Sri P. Bhaskar Rao

1 C.C.NO.1920/2019 C.M.M Court, Visakhapatnam

IN THE COURT OF THE CHIEF METROPOLITAN MAGISTRATE,

VISAKHAPATNAM.

Present: Sri P.BHASKARA RAO,

Chief Metropolitan Magistrate,

Visakhapatnam

Wednesday, the 23 rd day of June 2021

C.C.NO.1920/19

This case coming on 22-06-2021 for fnal hearing before me in the presence of Sri G.Eswara Prasad, Advocate for the complainant and of Sri

S.Appa Rao, Advocate for the accused and the matter having stood over till this day for consideration and the Court delivered the following:

JUDGMENT

a.The Serial No. of the case:C.C.No.1920/2019 b.The date of ofence :10-06-2018 c.The name of the complainant:Pilla Srinivasa Rao, S/o.Venkateswara Rao, Hindu, aged 45 years, residing at D.No.44-30-16/15 (5), Port Quarters,Type-II, S.F. 602, Block NO.59, Salagramapuram, Visakhapatnam d.The name of the accused:Gantyada Eswara Rao, S/o.Satya Rao, Hindu, residing at D.No.36-53-16/1, Kothavada veedhi, Reddy Kancharapalem, Visakhapatnam.

e.The ofence complained of:Under Sections 138 and 142 of Negotiable Instruments Act f.The plea of the accused &:When examined under Section their examination, if any251 of Cr.P.C, accused pleaded not guilty. When examined under Section 313 of Cr.P.C, accused denied the incriminating material. g.Final order

1. The complaint fled by the complainant under Sections 138 of

Negotiable Instruments Act against sole accused.

2. The brief facts of the complaint allegations is as follows:

(i) The complainant submits that accused along with his wife Gantyada

Himabindu have jointly borrowed a sum of Rs.2,00,000/- (Rupees two lakhs 2 C.C.NO.1920/2019 C.M.M Court, Visakhapatnam only) from the complainant for the purpose of their family expenses and also to discharge their debts and they had jointly executed a demand promissory note dt.10.06.2018 in favour of the complainant. They agreed to pay the amount along with interest @ 24% p.a., either to the complainant or to his order on demand. The complainant demanded the accused to discharge the pronote debt and thereupon the accused and his wife issued two separate cheques in favour of the complainant for an amount of Rs.1,00,000/- each on 5.11.2018 drawn on Karnataka Bank Limited, Gopalapatnam branch,

Visakhapatnam. The complainant presented the said cheques for collection through Andhra Bank, Port Branch, Visakhapatnam but the said cheques were returned with an endorsement “kindly contact drawer/drawee bank and present again” vide memo dt.6.10.2018. The complainant got issued a sttautory notice dt.15.11.2018 to the accused demanding him to repay the cheque amount within 15 days from the date of receipt of statutory notice.

The counsel of the complainant neither received acknowledgement nor return cover from postal authorities. Thereupon, the complainant counsel addressed a letter to the postal authorities to enquire about the Registered post cover. The complainant further submits that accused issued a cheque towards discharge of legal enforceable debt. The accused issued a cheque without any balance amount in his account. Hence the complaint.

3. The complaint was taken on fle for the ofence under Section 138 of

Negotiable Instruments Act against the accused and issued summons to the accused for his appearance.

4. After made appearance of accused, necessary copies of the documents have been furnished to him under Section 207 of Cr.P.C.

5. Accused was examined Under Section 251 of Cr.P.C for the ofence punishable under Section 138 of Negotiable Instruments Act and explained 3 C.C.NO.1920/2019 C.M.M Court, Visakhapatnam the complaint allegations made against him, for which he pleaded not guilty and claimed to be tried.

6. During the course of trial, on behalf of the complainant, P.Ws.1 and 2 were examined and Exs.P.1 to Ex.P.6 and Ex.X1 got marked.

7. After completion of complainant side evidence, accused was examined under section 313 of Cr.P.C through Blue Jeans and explained the incriminating evidence and he denied the same and reported no defence evidence on his behalf.

8. Heard the learned counsel for complainant and learned defence counsel through Blue Jeans.

9.POINT FOR CONSIDERATION IS THAT:

1. Whether the accused issued Ex.P2/cheque in favour of

complainant towards discharge of legally enforceable debt?

2. Whether the Complainant is entitled to draw presumption under sec.139 of Negotiable Instruments Act? POINT No.1 and 2 :

10. The Complainant/Pilla Srinivasa Rao fled afdavit in lieu of his chief- examination as P.W.1 and got marked Ex.P.1 to Ex.P6. One Ratesh, Branch

Manager, Karnataka Bank Limited, Gopalapatnam Branch was examined as

PW.2 and marked Ex.X1.

DISCUSSION:

11.The case of the complainant is that accused along with his wife

Gantyada Himabindu have borrowed a sum of Rs.2,00,000/- from the complainant for the purpose of their family expenses and also to discharge the debts and they had executed a demand promissory note dt.10.6.2018 in favour of the complainant. They further agreed to repay the same together with interest @ 24% p.a., either to the complainant or to his order on demand. Inspite of repeated demands made by the complainant, accused had issued a cheque dt.5.11.2018 for Rs.1,00,000/- drawn on Karnataka Bank

Limited, Gopalapatnam branch towards discharge of pronote debt. The said 4 C.C.NO.1920/2019 C.M.M Court, Visakhapatnam cheque was presented in Andhra Bank, Port Branch, Visakhapatnam and same was returned with an endorsement “Kindly contact Drawer/Drawee bank and present again” vide memo dt.06.10.2018. Subsequently,

Complainant got issued legal notice through his counsel. The complainant counsel did not receive postal acknowledgment from the accused. He addressed a letter to postal authorities to enquire about the Registered post cover. The complainant counsel submitted that accused is liable to be punished under sec.138 of Negotiable Instruments Act.

12.The case of the defence is that accused never borrowed a sum of

Rs.2,00,000/- along with his wife as alleged in the complaint. The accused and his wife never executed demand promissory note dt.10.6.2018 in favour of the complainant. The accused never issued cheque in favour of the complainant towards discharge of the promissory note debt. The accused and his wife gave blank cheques and blank promissory note to one Ippilli

Apparao as he promised to arrange loan through SC Corporation. The said blank cheques and promissory note pressed into service and fled a false complaint in the name of complainant. The complainant had fails to prove the ingredients under sec.138 of Negotiable Instruments Act to bring home the guilt of the accused. The complainant is not entitled to draw presumption under sec.139 of Negotiable Instruments Act. The defence counsel further submits that accused is entitled for acquittal.

13.It is not in dispute that the complainant by name P.Srinivasa Rao has fled the present CC.No.1920/2019 against G.Eswara Rao. Similarly, the same complainant fled another complaint against G.Himabindu who is the wife of G.Eswara Rao. The disputed cheque involved in the present case

Rs.1,00,000/- and the cheque involved in CC.No.1984/19 is Rs.1,00,000/- respectively. The principal amount of the promissory note is Rs.2,00,000/-.

The alleged date of execution of promissory note dt.10.06.2018. The case of 5 C.C.NO.1920/2019 C.M.M Court, Visakhapatnam the complainant is that accused issued a cheque of Rs.1,00,000/- and also accused wife issued another cheque Rs.1,00,000/- towards discharge of promissory note debt. It appears fve months gap occurred in between the execution of the promissory note and date of issuance of two cheques of

Rs.1,00,000/- each. As per the interest stipulated in the promissory note

Rs.2/- per 100 and it comes to Rs.20,000/- in total. There is no whisper in the complaint allegations about the payment of interest accrued under

Ex.P1/Promissory note. There is no evidence on record to prove that complainant had demanded the accused to discharge the promissory note debt prior to the issuance of Ex.P2/Cheque. The Statutory notice said to have been issued under Ex.P4 to the accused after dishonour of

Ex.P2/Cheque.

14.Admittedly, complainant is working as Kalasi and getting an income of Rs.18,000/- p.m., The accused is also eking out his livelihood by doing coolie work. PW.1 clearly admitted that prior to Ex.P1/Promissory note transaction, accused family members borrowed amount from one Ippili

Apparao. The said Ippili Apparao is resident of same locality of complainant and accused residence. PW.1 subscribed his signature as one of the attestors on the promissory note stands in the name of Ippili Apparao. The complainant had got knowledge about the accused borrowing amount from one Ippili Apparao. The complainant had acquaintance with Ippili Apparao. It is entertained a doubt whether the complainant lent amount to the accused during the loan amount was subsisting in between Ippili Apparao and accused family. Moreover, the said Ippili Apparao has fled a civil suit against

Eswara Rao family for recovery of amount. The complainant did not fle original promissory note into the court and the photostat copy marked subject to fle the original promissory note. It is evidently clear complainant did not choose to fle original promissory note. The complainant did not 6 C.C.NO.1920/2019 C.M.M Court, Visakhapatnam choose to examine the scribe Duvvi Sankara Rao and attestors S.Durga Rao and M.Raf on his behalf. The scribe of the promissory note put the date 10.06.2018 underneath of his signature. The alleged Executants of the promissory note G.Eswara Rao and G.Himabindu have not put the date underneath of their respective signatures. The case of the defence is that they had signed on the blank promissory note and same handed over to Ippili

Apparao as security for the purpose of sanctioning of loan through SC

Corporation.

15.Once the accused denied the execution of the promissory note and passing of consideration, the initial burden lies on the complainant to prove the same. Mere fling of photo stat copy of the promissory note is not sufcient to prove the legally enforceable debt. On the other hand, complainant is eking out livelihood by doing coolie work and he did not fle any piece of document to prove his fnancial capacity to lend an amount of

Rs.2,00,000/- to the accused family.

16.Admittedly, statutory legal notice was not served on the accused.

The Learned Complainant counsel submitted that complainant got issued legal notice to the accused. The complainant counsel did not receive any postal acknowledgment from the accused. The complainant counsel said to have addressed a letter to the postal authorities but he did not receive any reply letter from the postal authorities to prove the service of Registered post cover to the accused address. The complainant has fails to examine the

Postman to prove the service of Registered post cover with containing correct address of the accused. Mere marking of ofce copy of legal notice and postal receipt, the letter addressed to the post ofce are not sufcient to prove the service of Registered post cover to the addressee.

17.As per the proviso under sec.138(b) of Negotiable Instruments Act, “the payee or the holder in due course of the cheque, as the case may be, 7 C.C.NO.1920/2019 C.M.M Court, Visakhapatnam makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid “.

Mere fling of Exs.P4 to P6 are not sufcient to prove the service of mandatory notice to the addressee. It is statutory obligation on the part of the complainant to prove the service of legal notice. The court cannot presume the mandatory notice served on the accused prior to the fling of the complaint.

