04.2013. He contended that PW.2 is an interested witness as he is the friend of PW.1. He further contended that he issued

Ex.P1/Cheque for collateral purpose for the debt of Rs.2,00,000/- and he cleared the amount along with interest and demanded PW.1 to return the documents, but PW.1 informed that they were misplaced and later, he filed suits against the brother and mother of the accused. He further contended there were several contradictions and omissions in the entire evidence and they are fatal to the case of the Complainant. Therefore, the accused has rebutted the presumption under Sec.139 of Negotiable Instruments Act and is entitled for acquittal.

10. In an offence under Section 138 of the Negotiable Instruments

Act, once the Complainant has proved the drawing of the cheque, presentation of the cheque into the Bank, Return of the cheque unpaid by the drawer bank, giving notice in writing to the drawer of the cheque demanding the payment of the cheque amount and failure of the drawer to make payment within 15 days of receipt of the notice, the statutory presumptions under Section 118 and 139 of Negotiable Instruments Act will arise in favour of the Complainant. Under Section 118 (a) of the Negotiable

Instruments Act, the Court shall presume that the negotiable instrument has been drawn for consideration. Under Section 139 of the Negotiable

Instruments Act, the Court shall presume that the holder of the cheque received the cheque for the discharge, in whole or in part, of any debt or other liability. The meaning and expression 'shall presume' has been explained in Section 4 of Indian Evidence Act. Wherever it is provided by any

Act that the Court 'shall presume' a fact, it shall regard such fact as proved unless and until it is disproved. Thus, the presumptions under Section 118 and 139 of Negotiable Instruments Act are rebuttable presumptions. The burden of proof to rebut the said presumptions is upon the accused.

CC:775/2014, Date:21.09.2020, I-AJMFC/SKLM. - 5 -

11. In the present case, the Complainant himself is examined as PW.1 and reiterated the contents of complaint in his chief-affidavit. To prove the issuance of cheque, he got exhibited the disputed cheque bearing No.128439

dt. 26.05.2014 as Ex.P1. To prove the presentation and return of the cheque

by the drawer bank unpaid, he got exhibited the Bank memo, dt.06.06.2014 as Ex.P2. For making statutory demand in writing as required under Section 138 of Negotiable Instruments Act, he got exhibited the office copy of registered lawyer's notice, dated 16.06.2014 as Ex.P.3 and postal receipt as

Ex.P4. In proof of receipt of the said notice by the accused, he got exhibited the postal acknowledgement as Ex.P5. The Complainant also got examined

PW.2 who was present at the time of execution of promissory note and issuance of cheque and return of promissory note to the accused. PW.2 filed his chief-affidavit by supporting the evidence of PW.1. The Learned Counsel

for accused cross-examined PWs.1 and 2 at length, but nothing was elicited

in favour of the accused, except mere suggestions, which were denied by

PWs.1 and 2.

12.The Learned Counsel for Complainant contended that the accused is not disputing about the signature on the cheque, but contending that the Complainant filed false complaint against the accused by keeping

Ex.P1, which was given as collateral security at the time of borrowing of

Rs.2,00,000/-, which is to be proved by the Complainant. He further contended that the Complainant has examined himself as PW.1 and also examined PW.2 and got marked the original cheque for Rs.6,00,000/-, as

Ex.P1 to prove the genuineness and legally enforceable debt between the

Complainant and the accused.

13.In addition to his contention, the Learned Counsel for

Complainant has relied on the decisions reported in

1. Aps Forex Services Pvt Ltd Vs Shakti International Fashion

Cri.Appeal No. 271/2020 decided on 14.02.2020

CC:775/2014, Date:21.09.2020, I-AJMFC/SKLM. - 6 -

2. Bir Singh Vs Mukesh Kumar

Cri. Appeal Nos.230-231 of 2019 decided on 06.02.2019 where in the principles laid down in both cases by Hon’ble Supreme

Court is thus “Section 139 of the Act is an example of reverse onus clause and therefore, once the issuance of the cheque has been admitted and even the signature on the cheque has been admitted, there is always a presumption in favour of the Complainant that there exists legally enforceable debt or liability and thereafter it is for the accused to rebut such presumption by leading evidence.”

I have gone through the ratio laid down in the above decisions. There is no dispute with regard to settled legal propositions of Law in above decisions.