18.The Learned complainant counsel submitted that Ex.X1 Statement of Account for the period from 01.11.2018 to 30.11.2018 shows that there were no transactions in the said account during the relevant period. PW.2 evidence is made it clear accused is having SB A/c.No.8122500100148701 in the Karnataka Bank, Gopalapatnam branch, Visakhapatnam. PW.2 further deposed that the said account is inactive. PW.2 admitted in the cross examination that the account is not closed but it is dormant stage. There are multiple reasons for issuance of Ex.X1. The complainant presented the cheque on 5.11.2018 through his Banker i.e., Andhra Bank, Port Branch,

Visakhapatnam but the said cheque was returned with an endorsement “Kindly contact Drawer/Drawee bank and present again” vide memo dt.06.10.2018. The said endorsement does not contain the amount is insufcient or Bank Account closed. It appears the complainant did not try to contact the accused to inform about the cheque return memo details. As per the direction of the bank, complainant did not choose to present the cheque once again for collection of the amount. It is entertain a doubt whether the accused account was closed or active for the purpose of issuance of Ex.P2/cheque.

8 C.C.NO.1920/2019 C.M.M Court, Visakhapatnam

19.The Learned defence counsel submitted that accused handed over the blank cheque to one Ippili Apparao as he promised to arrange loan in SC

Corporation. The case of the defence is that Ex.P2/Blank cheque and Blank promissory note handed over to Ippili Apparao as a Security to provide loan through SC Corporation to the accused family. It is not in dispute complainant and Ippili Apparao are known to each other prior to the fling of present complaint. Admittedly accused family members had borrowed loan from Ippili Apparao wherein complainant signed as one of the attestor on the said promissory note stands in the name of Ippilli Apparao. The further case of the defence is that the said blank cheque flled in the name of complainant for the purpose of fling of present case. The further case of the defence is that the said Ippili Apparao misused the blank cheque and got fled the false complaint in the name of complainant herein.

20. As per the proviso under sec.138 of Negotiable Instruments Act –

Complainant must prove the following ingredients:

a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

b)the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid and

c)the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within ffteen days of the receipt of the said notice.

9 C.C.NO.1920/2019 C.M.M Court, Visakhapatnam

The Explanation clearly shows for the purposes of this section, “debt or other liability” means a legally enforceable debt or other or other liability.

21.The initial burden is always lies on the complainant to prove his legally enforceable debt was existing for the purpose of issuance of

Ex.P2/Cheque for Rs.1,00,000/- dt.05.11.2018. The defence counsel argued that accused never issued Ex.P2/Cheque in favour of the complainant towards legally enforceable debt. Admittedly, the complainant did not fle civil suit for recovery of amount basing on Ex.P1/Promissory note. The complainant did not fle original promissory note into the court and the photo stat copy marked subject to fle the original promissory note. Inspite of specifc direction of the Court, the Complainant did not choose to fle original promissory note into the court to know whether there was any endorsement towards payment of interest. The further case of the defence is that one

Ippili Apparao promised to provide loan through S.C.Corporation and at that time obtained blank cheques from the accused and his wife. Subsequently both cheques were flled in the name of the Complainant. Prior to the fling of the case, Ippili Apparao has fled a civil suit against the accused for recovery of amount. It clearly shows complainant got knowledge about the accused borrowed amount from Ippili Apparao inspite of loan was subsisting in between accused and Ippili Apparao.

22.The further case of the accused is that complainant had no fnancial capacity to lend such amount of Rs.2,00,000/- to the accused family.

The complainant did not choose to fle any material to prove that he had sufcient amount as on the date of promissory note dt.10.06.2018. The complainant did not choose to examine the attestors or the scribe to prove the passing of consideration under Ex.P1/Promissory note.

10 C.C.NO.1920/2019 C.M.M Court, Visakhapatnam

23.As per the decision reported in 2008(2) APLG PG.33 SC. In

Between Krishna Janardhan Bhat Vs. Dattatraya G.Hedge. Wherein the Hon’ble Apex court observed that:

“Existence of legally recoverable debt is not a matter of presumption under sec.139 of Negotiable Instruments Act. Accused need not require to step into witness box available is sufcient to disprove the presumption.”

24.The above principle of law is clearly applicable to the present case facts on hand. The accused contended that accused had no fnancial capacity to lend such huge amount of Rs.2,00,000/- to the accused family.

Admittedly, complainant is a coolie and he had no fxed income to save huge amount.

25.As per the above principle of Law, Complainant is not entitled to draw presumption under sec.139 of Negotiable Instruments Act unless proved his fnancial capacity to lend the amount to the accused family. The complainant has fails to discharge his legal burden to prove that he had fnancial capacity to lend such huge amount of Rs.2,00,000/- to the accused family.

26.The further case of the accused is that Ippili Apparao and the complainant are colluded and created original of Ex.P1/Promissory note. The complainant did not choose to examine Ippilli Apparao to remove the suspicious circumstances surrounding Ex.P1/Promissory note. Due to non- examination of Ippili Apparao, an adverse inference can be drawn under sec.114(g) of Indian Evidence Act. There is no explanation for non payment of interest due under Ex.P1/Promissory note. The said two cheques were issued towards discharge of the principal amount only and there is no 11 C.C.NO.1920/2019 C.M.M Court, Visakhapatnam endorsement on the backside of the promissory note towards payment of interest.

27.The accused further contended that no notice was served on the accused as required under sec.138(b) of Negotiable Instruments Act. The complainant got marked Ex.P4/Ofce copy of the legal notice dt.15.11.2018 demanding the payment of Ex.P2/Cheque. Ex.P5 is the postal receipt. Ex.P6 is the letter dt.19.12.2018 addressed to the postal authorities. Ex.P6 containing sub-post letter received copy for onward submission. There is no material on record whether the notice was served on the accused or not. The burden lies on the complainant to obtain the certifcate from the postal authorities to prove the statutory notice served on the accused to satisfy the mandatory requirement under sec.138(b) of Negotiable Instruments Act. The complainant did not choose to examine the Postman to prove the service of the statutory notice to the correct address of the accused. Mere fling of the ofce copy of the legal notice and postal receipt are not sufcient to prove the same. It is a mandatory to serve the statutory notice on the accused demanding him to pay the cheque amount within the stipulated time.

28.PW.1 clearly admitted that he know Ippili Apparao. PW.1 further admitted that accused had borrowed the amount from Ippili Apparao prior to the Ex.P1/Promissory note. Ippili Apparao fled a civil suit for recovery of amount against the accused, wherein complainant herein subscribed his signature as one of the attestor on the said promissory note stands in the name of Ippili Apparao. The complainant got knowledge about the fnancial transactions between Ippili Apparao and the accused family. The complainant got knowledge about the accused failed to repay the debt amount to the Ippili Apparao. No prudent man will lend the amount to the accused family under Ex.P1 since accused family had failed to repay the prior pronote debt stands in the name of Ippili Apparao.

12 C.C.NO.1920/2019 C.M.M Court, Visakhapatnam

29.As per the decision reported in 2020(1) ALT Crl. Pg.3 SC. In

Between B.Krishnareddy Vs. Syed Hafeez. Wherein the Hon’ble Apex court observed that :

“No existing debt or liability, dishonour of cheque, cheque in question allegedly given to the complainant towards consideration for purchasing of property. Neither any document produced on record nor adduce any evidence that no conveyance was executed in favour of the accused. There was no existence of debt or liability against whom cheque was given.

The above principle of law is clearly applicable to the present case facts on hand. The complainant has failed to adduce satisfactory evidence to prove that accused issued Ex.P2/Cheque towards discharge of enforceable debt.

30.PW.1 clearly admitted that accused agreed to repay the amount after sold away his house site. The defence counsel submits that due to disputes between Ippili Apparao and accused the blank promissory note flled in the name of complainant. PW.1 clearly admitted that he handed over the original promissory note to his counsel. There is no explanation for non fling of the original promissory note into the court. PW.1 further admitted that he does not know whether Duvvi Sankara Rao scribed the promissory note stands in the name of Ippili Apparao. On perusal of Ex.P1/Promissory note said to have scribed by Duvvi Sankara Rao. It appears the scribe of

Ex.P1 and scribe of Promissory note stands in the name of Ippili Apparao are one and the same. The defence counsel further contended that accused handed over the blank cheques to Ippili Apparao and he promised to provide loan through SC Corporation to the accused family. Subsequently,

Ex.P2/cheque was fabricated and got fled a false complaint against the accused. PW.1 clearly admitted that previously dacoity case was registered 13 C.C.NO.1920/2019 C.M.M Court, Visakhapatnam against him. The defence counsel suggested to PW.1 that accused never borrowed amount from him to execute the promissory note and also issued

Ex.P2/Cheque and the same was denied. On perusal of Ex.P2/Cheque accused did not put the date underneath of his signature. The court cannot presume accused issued cheque towards discharge of the legally enforceable debt on 5.11.2018. It is evidently clear that wife and husband executed the single promissory note and there is every possibility to issue single cheque in the name of wife or husband.

31. The court cannot presume accused issued Ex.P2/cheque towards discharge of joint promissory note debt. The complainant did not adduce any satisfactory evidence on record to prove his fnancial capacity to lend huge amount of Rs.2,00,000/- to the accused family. The complainant has further fails to prove Ex.P2/cheque issued towards legally enforceable debt to draw presumption under sec.139 of Negotiable Instruments Act. The complainant further fails to prove the service of statutory notice to the correct address of the accused.

32.As per the Section 139 of Negotiable Instruments Act, “ Presumption in favour of holder, it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability ”. The above proviso is made it clear that once the accused issued cheque in favour of the complainant, the court has to presume that the holder of the cheque received cheque towards part of the discharge of the pronote debt”.

33As per the Section 138 of Negotiable Instruments Act, “138 Dishonour of cheque for insufciency, etc., of funds in the account. —

Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufcient to honour the cheque or that it exceeds the amount arranged to be paid from that account 14 C.C.NO.1920/2019 C.M.M Court, Visakhapatnam by an agreement made with that bank, such person shall be deemed to have committed an ofence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment ” .

Complainant has failed to prove the ingredients under sec.138 of

Negotiable Instruments Act.

34.In view of the above facts and circumstances, the complainant has failed to prove that accused issued Ex.P.2 cheque, in favour of complainant towards discharge of legally enforceable debt. The complainant has further failed to prove the ingredients under Section 138 of Negotiable Instruments

Act against the accused.

35.On careful scrutiny of oral evidence of P.Ws.1 and 2 coupled with documentary evidence of Exs.P.1 to Ex.P6 and Ex.X1, Complainant has failed to prove the ofence under Section 138 of Negotiable Instruments Act against the accused beyond reasonable doubt. The complainant is not entitled to draw presumption under section 139 of Negotiable Instruments act.

Accordingly the points are answered against the Complainant.

36. In the result, the accused is found not guilty for the ofence punishable under Section 138 of Negotiable Instruments Act. Accordingly the accused is acquitted for the same under Section 255(1) of Cr.P.C. The bail bonds of the accused shall stands canceled after expiry of six months only, as per Section 437-A of Criminal Procedure Code.

Dictated to Grade-I Stenographer of this court, transcribed by her, corrected

and pronounced by me in open Court, this the 23rd day of June 2021.

Chief Metropolitan Magistrate, Visakhapatnam 15 C.C.NO.1920/2019 C.M.M Court, Visakhapatnam

APPENDIX OF EVIDENCE:

Names of witnesses examined on behalf of

Complainant: Accused:

P.W.1: Pilla Srinivasa Rao None P.W.2: Ratesh

No. of documents marked for

Complainant:

Ex.P.1/ Promissory note dt.10.06.2018

Ex.P.2/ Cheque

Ex.P.3/ Return memo

Ex.P.4/ Ofce copy of Legal notice

Ex.P5/Postal cover

Ex.P6/Letter addressed to post ofce.

Ex.X1/Statement of Account during the period from 01.11.2018 to 30.11.2018.

No of documents marked for Accused:

NIL

Chief Metropolitan Magistrate, Visakhapatnam 16 C.C.NO.1920/2019 C.M.M Court, Visakhapatnam

C A L E N D A R

CALENDAR AND JUDGMENT

DISTRICT :: VISAKHAPATNAM

IN THE COURT OF CHIEF METROPOLITAN MAGISTRATE, VISAKHAPATNAM

C.C.NO.1920/2019

Date of ofence:10.06.2018

Date of release on bail: On bail

Date of Filing: 11.01.2019 Date of Apprehension: - Date of commencement of trial: 19.12.2019 Date of Close of trial: 12.04.2021 Date of Sentence or Order: Explanation for delayNo delay

Remarks:-Nil-

C.C.No.1920/2019 on the fle of Chief Metropolitan Magistrate, Visakhapatnam against accused under Section 138 of Negotiable Insturments Act

The name of the complainant :Pilla Srinivasa Rao, S/o.Venkateswara Rao, Hindu, aged 45 years, residing at D.No.44-30-16/15 (5), Port Quarters,Type-II, S.F. 602, Block NO.59, Salagramapuram, Visakhapatnam

The Name of the accused :Gantyada Eswara Rao, Parentage & ResidenceS/o.Satya Rao, Hindu, residing at D.No.36-53-16/1, Kothavada veedhi, Reddy Kancharapalem, Visakhapatnam.

Ofence:Under Sections 138 and 142 of Negotiable Instruments Act Finding:Accused is found not guilty.

Sentence In the result, the accused is found not guilty for the ofence punishable under Section 138 of Negotiable Instruments Act. Accordingly the accused is acquitted for the same under Section 255(1) of Cr.P.C. The bail 17 C.C.NO.1920/2019 C.M.M Court, Visakhapatnam bonds of the accused shall stands canceled after expiry of six months only, as per Section 437-A of Criminal Procedure Code.

CHIEF METROPOLITAN MAGISTRATE,

VISAKHAPATNAM

18 C.C.NO.1920/2019 C.M.M Court, Visakhapatnam

1 C.C.NO.1984/2019 C.M.M Court, Visakhapatnam

IN THE COURT OF THE CHIEF METROPOLITAN MAGISTRATE,

VISAKHAPATNAM.

Present: Sri P.BHASKARA RAO,

Chief Metropolitan Magistrate,

Visakhapatnam

Wednesday, the 23 rd day of June 2021

C.C.NO.1984/2019

This case coming on 22-06-2021 for fnal hearing before me in the presence of Sri G.Eswara Prasad, Advocate for the complainant and of Sri

S.Appa Rao, Advocate for the accused and the matter having stood over till this day for consideration and the Court delivered the following:

JUDGMENT

a.The Serial No. of the case:C.C.No.1984/2019 b.The date of ofence :10-06-2018 c.The name of the complainant:Pilla Srinivasa Rao, S/o.Venkateswara Rao, Hindu, aged 45 years, residing at D.No.44-30-16/15 (5), Port Quarters,Type-II, S.F. 602, Block NO.59, Salagramapuram, Visakhapatnam d.The name of the accused:Gantyada Himabindu, W/o.Eswara Rao, Hindu, residing at D.No.36-53-16/1, Kothavada veedhi, Reddy Kancharapalem, Visakhapatnam.

e.The ofence complained of:Under Sections 138 and 142 of Negotiable Instruments Act f.The plea of the accused &:When examined under Section their examination, if any251 of Cr.P.C, accused pleaded not guilty. When examined under Section 313 of Cr.P.C, accused denied the incriminating material. g.Final order

1. The complaint fled by the complainant under Sections 138 of

Negotiable Instruments Act against sole accused.

2. The brief facts of the complaint allegations is as follows:

(i) The complainant submits that accused along with her husband

Gantyada Eswara Rao have jointly borrowed a sum of Rs.2,00,000/- (Rupees 2 C.C.NO.1984/2019 C.M.M Court, Visakhapatnam two lakhs only) from the complainant for the purpose of their famly expenses and also to discharge their debts and they had jointly executed a demand promissory note dt.10.06.2018 in favour of the complainant. They agreed to pay the amount along with interest @ 24% p.a., either to the complainant or to his order on demand. The complainant demanded the accused to discharge the pronote debt and thereupon the accused and her husband issued two separate cheques in favour of the complainant for an amount of

Rs.1,00,000/- each on 5.11.2018 drawn on Karnataka Bank Limited,

Gopalapatnam branch, Visakhapatnam. The complainant presented the said cheques for collection through Andhra Bank, Port Branch, Visakhapatnam but the said cheques were returned with an endorsement “kindly contact drawer/ drawee bank and present again” vide memo dt.6.10.2018. The complainant got issued a sttautory notice dt.15.11.2018 to the accused demanding him to repay the cheque amount within 15 days from the date of receipt of statutory notice. The counsel of the complainant neither received acknowledgement nor return cover from postal authorities. Thereupon, the complainant counsel addressed a letter to the postal authorities to enquire about the

Registered post cover. The complainant further submits that accused issued a cheque towards discharge of legal enforceable debt. The accused issued a cheque without any balance amount in his account. Hence the complaint.

3. The complaint was taken on fle for the ofence under Section 138 of

Negotiable Instruments Act against the accused and issued summons to the accused for her appearance.

4. After made appearance of accused, necessary copies of the documents have been furnished to her under Section 207 of Cr.P.C.

5. Accused was examined Under Section 251 of Cr.P.C for the ofence punishable under Section 138 of Negotiable Instruments Act and explained 3 C.C.NO.1984/2019 C.M.M Court, Visakhapatnam the complaint allegations made against her, for which she pleaded not guilty and claimed to be tried.

6. During the course of trial, on behalf of the complainant, P.Ws.1 and 2 were examined and Exs.P.1 to Ex.P.6 and Ex.X1 got marked.

7. After completion of complainant side evidence, accused was examined under section 313 of Cr.P.C through Blue Jeans and explained the incriminating evidence and she denied the same and reported no defence evidence on her behalf.

8. Heard the learned counsel for complainant and learned defence counsel through Blue Jeans.

9.POINT FOR CONSIDERATION IS THAT:

1. Whether the accused issued Ex.P2/cheque in favour of

complainant towards discharge of legally enforceable debt?

2. Whether the Complainant is entitled to draw presumption under sec.139 of Negotiable Instruments Act? POINT:

10. The Complainant/Pilla Srinivasa Rao had fled afdavit in lieu of his chief-examination as P.W.1 and got marked Ex.P.1 to Ex.P6. One

Ratesh, who is working Branch Manager, Karnataka Bank Limited,

Gopalapatnam Branch was examined as PW.2 and marked Ex.X1.

DISCUSSION:

11.The case of the complainant is that accused along with her husband Gantyada Eswara Rao have borrowed a sum of Rs.2,00,000/- from the complainant for the purpose of their family expenses and also to discharge the debts and they had executed a demand promissory note dt.10.6.2018 in favour of the complainant. They further agreed to repay the

principal amount together with interest @ 24% p.a., either to the complainant

or to his order on demand. Inspite of repeated demands made by the complainant, accused had issued a cheque dt.05.11.2018 for Rs.1,00,000/- which was drawn on Karnataka Bank Limited, Gopalapatnam branch towards 4 C.C.NO.1984/2019 C.M.M Court, Visakhapatnam discharge of pronote debt. The said cheque was presented for collection in

Andhra Bank, Port Branch, Visakhapatnam and same was returned with an endorsement “Kindly contact Drawer/Drawee bank and present again” vide memo dt.06.10.2018. Subsequently, Complainant got issued a legal notice through his counsel. The complainant counsel did not receive postal acknowledgment from the accused. He addressed a letter to postal authorities to enquire about the Registered post cover. The complainant counsel further submitted that accused is liable to be punished under sec.138 of Negotiable Instruments Act.

12.The case of the defence is that accused never borrowed a sum of

Rs.2,00,000/- along with her husband as alleged in the complaint. The accused and her husband never executed demand promissory note dt.10.6.2018 in favour of the complainant. The accused never issued cheque in favour of the complainant towards discharge of the promissory note debt.

The accused and her husband gave blank cheques and blank promissory note to one Ippilli Apparao as he promised to arrange loan through SC Corporation.

The said blank cheques and promissory note pressed into service for the purpose of fling the false complaint in the name of complainant. The complainant had fails to prove the ingredients under sec.138 of Negotiable

Instruments Act to bring home the guilt of the accused. The complainant is not entitled to draw presumption under sec.139 of Negotiable Instruments

Act. The defence counsel further submits that accused is entitled for acquittal.

13.It is not in dispute that the complainant by name P.Srinivasa Rao has fled the present CC.No.1984/2019 against accused. Similarly, the same complainant fled another complaint against G.Eswararao who is the husband of G.Himabindu in C.C.No.1920/2019. The disputed cheque involved in the present case Rs.1,00,000/- and the cheque involved in CC.No.1920/19 is 5 C.C.NO.1984/2019 C.M.M Court, Visakhapatnam

Rs.1,00,000/- respectively. The principal amount of the promissory note is

Rs.2,00,000/-. The alleged date of execution of promissory note dt.10.06.2018. The case of the complainant is that accused issued a cheque for Rs.1,00,000/- and also accused in another cheque issued another cheque

Rs.1,00,000/- towards discharge of promissory note debt. It appears fve months gap was occurred in between the execution of the promissory note and date of issuance of two cheques of Rs.1,00,000/- each. As per the interest stipulated in the promissory note Rs.2/- per 100 and it comes to

Rs.20,000/- in total. There is no whisper in the complaint allegations about the payment of interest accrued under Ex.P1/Promissory note. There is no evidence on record to prove that complainant had demanded the accused to discharge the promissory note debt prior to the issuance of Ex.P2/Cheque.