14. Where as the Learned Counsel for accused contended that the

Complainant failed to file original promissory note before the court to prove that there exists legally enforceable debt between the Complainant and the accused. He submitted that the family members of the accused jointly borrowed Rs.2,00,000/- from the Complainant and the accused issued blank cheque (Ex.P1) and the brother of the accused issued blank signed promissory note and the mother of the accused signed on blank NJ stamps worth of Rs.100/- and the accused family paid the entire amount along with interest but the Complainant failed to return the said documents by informing that they were misplaced and later, he filed suit for recovery of amount in

O.S.No.43/2014, on the file of Hon’ble IV Additional District Court, Srikakulam,

against the brother of the accused and he filed suit for specific performance in O.S.No.315/2015 on the file of Hon’ble Principal Senior Civil Judge’s Court,

Srikakulam, against the mother of the accused.

15.In an offence under Section 138 of Negotiable Instruments Act, the Complainant has to prove the essential facts of drawing of the cheque by

CC:775/2014, Date:21.09.2020, I-AJMFC/SKLM. - 7 - the accused, presentation of the said cheque into the Bank, return of cheque unpaid by the drawer bank, giving notice in writing to the drawer of the cheque demanding the payment of cheque amount and failure of drawer of the cheque to pay the cheque amount within the statutory period of 15 days.

Once the Complainant has proved the above ingredients, under Section 139 of Negotiable Instruments Act the presumption will arise in favour of

Complainant that the cheque has been issued for discharge of a debt and it is

for the accused to rebut the said statutory presumption. The Hon'ble

Supreme Court in Hiten P. Dalal v. Bratindranath Banerjee (AIR 2001

SC 3897) has mandated that, it is obligatory on the court to raise the

presumption under Section 139 of Negotiable Instruments Act in every case where the factual basis for the raising of the presumption had been established.

16.In the present case, the accused is taking a stand that though the accused paid the debt amount, the Complainant filed false case against the accused by keeping Ex.P1 which was given for collateral purpose. Further, the accused contended that the Complainant failed to file original promissory note before the court. Once the accused admitted transaction between them and signature on the disputed cheque/Ex.P1, non filing of promissory note itself is not fatal to the case of the Complainant. The accused further contended that he cleared the amount but the Complainant filed false case against him with the help of PW.2 who is an interested witness. However, he failed to adduce acceptable evidence before the court to prove his contention. From the submissions made by learned defence counsel, it is clear that there were some financial transactions between the accused and his family members and the Complainant, further the Complainant also filed suits against the brother and mother of the accused.

17.In an offence under Section 138 of the Act once presumption under Section 139 of the Act is raised by the Court in favour of the

CC:775/2014, Date:21.09.2020, I-AJMFC/SKLM. - 8 - Complainant, the burden will be upon the accused to rebut the said presumption. What is required to be established by the accused in order to rebut the presumption is different from one case to other under given circumstances. Mere plausible explanation is not sufficient and it must be more than plausible explanation by way of rebuttal evidence. The rebuttal evidence adduced by the accused must be probable and capable of being accepted by the Court. However the accused failed to explain the steps taken by him to take return of alleged promissory note and alleged cheque issued by them after clearing alleged debt of Rs.2,00,000/-. Therefore, the contention of the Learned Counsel for Complainant is sustainable.

18. In an offence under Section 138 of Negotiable Instruments Act, in view of presumption under Section 139 of the Act, the burden will be upon the accused to prove the asserted fact. Hence the burden is upon the accused to adduce positive evidence to probablise the asserted fact. He cannot simply place the onus on the Complainant to adduce such evidence which is against his case. Further the Learned Counsel for Complainant contended that, there is no suggestion in the cross examination of PW1 by the learned defence counsel regarding the issuance of cheque , no specific defence taken by the accused to rebut the presumptions under Section 139 of N I Act.

19. In present case, since the Complainant has proved the essential ingredients of the offence under Section 138 of Negotiable Instruments Act with respect to the drawing of cheque, presentation of cheque into the bank, returning of cheque unpaid by the drawer bank for the reason ' funds insufficient', giving notice in writing to the accused, demanding the payment of cheque amount and failure of the accused to make payment of the demanded cheque amount within the statutory period of 15 days, the presumption under Section 139 of Negotiable Instruments Act is very much available to the accused that the cheque has been issued for the discharge of debt or liability. The accused has not been able to rebut the said statutory

CC:775/2014, Date:21.09.2020, I-AJMFC/SKLM. - 9 - presumption by adducing acceptable evidence or by eliciting anything against the case of Complainant in the cross-examination of P.Ws.1 and 2 even by preponderance of probability. Therefore, I hold that the

Complainant has proved the guilty of the accused for the offence under

Section 138 of Negotiable Instruments Act beyond reasonable doubt and the accused is liable for punishment under Section 138 of Negotiable Instruments

Act.