The Statutory notice said to have been issued under Ex.P4 to the accused after dishonour of Ex.P2/Cheque.

14.Admittedly, complainant is working as Kalasi and getting an income of Rs.18,000/- p.m., The accused is also eking out his livelihood by doing coolie work. PW.1 clearly admitted that prior to Ex.P1/Promissory note transaction, accused family members had borrowed amount from one Ippili

Apparao. The said Ippili Apparao is resident of same locality of complainant and accused residence. PW.1 subscribed his signature as one of the attestors on the promissory note stands in the name of Ippili Apparao. The complainant had got knowledge about the accused borrowing amount from one Ippili Apparao. The complainant had acquaintance with Ippili Apparao. It is entertained a doubt whether the complainant lent amount to the accused during the loan amount was subsisting in between Ippili Apparao and accused family. Moreover, the said Ippili Apparao has fled a suit against accused family for recovery of amount. The complainant did not fle original promissory note into the court and the photostat copy marked subject to fle 6 C.C.NO.1984/2019 C.M.M Court, Visakhapatnam the original promissory note. It is evidently clear complainant did not choose to fle original promissory note. The complainant did not choose to examine the scribe Duvvi Sankara Rao and attestors S.Durga Rao and M.Raf on his behalf. The scribe of the promissory note put the date as 10.06.2018 underneath of his signature. The alleged Executants of the promissory note

G.Eswara Rao and G.Himabindu have not put the date underneath of their respective signatures. The case of the defence is that they had signed on the blank promissory note and same handed over to Ippili Apparao as security for the purpose of sanction of loan through SC Corporation.

15.Once the accused denied the execution of the promissory note and passing of consideration, the initial burden lies on the complainant to prove the same. Mere fling of photostat copy of the promissory note is not sufcient to prove the legally enforceable debt. On the other hand, complainant is eking out livelihood by doing coolie work and he did not fle any piece of document to prove his fnancial capacity to lend an amount of

Rs.2,00,000/- to the accused family.

16.Admittedly, statutory legal notice was not served on the accused.

The Learned Complainant counsel submitted that complainant got issued legal notice to the accused. The complainant counsel did not receive any postal acknowledgment from the accused. The complainant counsel said to have addressed a letter to the postal authorities but he did not receive any reply from the postal authorities to prove the service of Registered post cover to the accused address. The complainant has fails to examine the

Postman to prove the service of Registered post cover with containing correct address. Mere marking of ofce copy of legal notice and postal receipt, the letter addressed to the post ofce are not sufcient to prove the service of

Registered post cover to the addressee.

7 C.C.NO.1984/2019 C.M.M Court, Visakhapatnam

17.As per the proviso under sec.138(b) of Negotiable Instruments Act, “the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid “.

Mere fling of Exs.P4 to P6 documents are not sufcient to prove the service of mandatory notice to the addressee. It is statutory obligation on the part of the complainant to prove service of the legal notice. The court cannot presume the mandatory notice served on the accused prior to the fling of the complaint.

18.The Learned complainant counsel submitted that Ex.X1 Statement of Account for the period from 01.11.2018 to 30.11.2018 shows that there are no transactions in the said account during the relevant period. PW.2 evidence is made it clear accused is having SB A/c.No.8122500100148701 in the Karnataka Bank, Gopalapatnam branch, Visakhapatnam. PW.2 further deposed that the said account is inactive. PW.2 admitted in the cross examination that the account is not closed but it is dormant stage. There are multiple reasons for issuance of Ex.X1. The complainant presented the cheque on 05.11.2018 through his Banker i.e., Andhra Bank, Port Branch,

Visakhapatnam but the said cheque was returned with an endorsement “Kindly contact Drawer/Drawee bank and present again” vide memo dt.06.10.2018. The said endorsement does not contain the amount is insufcient or Bank Account closed. It appears the complainant did not try to contact the accused to inform about the cheque return memo details. As per the direction of the Bank, complainant did not choose to present the cheque once again for collection of the amount. It is entertain a doubt 8 C.C.NO.1984/2019 C.M.M Court, Visakhapatnam whether the accused account was closed or active for the purpose of issuance of Ex.P2/cheque.

19.The Learned defence counsel submitted that accused handed over the blank cheque to one Ippili Apparao as he promised to arrange loan through SC Corporation. The case of the defence is that Ex.P2/Blank cheque and Blank promissory note handed over to Ippili Apparao as a Security to provide loan in SC Corporation to the accused family. It is not in dispute complainant and Ippili Apparao are known to each other prior to the fling of present complaint. Admittedly, accused family members had borrowed loan from Ippili Apparao wherein complainant signed as one of the attestor on the said promissory note stands in the name of Ippilli Apparao. The further case of the defence is that the said blank cheque flled in the name of complainant for the purpose of fling the present case. The further case of the defence is that the said Ippili Apparao misused the blank cheque and got fled the complaint in the name of complainant herein.

20. As per the proviso under sec.138 of Negotiable Instruments Act –

Complainant must prove the following ingredients:

a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

b)the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid and

c)the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within ffteen days of the receipt of the said notice.

9 C.C.NO.1984/2019 C.M.M Court, Visakhapatnam

The Explanation clearly shows for the purposes of this section, “debt or other liability” means a legally enforceable debt or other or other liability.

21.The initial burden is always lies on the complainant to prove his legally enforceable debt was existing for the purpose of issuance of

Ex.P2/Cheque for Rs.1,00,000/- dt.05.11.2018. The defence counsel argued that accused never issued Ex.P2/Cheque in favour of the complainant towards legally enforceable debt. Admittedly, the complainant did not fle civil suit for recovery of amount basing on Ex.P1/Promissory note. The complainant did not fle original promissory note into the court and the photo stat copy marked subject to fle the original promissory note. Inspite of specifc direction of the Court, the Complainant did not choose to fle original promissory note into the Court to know any endorsement with regard to payment of interest. The further case of the defence is that one Ippili

Apparao promised to provide loan in S.C.Corporation and at that time obtained blank cheques from the accused and her husband. Subsequently both cheques were flled in the name of the Complainant. Prior to the fling of the case, Ippili Apparao has fled a civil suit against the accused for recovery of amount. It clearly shows complainant got knowledge about the accused borrowed amount from Ippili Apparao inspite of loan was subsisting in between accused family and Ippili Apparao.

22.The further case of the accused is that complainant had no fnancial capacity to lend such amount of Rs.2,00,000/- to the accused family.

The complainant did not choose to fle any material to prove that he had sufcient amount as on the date of promissory note dt.10.06.2018. The complainant did not choose to examine the attestors or the scribe to prove the passing of consideration under Ex.P1/Promissory note.

10 C.C.NO.1984/2019 C.M.M Court, Visakhapatnam

23.As per the decision reported in 2008(2) APLG PG.33 SC. In between Krishna Janardhan Bhat Vs. Dattatraya G.Hedge. Wherein the Hon’ble Apex court observed that:

“Existence of legally recoverable debt is not a matter of presumption under sec.139 of Negotiable Instruments Act. Accused need not require to step into witness box available is sufcient to disprove the presumption.”

24.The above principle of law is clearly applicable to the present case facts on hand. The accused contended that complainant had no fnancial capacity to lend such huge amount of Rs.2,00,000/- to the accused family.

Admittedly, complainant is a coolie and he had no fxed income to save huge amount.

25.As per the above principle of Law, Complainant is not entitled to draw presumption under sec.139 of Negotiable Instruments Act, unless proved his fnancial capacity to lend the amount to the accused family. The complainant has fails to discharge his legal burden to prove that he had fnancial capacity to lend such huge amount of Rs.2,00,000/- to the accused family.

26.The further case of the accused is that Ippili Apparao and the complainant are colluded and created Ex.P1/Promissory note. The complainant did not choose to examine Ippilli Apparao to remove the suspicious circumstances surrounding Ex.P1/Promissory note. Due to non- examination of Ippili Apparao, an adverse inference can be drawn under sec.114(g) of Indian Evidence Act. There is no explanation for non payment of interest due under Ex.P1/Promissory note. The said two cheques were issued towards discharge of the principal amount only and there is no endorsement on the backside of the promissory note towards payment of 11 C.C.NO.1984/2019 C.M.M Court, Visakhapatnam interest. Wife or husband may be issued single cheque towards discharge of

Ex.P1/promissory note instead of issuing two cheuqes.

27.The accused further contended that no notice was served on the accused as required under sec.138(b) of Negotiable Instruments Act. The complainant got marked Ex.P4/Ofce copy of the legal notice dt.15.11.2018 demanding the payment of Ex.P2/Cheque. Ex.P5 is the postal receipt. Ex.P6 is the letter dt.19.12.2018 addressed to the postal authorities. Ex.P6 containing sub-post letter received copy for onward submission. There is no material on record whether the notice was served on the accused or not.

The burden lies on the complainant to obtain the certifcate from the Postal authority to prove the statutory notice served on the accused to satisfy the mandatory requirement under sec.138(b) of Negotiable Instruments Act. The complainant did not choose to examine the Postman to prove the service of the statutory notice to the correct address of the accused. Mere fling of the ofce copy of the legal notice and postal receipt are not sufcient to prove the same. It is a mandatory requirement to serve the statutory notice on the accused demanding the accused to pay the cheque amount within the stipulated time.

28.PW.1 clearly admitted that he know Ippili Apparao. PW.1 further admitted that accused had borrowed the amount from Ippili Apparao prior to the Ex.P1/Promissory note. Ippili Apparao fled a civil suit for recovery of amount against the accused, wherein complainant herein subscribed his signature as one of the attestors on the said promissory note stands in the name of Ippili Apparao. The complainant got knowledge about the loan transactions between Ippili Apparao and the accused family. The complainant got knowledge about the accused failed to repay the debt amount to the

Ippili Apparao. No prudent man will lend the amount to the accused family 12 C.C.NO.1984/2019 C.M.M Court, Visakhapatnam under Ex.P1 since accused family had failed to repay the prior pronote debt stands in the name of Ippili Apparao.

29.As per the decision reported in 2020(1) ALT Crl. Pg.3 SC.

B.Krishnareddy Vs. Syed Hafeez. Wherein the Hon’ble Apex court

observed that :

“No existing debt or liability, dishonour of cheque, cheque in question allegedly given to the complainant towards consideration for purchasing of property. Neither any document produced on record nor adduce any evidence that no conveyance was executed in favour of the accused. There was no existence of debt or liability against whom cheque was given.

The above principle of law is clearly applicable to the present case facts on hand. The complainant has failed to adduce satisfactory evidence to prove that accused issued Ex.P2/Cheque towards discharge of enforceable debt.

30.PW.1 clearly admitted that accused agreed to repay the amount after sold away his house site. The defence counsel submits that due to disputes between Ippili Apparao and accused the blank promissory note flled in the name of complainant. PW.1 clearly admitted that he handed over the original promissory note to his counsel. There is no explanation for non fling of the original promissory note into the court. PW.1 further admitted that he does not know whether Duvvi Sankara Rao scribed the promissory note stands in the name of Ippili Apparao. On perusal of Ex.P1/Promissory note said to have scribed by Duvvi Sankara Rao. It appears the scribe of

Ex.P1 and scribe of Promissory note stands in the name of Ippili Apparao are one and the same. The defence counsel further contended that accused handed over the blank cheques to Ippili Apparao and he promised to provide loan through SC Corporation to the accused family. Subsequently, 13 C.C.NO.1984/2019 C.M.M Court, Visakhapatnam

Ex.P2/cheque was fabricated and got fled a complaint in the name of the complainant. PW.1 clearly admitted that previously dacoity case was registered against him. The defence counsel suggested to PW.1 that accused never borrowed amount from him to execute the promissory note and also issued Ex.P2/Cheque and the same was denied. On perusal of

Ex.P2/Cheque accused did not put the date underneath of his signature. The court cannot presume accused issued cheque towards discharge of the legally enforceable debt on 05.11.2018.

31.The court cannot presume accused issued Ex.P2/cheque towards discharge of promissory note debt. The complainant did not adduce any satisfactory evidence on record to prove his fnancial capacity to lend huge amount of Rs.2,00,000/- to the accused family. The complainant has further fails to prove Ex.P2/cheque issued towards legally enforceable debt to draw presumption under sec.139 of Negotiable Instruments Act. It is evidently clear that wife and husband executed the single promissory note and there is every possibility to issue single cheque in the name of wife or husband.

32.As per the Section 139 of Negotiable Instruments Act, “ Presumption in favour of holder, it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability ”. The above proviso is made it clear that once the accused issued cheque in favour of the complainant, the court has to presume that the holder of the cheque received cheque towards part of the discharge of the pronote debt”.

33As per the Section 138 of Negotiable Instruments Act, “138 Dishonour of cheque for insufciency, etc., of funds in the account. —

Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufcient to honour the cheque or that it exceeds the amount arranged to be paid from that account 14 C.C.NO.1984/2019 C.M.M Court, Visakhapatnam by an agreement made with that bank, such person shall be deemed to have committed an ofence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment ” .

Complainant has failed to prove the ingredients under sec.138 of

Negotiable Instruments Act.

34.In view of the above facts and circumstances, the complainant has failed to prove that accused issued Ex.P.2 cheque, in favour of complainant towards discharge of legally enforceable debt. The complainant has failed to prove the ingredients under Section 138 of Negotiable Instruments Act against the accused.

35.On careful scrutiny of oral evidence of P.Ws.1 and 2 coupled with documentary evidence of Exs.P.1 to Ex.P6 and Ex.X1, Complainant has failed to prove the ofence under Section 138 of Negotiable Instruments Act against the accused beyond reasonable doubt. The complainant is not entitled to draw presumption under section 139 of Negotiable Instruments act.

Accordingly the points 1 and 2 are answered against the Complainant.

36. In the result, the accused is found not guilty for the ofence punishable under Section 138 of Negotiable Instruments Act. Accordingly the accused is acquitted for the same under Section 255(1) of Cr.P.C. The bail bonds of the accused shall stands canceled after expiry of six months only, as per Section 437-A of Criminal Procedure Code.

Dictated to Grade-I Stenographer of this court, transcribed by her, corrected

and pronounced by me in open Court, this the 23rd day of June 2021.

Chief Metropolitan Magistrate, Visakhapatnam 15 C.C.NO.1984/2019 C.M.M Court, Visakhapatnam

APPENDIX OF EVIDENCE:

Names of witnesses examined on behalf of

Complainant: Accused:

P.W.1: Pilla Srinivasa Rao None P.W.2: Ratesh

No. of documents marked for

Complainant:

Ex.P.1/ Promissory note dt.10.06.2018

Ex.P.2/ Cheque

Ex.P.3/ Return memo

Ex.P.4/ Ofce copy of Legal notice

Ex.P5/Postal cover

Ex.P6/Letter addressed to post ofce.

Ex.X1/Statement of Account during the period from 01.11.2018 to 30.11.2018.

No of documents marked for Accused:

NIL

Chief Metropolitan Magistrate, Visakhapatnam 16 C.C.NO.1984/2019 C.M.M Court, Visakhapatnam

CALENDAR AND JUDGMENT

DISTRICT :: VISAKHAPATNAM

IN THE COURT OF CHIEF METROPOLITAN MAGISTRATE, VISAKHAPATNAM

C.C.NO.1984/2019

Date of ofence:10.06.2018

Date of release on bail: On bail

Date of Filing: 11.01.2019 Date of Apprehension: - Date of commencement of trial: 19.12.2019 Date of Close of trial: 12.04.2021 Date of Sentence or Order: Explanation for delayNo delay

Remarks:-Nil-

C.C.No.1984/2019 on the fle of Chief Metropolitan Magistrate, Visakhapatnam against accused under Section 138 of Negotiable Insturments Act

The name of the complainant :Pilla Srinivasa Rao, S/o.Venkateswara Rao, Hindu, aged 45 years, residing at D.No.44-30-16/15 (5), Port Quarters,Type-II, S.F. 602, Block NO.59, Salagramapuram, Visakhapatnam The Name of the accused :Gantyada Himabindu, W/o.Eswara Rao, Parentage & ResidenceHindu, residing at D.No.36-53-16/1, Kothavada veedhi, Reddy Kancharapalem, Visakhapatnam.

Ofence:Under Sections 138 and 142 of Negotiable Instruments Act Finding:Accused is found not guilty.

Sentence In the result, the accused is found not guilty for the ofence punishable under Section 138 of Negotiable Instruments Act. Accordingly the accused is acquitted for the same under Section 255(1) of Cr.P.C. The bail bonds of the accused shall stands canceled after expiry of six months only, as per Section 437-A of Criminal Procedure Code.

CHIEF METROPOLITAN MAGISTRATE,

VISAKHAPATNAM

17 C.C.NO.1984/2019 C.M.M Court, Visakhapatnam 18 C.C.NO.1984/2019 C.M.M Court, Visakhapatnam

1C.C.NO.550/2017, C.M.M Court, Visakhapatnam

IN THE COURT OF THE CHIEF METROPOLITAN MAGISTRATE,

VISAKHAPATNAM.

Present: Sri P.BHASKARA RAO,

Chief Metropolitan Magistrate,

Visakhapatnam

Wednesday , the 7 th day of April 2021

C.C.NO.550/2017

This case coming on 06-04-2021 for fnal hearing before me in the presence of Learned A.P.P for the complainant and of Sri N.S.V.Reddy,

Advocate for accused and the matter having stood over till this day for consideration and the Court delivered the following:

JUDGMENT

a.The Serial No. of the case:C.C.No.550/2017 b.The date of ofence :06-06-2017 c.The name of the :State represented by the Sub-Inspector of Police, I town p.s., Visakhapatnam city. complainant d.The name of the accused:Majji Ravi, S/o.Krishna, D.No.24-2-45, Thomson street, Visakhapatnam city.

e.The ofence complained of:Under Section 304-A of Indian Penal Code f.The plea of the accused &:When examined under Section 251 of their examination, if anyCr.P.C, accused pleaded not guilty. When accused was examined under Section 313 of Cr.P.C, he denied the incriminating material. g.Final order

1.The Sub-Inspector of Police, I town Law and order Police Station,

Visakhapatnam fled fnal report, in Cr.No.107/2017 under Section 304-A of

Indian Penal Code against the accused.

2. The brief facts of the prosecution case are as follows:

On 6.6.2017 at 22.45 hrs., the defacto complainant’s son by name Ch.Ramesh while proceeding on his motor cycle Pulsar bearing

No.AP31 CW 1079 towards fshing harbour and when he was reached Bukka veedhi near Rangadu Iron shop, the unknown car rider drove in the same direction in a rash and negligent manner and hit and run to Ch.Ramesh’s 2C.C.NO.550/2017, C.M.M Court, Visakhapatnam motor cycle. Due to the accident he sustained grievious injuries and immediately he was shifted to KGH., The Duty Doctor examined him and declared as he was brought dead. Basing on the report of the defacto complainant, police registerd a case in crime No.107/2017 under sec.304-A

IPC., The accident occured near Rangadu Iron shop , Bukka Veedhi which is situated within I town police station limits. The Investigation Ofcer visited the scene of ofence and prepared rough sketch and also drafted scene observation report. Subsequently, inquest was held over the dead body of the deceased Ramesh at KGH., Mortuary in the presence of inquestdars.

Subsequently, the dead body was sent to P.M. examination. The Assistant

Professor of Forensic Medicine, Andhra Medical college. Visakhapatnam conducted autopsy over the dead body of the deceased and issued P.M.

Certifcate. He opined that hte deceased Ramesh died due to head injury.

The Investigation ofcer examined the witnesses and recorded their statements. On receipt of the reliable source of income, police arrested the accused at Kota veedhi in the presence of mediators and recorded his confession statement. Police served under sec.41-A Cr.P.C., notice to accused and released him on bail. After completion of Investigation fled the fnal report.

3.The case was taken on fle for the ofence under Section 304-A of

Indian Penal Code against the accused and issued summons to him.

4. After made appearance of accused, necessary copies of the documents have been supplied to him under Section 207 of Cr.P.C.

5.Accused was examined Under Section 251 of Cr.P.C for the ofence under sec.304-A IPC., read over and explained to the accused in

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

6.During the course of trial, on behalf of the prosecution, P.W.1 to

P.W.13 were examined and Ex.P.1 to Ex.P.12 were marked.

3C.C.NO.550/2017, C.M.M Court, Visakhapatnam

7. After completion of prosecution evidence, the accused was examined under section 313 of Cr.P.C., through Blue Jeans and explained the incriminating evidence and he denied the same and he did not choose to adduce any defence evidence on his behalf.

8. Heard the learned A.P.P and learned defence counsel through

Blue Jeans.

9. Point for consideration is that:

Whether the prosecution proved the ingredients under Section

304-A of Indian Penal Code against the accused, beyond

reasonable doubt ? POINT:

10.The defacto complainant/Ch.Yerrappa was examined as PW.1 and marked Ex.P1 is the report. Ch.Siva was examined as PW.2 to corroborate the evidence of PW.1. S.Mahesh claimed as eye witness to the accident was examined as PW.3. Alipalli Murthy was examined as PW.4 to corroborate the evidence of PW.3. Repuri Kanaka Raju the owner of the crime vehicle bearing Regd.No.AP31 TV 5819 was examined as PW.5 and marked his 161

Cr.P.C., statement as Ex.P3. Ch.Sai Chandra was examined as PW.6 and got marked his 161 Cr.P.C., statement as Ex.P4. D.Manikyala Rao , Manager, was examined as PW.7 and got marked Ex.P5/Mediators report dt.24.7.2017 at 10.00 A.M., P.Siva Rama Gopal , the then MVI , Visakhapatnam was examined as PW.8 and marked Ex.P6/MVI report. Dr.P.V.Venkata Ramana Rao, Asst.