20. POINT No.3: In the result, the Accused is found guilty for the offence under Section 138 of Negotiable Instruments Act. Accordingly, he is convicted under Section 255 (2) of Cr.P.C.

Typed by me in my laptop, corrected and pronounced by me in open Court, on this the 21st day of September, 2020.

Sd/- Smt.N.Sree Lakshmi,

I-ADDL. JUDL. MAGISTRATE OF I CLASS,

SRIKAKULAM.

The Accused is communicated through Whatsapp Video Call and questioned with regard to quantum of sentence. He stated that he got wife and two small children and old aged mother and prayed mercy. In view of the facts and circumstances of the case, I am not inclined to invoke the provisions of P.O. Act. Keeping in view the nature of the offence and the circumstances stated by the accused, I deem it appropriate to sentence the accused with rigorous imprisonment. Accordingly, the accused is sentenced to suffer Rigorous Imprisonment for a period of Six months.

Accused is appraised of his right to prefer appeal against the judgment before the Hon’ble District Court and to get the free Legal Aid from the Hon’ble DLSA, in preferring the appeal, if he has no means to engage

Counsel. A free copy of Judgment is furnished to the accused immediately after pronouncement of Judgment and obtained acknowledgment therewith.

Typed by me in my Laptop, corrected and pronounced by me in the open Court, on this the 21st day of September, 2020.

Sd/- Smt.N.Sree Lakshmi,

I-ADDL. JUDL. MAGISTRATE OF I CLASS,

SRIKAKULAM.

CC:775/2014, Date:21.09.2020, I-AJMFC/SKLM. - 10 -

Appendix of Evidence

Witnesses Examined

For Complainant :For Accused :

PW.1: Andhavarapu Laxmanarao- Nil - PW.2: Lukalapu Babu Srinivas Kumar

Exhibits Marked

For Complainant :

Ex.P1 : Original Cheque bearing No.128439, Dt:26-05-2014 of Karur Vysya Bank Limited, Srikakulam, for Rs.6,00,000/- Ex.P2 : Bank Endorsement Memo, Dt:06-06-2014. Ex.P3 : Office Copy of the Lawyer's notice, dt.16-06-2014, issued against the Accused. Ex.P4 : Postal Receipt, dt.16-06-2014. Ex.P5 : Postal Acknowledgment, dt.16-06-2014.

For Accused: -Nil-.

Sd/- Smt.N.Sree Lakshmi,

I-ADDL. JUDL. MAGISTRATE OF I CLASS,

SRIKAKULAM.

// True Copy //

I-Addl. Judicial Magistrate of Ist Class, Srikakulam.

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IN THE COURT OF I ADDITIONAL JUNIOR CIVIL JUDGE-CUM-JUDICIAL

MAGISTRATE OF I CLASS: SRIKAKULAM

PRESENT:- Smt.N.Sree Lakshmi,

Principal Junior Civil Judge-cum-

Judicial Magistrate of I Class,

FAC. I Additional Judicial Magistrate of I Class, Srikakulam.

Thursday, the 15th day of September, 2022

C.C. No.535/2020

Between: State Represented by the Inspector of Police, Srikakulam II Town P.S.

.…Complainant

And

Kuna Syama Sundararao, S/o. Suryanarayana, aged about 38 years, Kalinga by caste, Kesavaraopeta, Etcherla Mandal, Srikakulam District. Driver of Mahindra Alfa Auto bearing No. AP-30X-6966. … Accused

This case is coming on 08-09-2022 for final hearing before me in the presence of Learned Assistant Public Prosecutor on behalf of Complainant State represented by the police, and of Sri K. Ammi Naidu, Learned Advocate of accused and having stood over for consideration till this day, the Court delivered the following:

J U D G M E N T

1.The Inspector of Police, Srikakulam II Town PS, filed charge sheet against the accused for the offences under Sections 447, 379 of Indian Penal Code and Section 3 of

Prevention of Damage to Public Property Act-1984 with the following allegations:

2.On 18.06.2020 morning, on receipt of reliable information, Chaganti Surabhalinga