Professor, Forensic Medicine Department who conducted autopsy over the deceased Ch.Ramesh and issued P.M. Certifcate and marked Ex.P7/Post mortem report. Ch.Uma Kanth, Inspector of police was examined as PW.10 and marked Ex.P8/FIR. P.Rama Rao, SI of police was examined as PW.11 who investigated the case and fled charge sheet and marked Ex.P9 is the rough sketch and Ex.P10 is the scene observation report. Karri Yellaji was examined 4C.C.NO.550/2017, C.M.M Court, Visakhapatnam as PW.12 and marked his 161 Cr.P.C., statement as Ex.P11. R.Satish was examined as PW.13 and marked his signature as EX.P12.

11.The case of the prosecution is that on On 6.6.2017 at 22.45 hrs., the defacto complainant’s son by name Ch.Ramesh while proceeding on his motor cycle Pulsar bearing No.AP31 CW 1079 towards fshing harbour and when he was reached Bukka veedhi near Rangadu Iron shop, the unknown car rider drove in the same direction in a rash and negligent manner and hit and run to Ch.Ramesh’s motor cycle due to the accident he sustained grievious injuries and immediately he was shifted to KGH., The Duty Doctor examined him and declared as he was brought dead. Basing on the report of the defacto complainant, police registerd a case in crime No.107/2017 under sec.304-A IPC., The accident occured near Rangadu Iron shop, Bukka Veedhi which is situated within I town police station limits. During the course of

Investigation, the Investigation Ofcer examined the owner of the car and identifed the accused drove the crime vehicle car. The Learned APP submitted that accused is liable to be punished under sec.304-A IPC.,

12.The case of the defence is that there is no identifcation of the driver of the car to fx up the responsibility on the accused. Accused was falsely implicated in this case. There is no corroboration in between prosecution witnesses to prove the case against the accused. Prosecution has fails to prove the ingredients under sec.304-A IPC., against the accused.

The defence counsel further submits that accused is entitled for acquittal.

13.As per Ex.P1 report, defacto complainant received phone message at about 10.45 P.M., as his son met with road accident. He rushed to KGH., and found the dead body of his son by name Ch.Ramesh. The contents of Ex.P1 report made it clear unknown person hit the deceased

Ramesh motor cycle and left the place. Column No.7 of FIR shown as unknown person.

5C.C.NO.550/2017, C.M.M Court, Visakhapatnam

14.P.W.1/ Ch.Yerrappa deposed in his evidence that he is resident of

Gollaveedhi, Chengalraopeta, Visakhapatnam. He is a Fisherman. Deceased

Ramesh is his son. In the year 2015 at about 10:30 PM, he received phone call from L.Ws.6/Yellaji and L.W.7/Murthy stating that his son met with an accident near Bukka veedhi near Welding shop. He went to the KGH and found the dead body of his deceased son Ramesh. He came to know Ramesh died in a road accident. He gave report to the police. PW.1 further deposed that his son died in a road accident occurred in Bukka veedhi,

Visakhapatnam. He received information through their street people and he rushed to the accident spot but his son was shifted to KGH. He went to KGH and found the dead body of his son. He do not know who hit his deceased son and the driver name and vehicle registration number. He gave report to the police and put his thumb impression on the report. Police examined him and recorded his statement. PW.1 clearly admitted that he do not know who hit his deceased son and driver name and vehicle Registration number. He gave report to the police and put his thumb impression on the report. PW.1 is an illiterate and not an eye witness to the accident to identify the driver of the car.

15.PW.2/Ch.Siva deposed that he is resident of Bukka Veedhi,

Visakhapatnam. P.W.1 is his father. Deceased Ramesh is his brother. Ramesh died in a motor Car accident on 06-06-2017 at Bukka veedhi. He came to know about the accident through the street mates. He rushed to the KGH and found the dead body of deceased. Police examined him and recorded his statement. He do not know the Car number and driver. He cannot say who is responsible for the accident.

16.PW.3/S.Mahesh deposed that on 06.06.2017 at about 10.30 P.M., he is doing business at Fishing Harbour, he saw the accident and one car hit one person by name Ramesh and he sustained injuries. He cannot identify the 6C.C.NO.550/2017, C.M.M Court, Visakhapatnam driver of the car. He found the car engine in raise condition and also found smoke. He cannot say the car number. Police never examined him.

17.PW.4/Alipilli Murthy deposed that on 06.06.2017 at about 10.30P.M., himself and his friend Yellaji purchased the beer and proceeding heard big sound and found car with heavy smoking and shifted Ramesh in an auto to the hospital. The said Ramesh died while he was undergoing treatment at KGH., The accused is responsible for the death of Ramesh and accused drove the car in a rash and negligent manner and the accident was occurred. The said Ramesh was coming on his two wheeler and car hit the deceased motor cycle and he sustained injuries. It was elicited in the cross examination that after hearing the big sound, he rushed to the accident spot.

Ex.P1 report nowhere mentioned about the eye witnesses names. PW.4 presence is doubtful at the time of accident. PW.4 did not state the vehicle

Registration Number.

18.PW.5/R.Kanaka Raju deposed that he is resident of seethampeta.

He is doing travels business under the name of Swamy Sai travels. He is having two cars bearing no : AP31 TV 5819 and accused is the driver of the said car. He leased out the car to the reliance jio ofce on the monthly rent of Rs.30,000/- accused is the driver of the said car. He do not know about the car accident. The Learned APP cross examined PW.5 and got marked his 161

Cr.P.C., statement as Ex.P3.

19.PW.6/Ch.Sai Chandra deposed that he is resident of Jalaripeta,

Visakhapatnam. He is working in a Bar as a Supervisor. He do not know the accused. He do not know the accident. He do not know anything about the case. He do not know the P.W.1. The Learned APP cross examined PW.6 and got marked his 161 Cr.P.C., statement as Ex.P4.

20.PW.7/D.Manikyala Rao deposed that he is resident of Relliveedhi,

Visakhapatnam. He is working as a Manager in Town Hall. He do not know 7C.C.NO.550/2017, C.M.M Court, Visakhapatnam

L.W.12/R.Satish. At the request of SI of police he went to Kota veedhi on 24- 07-2017 at about 10 AM along with L.W.12/Satish. Police arrested the accused in their presence and disclosed his name as Ravi and also confessed about the commission of ofence. Ex.P5 is the mediator report dt. 24-07-2017 at 10

AM. PW.5 identifed the accused. PW.7 clearly admitted that police used to call him to the police station as caste elder. He do not know the case facts.

Police do not serve summons to him to act as mediator.

21.PW.8/P.Siva Rama Gopal deposed that he has been working as Motor

Vehicle Inspector at Srikakulam. Previously, he worked as MVI,

Visakhapatnam from 15.2.2015 to 11.7.2019. On 15.7.2017 he received requisition from SHO., I town P.S., with a request to conduct road test to the crime vehicle bearing Regd.No.AP31 TV 5819. Accordingly he conducted road test to the vehicle and found no damages. He opined that the accident was not occurred due to mechanical defects. Accordingly, he issued MVI report which is marked as Ex.P6.

22.PW.9/Dr.P.Venkata Ramana Rao deposed that he is working as

Assistant Professor Forensic Medicine Department in Andhra Medical college/

KGH Visakhapatnam since 27.09.2014. On07.06.2017hereceived requisition from SHO I town PS. At 1.30 p.m to conduct post morterm examination dead body of the deceased Cheepilli Ramesh. Accordingly he conducted post morterm examination and found seven anti morterm external and internal injuries mentioned in the post mortem report. The cause of death to the best of his knowledge is shock and haemorrhaga due to injury to liver and spleen due to blunt injury adomen. The approximate time of death is 12.00 to 18.00hrs to the post mortem examination accordingly he issued post morterm report marked as Ex P7.

23.PW.10/Ch.Uma Kanth, deposed that he has been working as Inspector of police, Gopalapatnam West Trafc circle. Previously, he worked as 8C.C.NO.550/2017, C.M.M Court, Visakhapatnam

Inspector of police, I town p.s., Visakhapatnam during the relevant period of the case. On 17.6.2017 at about 9 A.M,. Ch.Yerrayyappa presented a report to SHO, I town p.s., Basing on the report, he registered a case in crime

No.107/17 under sec.304-A IPC., He issued FIR which is marked as Ex.P8. He endorsed the case to SI of police/Ramarao for Investigation. PW.10 registered the FIR and endorsed the case to the S.I. of police. PW.10 clearly admitted that he did not mention in column No.8, the reasons for delay in registering the FIR. It is true column No.3 of the FIR , occurrence of the ofence took place on 6.6.2017 whereas in column No.12 of FIR, the occurrence of the ofence is 6.6.2016.

24.PW.11/P.Ramarao deposed that he has been working as SI of police,

V.Madugula since November, 2019. Previously, he worked as SI of police, I

Town P.S from September, 2015 to June, 2018. Their Inspector of police/Ch.Umakanth registered the FIR in Cr.No.107/2017 and endorsed the case to him for investigation. He examined witnesses and recorded their 161

Cr.P.C statements. He conducted inquest in the presence of panchayatdar on the dead body of deceased. He forwarded the dead body to the KGH for conducting postmortem examination. He handed over the dead body to his relatives. PW.11 further deposed that he visited the scene of ofence and prepared rough sketch and also drafted scene observation report. Rough sketch is marked as Ex.P9. He also examined crime vehicle owner. He received PM report. He addressed a letter to MVI for conducting road test to the crime vehicle. He received credible information and arrested the accused in the presence of mediators. He forwarded the accused to the Court for remand and Court refused to accept the remand for want of Sec.41-A Cr.P.C notice. Thereafter U/Sec.41-A Cr.P.C notice served to the accused. MVI

Inspector conducted road test to the vehicle and accordingly issued MVI report. After completion of investigation, he fled the charge sheet. Ex.P10 is 9C.C.NO.550/2017, C.M.M Court, Visakhapatnam the scene observation report. P.Ws.3, 5 and 6 were stated before him as in

Exs.P2 to P4. The defence counsel suggested that accused is falsely implicated in this case due to unidentifed the actual ofender in this case and the same was denied.

25.PW.12/Kari Yellaji deposed that he is resident of Mangavanipeta.

He is a private employee. He do not know anything about the case. The

Learned APP cross examined PW.12 and got marked his 161 Cr.P.C., statement as Ex.P11.

26.PW.13/R.Satish deposed that he is resident of Relli Veedhi,

Visakhapatnam. He is doing coolie work at Visakhapatnam port. On showing the signature available on the mediators report dt.24.07.2017 at about 10.00 hrs., is of mine and signature portion is marked as Ex.P12. He do not know the contents of the mediators report.

27.The case of the prosecution is that unknown car driver hit and ran away from the scene of ofence. Ex.P1 report does not contain any eye witnesses names to identify the car driver. PW.s.1 and 2 are the family members of the deceased Ch.Ramesh and they are not the witnesses to the accident. PW.3 claimed as eye witness to the accident but he cannot identify the crime vehicle. He cannot say the crime vehicle number. PW.3 evidence is no way helpful to prove the case. PW.4 deposed that he heard the big sound and found car with heavy smoking and injured was shifted to KGH., in an auto. The injured died while he was undergoing treatment at KGH., PW.3 deposed the new facts. There is no corroboration in between PW.4 and PW.3 evidence about the identity of the crime vehicle car. PW.5 deposed that he know about the case facts. PW.5 did not fle any document to show that he engaged the services of the accused as driver of the crime vehicle car as on the date of the accident. PW.6 deposed that he do not know anything about the case. PW.7 deposed that at the request of police he went to kota veedhi 10C.C.NO.550/2017, C.M.M Court, Visakhapatnam and he signed as Ex.P5/Mediators report. PW.7 did not state anything against the accused about the accident. PW.7 clearly admitted that he do not know the case facts. PW.8 MVI who conducted road test to the vehicle and issued

Ex.P6/MVI report. PW.9/Assistant Professor who conducted autopsy over the deceased and issued Ex.P7/P.M. Report. PWs.10 and 11 / Investigation

Ofcers who registered the FIR and investigated the case. PW.12 deposed that he do not know anything about the case. PW.13 clearly deposed that he do not know the contents of mediators report. The Learned APP given up witnesses i.e., Lws.3 to 5/Chipulla Mahesh, Chipulla Ramarao and Chipulla

Yerrappa.

28.As per the proviso under sections 101 to 103 of Indian Evidence Act – It is the duty of the Prosecution to prove that accused drove the crime vehicle car bearing Registered number AP31 TV 5819 in a rash and negligent manner and hit the deceased motor cycle due to which he sustained grievious injuries. Mere assumption and presumption is not sufcient to prove the case against the accused.Driving the vehicle not established – Accused is entitled for acquittal (AIR) 2009 SC 823.

29.As per the ingredients under Section 304-A of Indian Penal

Code :

“ Causing death by negligence.—Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment ” .

Prosecution has failed to prove the ingredients under Section 304-A of Indian Penal Case against the accused beyond reasonable doubt.

30.As per the decision reported in 2003 (2) APLJ Pg.56 SN.

Wherein Hon’ble High court it was held that 304-A IPC., 11C.C.NO.550/2017, C.M.M Court, Visakhapatnam

“there cannot be any presumption that the accused drove the

motor vehicle in a rash and negligent manner which aspect the

prosecution must be proved.”

The above Principle of law is clearly applicable to the present case on hand.

31.On careful scrutiny of oral evidence of P.W.1 to P.W.13 coupled with documentary evidence of Exs.P.1 to Ex.P.12, prosecution has failed to prove the ofence under Section 304-A of Indian Penal Code against the accused beyond reasonable doubt. Accordingly the point is answered against prosecution.

32. In the result, accused is found not guilty for the ofence punishable under Section 304-A of Indian Penal Code. Accordingly he is acquitted for the same under Section 255(1) of Cr.P.C. The bail bonds of the accused shall stands canceled after expiry of six months only, as per Section 437-A of Criminal Procedure Code.

Dictated to Grade-I Stenographer of this court, transcribed by her, corrected and

pronounced by me in open Court, this the 7h day of April 2021.

Chief Metropolitan Magistrate, Visakhapatnam

APPENDIX OF EVIDENCE:

Names of witnesses examined on behalf of

Prosecution: Accused:

P.W.1: Chipulla Yerrappa - NONE - P.W.2: Chipulla Siva P.W.3: Surada Mahesh P.W.4: Allipalli Murthy P.W.5: Repuri Kanaka Raju P.W.6: Chintapalli Sai Chandra P.W.7: Dasamanthula Manikyala Rao P.W.8: P.Siva Rama Gopal P.W.9: Dr.P.Venkata Ramana P.W.10: Ch.Uma Kanth P.W.11: P.Rama Rao P.W.12: Kare Yellaji P.W.13: Rathapu Satheesh 12C.C.NO.550/2017, C.M.M Court, Visakhapatnam

No. of documents marked for

Prosecution : Accused:

Ex.P.1/ Report - NIL - Ex.P.2/ 161 of Cr.P.C statement of P.W.3 . Ex.P.3/ 161 of Cr.P.C statement of P.W.5 Ex.P.4/ 161 of Cr.P.C statement of P.W.6 Ex.P.5/ Mediators Report dt.24-7-2017 at 10 A.M Ex.P.6/ MVI Report Ex.P.7/ P.M. Report Ex.P.8/ FIR Ex.P9/ Rough Sketch Ex.P10/ Scene Observation Report. Ex.P11/161 Cr.P.C., statement of PW.12 Ex.P12/Signature portion marked

Material Objects marked for

Prosecution: Accused:

- NIL - - NIL -

Chief Metropolitan Magistrate, Visakhapatnam 13C.C.NO.550/2017, C.M.M Court, Visakhapatnam

CALENDAR AND JUDGMENT

DISTRICT :: VISAKHAPATNAM

IN THE COURT OF CHIEF METROPOLITAN MAGISTRATE, VISAKHAPATNAM

C.C.NO.550/2017

Date of ofence:06.06.2017

Date of release on bail: on bail

Date of Filing: 18.08.2017 Date of Apprehension: Under sec.41-A Cr.P.C., notice Date of commencement of trial: 04.12.2019 Date of Close of trial: 31.03.2021 Date of Sentence or Order: 07.04.2021 Explanation for delayNo delay

Remarks:-Nil-

C.C.No.550/2017 on the fle of Chief Metropolitan Magistrate, Visakhapatnam against accused in Cr.No.107/2017 under Section 304-A of Indian Penal Code

The name of the complainant :State represented by the Sub-Inspector of Police, I town p.s., Visakhapatnam city. The Name of the accused :Majji Ravi, S/o.Krishna, Parentage & ResidenceD.No.24-2-45, Thomson street, Visakhapatnam city.

Ofence:Under Section 304-A of Indian Penal Code

Finding:Accused is found not guilty.

SentenceIn the result, accused is found not guilty for the ofence punishable under

Section 304-A of Indian Penal Code.

Accordingly he is acquitted for the same under Section 255(1) of Cr.P.C. The bail bonds of the accused shall stands canceled after expiry of six months only, as per Section 437-A of Criminal

Procedure Code.

CHIEF METROPOLITAN MAGISTRATE,

VISAKHAPATNAM

14C.C.NO.550/2017, C.M.M Court, Visakhapatnam

1 C.C.NO.1760/2019 C.M.M Court, Visakhapatnam

IN THE COURT OF THE CHIEF METROPOLITAN MAGISTRATE,

VISAKHAPATNAM.

Present: Sri P.BHASKARA RAO,

Chief Metropolitan Magistrate,

Visakhapatnam

Thursday, the 1 st day of April 2021

C.C.NO.1760/2019

This case coming on30-03-2021for virtual hearing before me in the presence of A.P.P for the complainant and of Smt.U.Hemalatha, Advocate for the accused and the matter having stood over till this day for consideration and the Court delivered the following:

JUDGMENT

a.The Serial No. of the case:C.C.No.1760/2019 b.The date of offence :13.04.2019 c.The name of the :State represented by the Inspector of Police, Dwaraka Sub-Division (Crimes), complainantVisakhapatnam city d.The name of the accused:Pasupuleti Lakshmi, W/o.late Suribabu, 50 years, Kapu by caste, R/o.D.NO.13-1096/1, Apsara colony, Balaji nagar, Arilova, Visakhapatnam city.

e.The offence complained of:Under Section 380 or 411 of Indian Penal Code. f.The plea of the accused &:When examined under Section 239 of their examination, if anyCr.P.C, accused pleaded not guilty. When accused was examined under Section 313 of Cr.P.C, she denied the incriminating material. g.Final order

1.The Inspector of Police, Dwaraka Sub Division (Crimes),

Visakhapatnam filed Final Report in Cr.No.130/2019 under Sections 380 or 411 of Indian Penal Code, against the accused.

2. The brief facts of the prosecution case are as follows:

(a) LW.1/Md.Khaja is resident of house bearing D.No.13-1096/1,

Apsara colony, Balajinagar, Visakhapatnam within Arilova police station limits.

2 C.C.NO.1760/2019 C.M.M Court, Visakhapatnam

(b)On 13.4.2019 at about 19.15 hrs., LW.1/Md.Khaja left the house and went to her Grand Mother’s house which is situated nearby in the same locality. LW.1/Md.Khaja returned back to the house at about 7.45 hrs., and he noticed the entry gate and doors of the house were kept open. On verification, he found the gold ornaments and cash of Rs.34,000/- were stolen by unknown culprits. Gold ornaments 1) gold bangles – 04, 2) atukula haram- 01, 3) gold balls chain-01, 4) gold finger rings-03, 5) gold ear studs – 01 pair,

6) gold necklace – 01, 7) gold necklace-01, 8) gold haram-01 9) gold ear studs -01, 10) gold ettugolusulu ear studs – 01 pair 11) gold finger rings -05,

12) gold baby bangles – 02, 13) gold chains – 03, Total gold weight 295.982 gms. LW.1/Md.Khaza approached the Arilova police station and presented a written report. Basing on the report, he registered a case in crime No.130/19 under sec.380 IPC.,

c)During the course of Investigation, LW.11/V.Babji Rao, Inspector of police, Dwaraka sub-division, visited the scene of offence and prepared rough sketch. He summoned the “CLUE” Team and Finger Print Expert with a request to visit the scene of offence and finger prints available at the scene of offence to collect the material evidence. The Investigation Officer examined the witnesses and recorded their statements.

d)During the course of further investigation, on 20.04.2019 at 7.00 hrs., on receipt of credible information, Investigation officer secured mediators and apprehended the accused with the help of women PC – 989 and accused possessed stolen property. The said property identified as case property in this case. She made a confession statement before the mediators and drafted the mediators report. After completion of due formalities, accused was forwarded to the court for remand. After completion of investigation, filed the Final Report.

3 C.C.NO.1760/2019 C.M.M Court, Visakhapatnam

3.The case was taken on file for the offence under Sections 380 or 411 of Indian Penal Code, against the accused and issued summons to him.

4. After made appearance of the accused, necessary copies of the documents have been supplied to her under Section 207 of Cr.P.C.

5.The accused was examined Under Section 239 of Cr.P.C and accordingly charge under Section 380 or 411 of Indian Penal Code read over and explained to the accused in Telugu, for which she pleaded not guilty and claimed to be tried.