Prabhanjan Kumar along with Kella Trinadharao are in tracking duty for illegal transportation of sand at closed ‘Anna Canteen’ near 7th road Junction, Srikakulam at about 7.30 hrs, noticed the marginally noted accused being the driver of Mahindra Alfa

Auto bearing No. AP-30X-6966 while transporting the sand bags with his auto from

Gujarathipeta side to 7th road junction side. The accused was apprehended and seized 20 bags of (cement bags) sand, each containing 30 kgs., under the cover of occurrence report, as no body come forward to act as mediators. The accused admitted that he is in the habit of committing theft of sand from Nagavali river bed Srikakulam, transporting the same to Srikakulam Town by his auto for the purpose of sales for higher prices for getting illegal monitoring benefits without having any authorization or permit from the

Government.

2 The S.E.B SI with the assistance of S.E.B, PC brought the apprehended accused along with seized property and produced before P.V. Ramana, the Inspector of Police,

Srikakulam II Town PS on 18.06.2020 at 10.30 hrs, along with the occurrence report.

Basing on the occurrence report, a case in Cr.No.1105/2020 for the offence under Sections 447, 379 of IPC and Section 3 of PDPP Act 1984 of Srikakulam II Town

PS was registered by P.V. Ramana, the Inspector of Police, Srikakulam II Town PS and endorsed to P. Raghunadharao, Sub Inspector of Police, Srikakulam II Town PS to take up investigation and investigated into and after completion of investigation filed charge sheet.

3.After perusal of the record, the case was taken on file for the offence under

Sections 447, 379 of IPC and Section 3 of PDPP Act 1984 against the accused.

4. On appearance of accused, copies have been furnished to him under Section 207

Cr.P.C. Accused was examined under Section 239 Cr.P.C., The charge under Section 239 Cr.P.C., was framed for the offence under Sections 447, 379 of IPC and Section 3 of PDPP Act 1984 against accused and the same is read over and explained to him in

Telugu, for which, he denied the offence and pleaded not guilty and claimed to be tried.

Hence, the trial.

5. During the course of trial, the prosecution has examined P.W.1 to P.W.4 and got

Ex.P1 to Ex.P3. The learned APP has given up the evidence of LWs. 2 and 4.

6.After closer of prosecution evidence, the accused was examined under Section 313 of Cr.P.C and explained the incriminating material for which he denied the incriminating material levelled against him in the prosecution witnesses and reported no defence.

7. Heard the arguments of learned Assistant Public Prosecutor and learned counsel

for accused.

8. The learned APP submitted that the prosecution has examined P.Ws.1 to 4 and got marked Exs.P1 to P3. PW.1 is SI of Police, he deposed about offence committed by the accused and preparation of occurrence report. PW.2 is the eye-witness. He supported the case of the prosecution. P.Ws.3 and 4 are Investigation Officers, they have deposed about registration case, investigation done by them and filing of charge sheet against the accused. P.Ws.1 to 4 supported the case of the prosecution. Hence, 3 the prosecution proved the guilt of the accused for offence levelled against him and that accused is liable for conviction.

9. The learned counsel for accused submitted that PW.1 foisted false case against the accused only for statistical purpose and that PW.2 is a planted witness and the evidence of P.Ws.1 to 4 is not reliable. Hence, the prosecution failed to prove the guilt of the accused for the offence levelled against him and that the accused is entitled for acquittal.

10.Now, the point for determination is: -

Whether the prosecution has proved the guilt of accused for the offence under Sections 447, 379 of IPC and Section 3 of PDPP Act 1984 beyond all reasonable doubt?

11. Point:

I have perused the entire evidence and other material available on record. It is the case of the prosecution that accused criminally trespassed into the Nagavali River

Bed with an intention to commit an offence and caused loss to the Government and they also committed theft of sand from the river bed and damaged the public property and the accused was caught by P.W.1.

12.It is the case of defence that accused did not commit any offence and a false case was filed against him due to pressure from higher authorities for statistical purpose and he was falsely implicated in this case.

13.Now, to prove the offences under Sections 447 and 379 of Indian Penal Code and Section 3(ii) (d) of Prevention of Damage to Public Property Act, the prosecution must prove :- * that accused criminally trespassed into the River Bed with an intention to commit an offence.

* That accused committed theft of sand from the river bed.

* That accused committed acts of mischief by damaging the River Bed belonging to the Government.

14.Now, to prove the offence under Sections 447 and 379 of Indian Penal Code and

Section 3(ii) (d) of Prevention of Damage to Public Property Act, the prosecution must prove that accused criminally trespassed into the Nagavali River Bed belonging to the

Government with an intent to commit an offence and caused loss to the Government and that accused committed theft of sand from the river bed and damaged public property.

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15. During the course of trial, the prosecution has examined P.Ws.1 to 4. PW.1 is

Sub Inspector of Police, he deposed in his evidence that on 18.06.2020 at 7.30 am., while he was conducting route watch at 7th road junction of Srikakulam Town near Anna

Canteen towards YSR Kalyanamandapam road, they noticed one auto bearing No. AP- 30X-6966 on suspicion they stopped the auto and found 20 cement bags filled with sand each bag about 30 kgs of sand totally 600 kgs., of sand transporting in his auto. On enquiry, the accused revealed his name and address and stated that the accused himself loaded the sand at Nagavali River to sell at Srikakualm Town for higher prices who are required. He further deposed that the driver of auto did not produce any documents for transportation of sand and also not produced the auto documents. On that, they seized the auto along with sand and arrested the auto driver. He further deposed that he tried to secure mediators but invain. Later, he drafted occurrence report at scene of offence and handed over auto along with sand and accused to II Town

Police Station, Srikakulam for necessary action. During his cross examination, he deposed that he did not ask any person at the scene of offence to act as mediator. He admitted that he did not secure any mediator at the scene of offence from SEB, Station,

Srikakulam.

16.From the evidence of PW.1, it discloses that PW.1 did not identify the accused as auto driver who was arrested on the date of the offence. Further PW.1 clearly admitted in his cross examination that he did not ask anyone to act as mediator and also he did not secure mediators from SEB Police Station.

17.The prosecution has examined PW.2 as eye-witness to the offence committed by the accused. PW.2 has deposed in his evidence that the police arrested the accused and seized the sand in his presence and he identified the accused in the open court. As per the evidence of PW.1, he did not secure any mediator at the scene of offence.

Whereas PW.2 deposed that he was present at the time of arrest of the accused and seizure of sand from the accused. Therefore it amounts to inconsistency and it creates every suspicion to the court with regard to trust worthiness of evidence of PWs.1 and 2.

18.P.Ws.3 and 4 are investigation officers. Their evidence is reliable only to the extent of registration of case, investigation done by them and filing of charge sheet against the accused.

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19.After going through the entire evidence available on record. PW.1 though deposed before the court that he seized sand bags and auto at the scene of offence and handed over to II Town Police Station, P.Ws.3 and 4 filed Form-60 in this case to prove the seizure of auto bearing No. AP-30X6966. However, the prosecution didn’t take any steps to got mark the crime vehicle in evidence for the best reasons known to them.

20.In the cross examination of P.W 1 he admitted that when they reached the Scene

Of Offence only the auto of accused was present and there are persons on the road near the Scene Of Offence. So, it shows that only the auto was present at the Scene Of

Offence when they went to the Scene Of Offence. P.W1 admitted that he did not secure any mediators near the Scene Of Offence. So, when P.W1 admitted that there are persons on the road near the Scene Of Offence and deposing that he did not secure any mediators near the Scene Of Offence and when no written notices were issued by

P.W.1 to any persons to act mediators, it shows that the P.W.1 did not secure any mediators for the arrest of accused and seizure of auto and sand from accused though available near the scene of offense. So, it shows that they did not follow the procedure prescribed under Section 100 (4) Code of Criminal Procedure, where in it mandates that “before making search the officer about to make it shall call upon two or more independent and respectable persons of the locality in which, the place is to be searched to attend and witness the search and may issue an order in writing to them” and Section 100(5) envisages that “the search shall be made in their presence and the list of things seized shall be prepared by the officer and signed by such witnesses” and

Section 100(7) shows that “a copy of the list of things seized shall be given to the persons from whom the property is seized”. But, there is no evidence on record to show that P.W.1 and his staff followed the procedure prescribed under Sections 100 (4), (5) and (7) while arresting the accused and seizing the sand and tractor from them.

Admittedly, the scene of offense is near seven road junction, but P.W.1 did not issue any written summons to any witnesses to act as mediators for the seizure of auto with sand from accused, So, under the above circumstances the evidence of P.Ws 1, and 3 and 4 cannot be believed to be trustworthy as they failed to comply with the mandatory provisions under Sections 100 (4), (5) and (7) of code of Criminal Procedure at the time of arrest of accused seizure of auto and sand from him. So, it creates a doubt over the 6 evidence of P.W.1 who is police witness with respect to the arrest of accused and seizure of auto and sand from him.

21.Moreover, P.W1 admitted that they received orders from the Government to book cases for transporting the sand. It is the specific case of defence that the present case was filed against him for statistical purpose. So, when P.Ws 1, 3 and 4 did not follow the mandatory procedure under Section 100 of Code of Criminal Procedure for the arrest of accused and seizure of auto and sand from him and when P.W1 admitted that they received orders from the Government to book cases for transporting of sand, it probablizes that case of defence that the present case was filed against them for statistical purpose. So, as can be seen from the evidence of P.Ws 1 to 4, it does not show that accused trespassed into the Government land and caused loss to the

Government. Further, it is the case of prosecution that the accused committed theft of sand, but no sand was produced before the court. There is also no evidence to show as to what happened to the sand alleged to be seized by P.W.1. So, when the sand was not produced before the court and auto was not marked, it shows that no case property was produced before the court by the prosecution to show that accused committed theft of any sand. Hence, it cannot be said that accused has committed any theft of sand from the River Bed and that the accused damaged any public property as alleged by the prosecution. Hence, in the above circumstances, it creates a reasonable doubt over the case of prosecution whether really P.W.1 and other staff arrested the accused and seized the sand along with Auto from him, as they are only police officers and they did not secure any independent mediators, though available near the scene of offense.

22.Hence, it is held that the evidence of P.Ws.1 to 4 cannot be believed and accepted to be true as P.Ws 1,2 and 4 failed to follow the mandatory procedure prescribed under law for arrest of accused and seizure of case property from him. So, when the evidence of P.Ws.1 to 4 is held to be not trustworthy, and when the alleged seizure of sand and auto from accused was not made according to the procedure prescribed under law and when the sand said to be committed theft by the accused was not produced before the court, it creates a reasonable doubt over the case of prosecution and hence, it is held that prosecution failed to prove the necessary ingredients for the offences punishable Under Sections 447 and 379 of Indian Penal 7 Code and Section 3(ii) (d) of Prevention of Damage to Public Property Act against accused beyond all reasonable doubt. Hence, accused is entitled for benefit of doubt and liable to be acquitted. Accordingly, the point is answered.

23.In the result, the Accused is found not guilty for the offence punishable under

Sections 447, 379 of IPC and Section 3 of PDPP Act 1984. Accordingly, he is acquitted U/Sec.248(1) Cr.P.C. The bail bonds of the accused shall stand cancelled after six months from today in view of Section 437-A of Cr.P.C. The unmarked property i.e., Auto bearing No.AP 30 X 6966 which was given to accused for interim custody as per order in Crl.M.P.No.549/2020 dt.09.07.2020 shall holds good after lapse of appeal time.

Typed to my dictation to my Stenographer Grade-III, corrected, signed and

pronounced by me in the open Court, on this the 15 th day of September. 2022.

Sd/- Smt. N. Sree Lakshmi

Prl.Junior civil Judge-cum-

Judicial Magistrate of I Class, Srikakulam.

FAC. I Additional Judicial Magistrate of I Class,

Srikakulam.

Appendix of Evidence

Witnesses Examined

For Prosecution:

P.W.1/21.01.2021: Ch. S.L.P. Kumar, SI in Special Enforcement Bureau (Excise) PS, Srikakulam. P.W.2/03.02.2021: Koda Seetharam. P.W.3/21.06.2022: P. Raghunadharao, the then SI of Police, II Town PS, Srikakulam.

P.W.4/29.06.2022: P. V. Ramana, the then CI of Police, II Town PS, Srikakulam.

For Defence: -None-

Exhibits Marked

For Prosecution: For Defence

Ex.P.1: 18.06.2020: Occurrence report. - Nil - Ex.P.2: 18.06.2020: Rough sketch. Ex.P.3: 18.06.2020: Original First Information Report.

Material Objects Marked : -Nil-

Sd/- Smt. N. Sree Lakshmi

Prl.Junior civil Judge-cum-

Judicial Magistrate of I class, Srikakulam.

FAC. I Additional Judicial Magistrate of I Class, Srikakulam.

//True Copy//

Prl. Junior civil Judge-cum-Judicial Magistrate of I class, Srikakulam, FAC. I Additional Judicial Magistrate of I Class, Srikakulam.