6.During the course of trial, on behalf of the prosecution, P.Ws.1 to

P.W.8 were examined and Ex.P.1 to Ex.P.4 and M.Os.1 to 13 were marked.

7. After completion of prosecution evidence, the accused was examined under section 313 of Cr.P.C., through Blue Jeans and explained the incriminating evidence and she denied the same and she did not choose to adduce any defence evidence on his behalf.

8. Heard the learned A.P.P and learned defence counsel through Blue

Jeans. Defence counsel filed written arguments also.

9. Point for consideration is that:

Whether the prosecution proved the ingredients under Section 380 or 411

of Indian Penal Code against the accused, beyond reasonable doubt ?

POINT:

10.The defacto Complainant/Md.Khaja was examined as PW.1 and marked Ex.P1 is the report and Mos.1 to 13. Md.Kasim was examined as

PW.2 to corroborate the evidence of PW.1. Md.Fayaz was examined as PW.3 to corroborate the evidence of PW.2. Md.Hasina Begam was examined as

PW.4 to corroborate the evidence of PWs.2 and 3. Md.Raheema was examined as PW.5. Md.Karima was examined as PW.6. Md.Magwal was examined as PW.7 and marked Ex.P2 is the signature on the mediators report dt.20.4.2019 at 7.00 A.M., V.Babji Rao/ Inspector of police, was examined as

PW.8 and marked Ex.P3/FIR, Ex.P4/Rough sketch.

4 C.C.NO.1760/2019 C.M.M Court, Visakhapatnam

11.The case of the prosecution is that LW.1/Md.Khaja is resident of house bearing D.No.13-1096/1, Balaji nagar within Arilova police station limits. The complainant family members went to the house of their grand mother’s house locality which is situated nearby the same locality. After return from his grand mother’s house, they found the doors were kept open.

On verification inside of the house, unknown persons committed theft of the gold ornaments from his almirah. He presented a report to the police.

During the course of investigation, police arrested the accused and recovered the stolen property from the possession of accused under the cover of mediators report. The Learned APP submitted that accused is liable to be punished under sections 380 or 411 IPC., against the accused.

12. The case of the defence is that accused had not committed any offence. PWs.1 to 4 belongs to one family members. The mediator did not support the case of the prosecution. The mediator is a stock mediator to the

SHO/Ariova police station. There is no independent evidence to prove that accused committed theft in a dwelling house to attract the ingredients under sections 380 or 411 IPC., There is no evidence on record to prove that police recovered the stolen property from the possession of accsued. Prosecution has fails to prove the ingredients under secs.380 or 411 IPC., against the accused beyond reasonable doubt. Therefore, accused is entitled for acquittal.

13.One Md.Khaza presented a report to the SHO/Arilova police station on 14.04.2019 stating that on 13.04.2019 at 7.15 hrs., his family members left the house to go to his grand mother’s house which is situated within their locality and after 30 minutes they returned to the house and found the doors are opened. On verification inside of the house gold ornaments are found missing. Ex.P1 report does not contain any suspected person name and his house doors are closed without locking. The defacto 5 C.C.NO.1760/2019 C.M.M Court, Visakhapatnam complainant returned back to Visakhapatnam from Hyderabad and later presented a report to the Arilova police station.

14.PW.1/ Md.Khaza deposed in his evidence that on 13.4.2019 unknown person committed theft of gold in his house from his almirah. On 12.4.2019 he went to Hyderabad on his personal work. He received phone call from his sister about commission of theft of gold and return back to

Visakhapatnam. Immediately he gave report to the Arilova p.s., nearly 311 grams committed theft from his almirah. 4 bangles, Atukula Haram, Bowl chain haram, 3 finger rings and also 5 finger rings , ear studs, 4 pairs, 3 gold chains, gold haram, cash Rs.35,000/- baby bangles – 2, gold necklaces-2 approximately 13 gold items. PW.1 further deposed that 10 days after commission of theft police recovered stolen property. He received interim custody of gold. Ex.P1 is the report lodged by him. MO.1 is the 4 gold bangles, MO.2 Is the Atukula Haram, MO.3 is the gold balls chain, MO.4 is the gold finger rings-3, MO.5 is the gold ear studs-2, MO.6 is the gold necklace-1,

MO.7 is the gold necklace-1, MO.8 is the gold haram,MO.9 is the gold ear studs, MO.10 is the gold ettugolusulu ear studs – 1 pair, MO.11 is the gold finger rings -5, MO.12 is the gold baby bangles – 2, MO.13 is the gold chains –

3. It was elicited in the cross examination it is true accused was tenant in the ground floor of his house. PW.1 admission is made it clear accused is the tenant of PW.1.

15.PW.2/ Md.Khasim deposed that on 13-04-2019 in the evening he went to Mosque to observe Namaz. He returned back to the house at about 7:30

PM and found broke open the doors of his house. He found missing of 310 grams of gold and cash approximately Rs.25,000/- to 30,000/-. He searched in and around but in vain. He gave report to the police. 10 days after presentation of the report, police informed about the recovery of gold. PW.2 clearly admitted that he do not know who committed theft of gold and cash.

6 C.C.NO.1760/2019 C.M.M Court, Visakhapatnam

16.PW.3/Md.Fayaz deposed that PW.2 is his father. The unknown persons committed theft of gold and cash in their house. He do not know who committed theft of the same. It was elicited in the cross examination that he do not know what the police recorded in his 161 Cr.P.C., statement. PW.3 did not state anything against the accused.

17.PW.4/Hasina Begum deposed that P.W.2 is her husband. PW.3 is her son. The unknown persons committed theft of gold and cash in their house. She do not know who committed theft of the same. It was elicited in the cross examination that she does not know what the police recorded in her 161 Cr.P.C., statement. PW.4 did not state anything against the accused.

18.PW.5/Md.Raheema deposed that about 8 months back unknown person committed theft of gold and cash in her house. PW1 gave complaint to the police. After 10 days police recovered the gold.

19.PW.6/ Md.Karima deposed that about 8 months back, unknown person committed theft of gold and cash in her mothers house. PW.1 gave complaint to the police. After 10 days police recovered the gold. It was elicited in the cross examination that she do not know the case facts.

20.PWs.1 to 6 belongs to one family. They did not state anything against the accused. PW.1 is the defacto complainant herein. PWs.2 to 6 are also belongs to the family members of the defacto complainant.

21.PW.7/Md.Magmal deposed that he know P.W.1/Md.Khaja. He accompanied along with P.W.1/Md.Khaja to lodge the complaint for commission of theft of gold property. Three days after presentation of report, police recovered gold property and shown the same to him. At the time of handing over gold property to the complainant, he signed on the mediators report as one of the mediator. One Sk. Shajahan (died) also signed along with him. PW.7 identified the signature available on the mediators report dt.

20.04.2019 at 7 AM which is marked as Ex.P2. He do not know the accused.

7 C.C.NO.1760/2019 C.M.M Court, Visakhapatnam

The Learned APP cross examined PW.7 and suggested that police arrested and recovered the stolen property from the possession of accused under the cover of mediators report and the same was denied. The case of the

Prosecution is that police arrested the accused in the presence of

PW.7/Md.Magwal and Shaik Sajahan. PW.7 evidence clearly shows police handed over the case property in his presence and he do not know about the arrest and seizure of the gold ornaments.

22.PW.8/V.Babji Rao deposed that he has been working as Inspector of police, CID, Visakhapatnam. Previously, he worked as Inspector of police,

Dwaraka Sub-Division crime, Visakhapatnam. LW.10/K.Ashok Kumar,

Inspector of police, Arilova p.s., registered a case in crime No.130/19 under sec.380 IPC., and endorsed the case to him for Investigation. He identified the signature of LW.10/K.Ashok Kumar , Inspector of police. FIR is marked as

Ex.P3. P.W.8 further deposed that he secured the presence of complainant /

Md.Khaza and recorded his 161 Cr.P.C., statement. He also secured the presence of LWs.2 to 7 examined them and recorded their statements. He visited the scene of offence situated at Apsara colony, Balajinagar and prepared rough sketch which is marked as Ex.P4. PW.8 further deposed that he prepared scene observation report and summoned the Clues Team and

Finger Print Expert to visit the scene of offence and to take chance prints. On 20.04.2019 at about 7 hrs., he received credible information relates to the present crime. He visited Apsara colony and secured mediators Sk.Shajahan and Md.Magwal. He secured the presence of WPC 989 and apprehended the accused and she voluntarily confessed about the commission of offence.

PW.8 further deposed that he recorded her confessional statement in the presence of mediators. He instructed the woman P.C. to search accused and she found gold ornaments. He identified the gold property as stolen property in Cr.No.130/19 under sec.380 IPC., He seized gold property under the cover 8 C.C.NO.1760/2019 C.M.M Court, Visakhapatnam of mediators report. He forwarded the accused to the court for remand. After completion of investigation, he filed final report.

23.PW.7 clearly admitted that the entire stolen property was recovered. As per the prosecution case, Investigation Officer arrested the accused on 20.04.2019 at 7.00 hrs., in the presence of mediators. The mediators are the material witnesses in this case. One Mediator Shaik Sajahan is no more and another mediator PW.7/Md.Magwal did not state anything against the accused. PW.1 deposed that 10 days after presentation of the report, police recovered the stolen property. PW.7 deposed that 3 days after presentation of the report, police recovered the gold property. There is no corroboration in between PW.1 and PW.7 about the recovery of gold property.

24.As per the contents of mediators report dt.20.04.2019, accused was sat on the varandah in front of the house and on seeing the police, she went inside of the house. On suspicious, police arrested the accused and recovered the gold property. The Investigation Officer did not try to obtain signatures of the neighbours of the accused. PW.1 clearly admitted that accused is residing as a tenant in his house. The prosecution did not choose to examine Devadula Naga (Appraisor). The Mediators report does not contain who drafted the same. The stolen property was not recovered soon after commission of the theft. The alleged offence took place on 13.04.2019 and property said to have recovered on 20.04.2019.

25.As per Ex.P4/Rough sketch, Investigation Officer did not choose to examine neighbouring house owners of the scene of offence. Investigation

Officer examined the family members of the defacto complainant.

26.The defence counsel submitted that as per section 26 of the

Indian Evidence Act - Confession made by accused while in custody of police not to be proved against him.

9 C.C.NO.1760/2019 C.M.M Court, Visakhapatnam

As per the provisio under sec.26 of Indian Evidence Act – No confession made by any person while he is in custody of a Police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as agaist such person.

27.The Investigation Officer did not take steps to record the confession statement of accused before the Learned Magistrate. There is no evidence on record to prove that accused made a confession statement

before the Mediators at the time of recording confession statement and

recovery of gold property. Mos.1 to 13 relates to gold ornaments. The

Prosecution has fails to explain about the non seizure of the cash. The defence counsel submitted that the case is foisted against the accused. The

Learned APP given up LW.5/Md.Shahnaz Begum and LW.8/Shaik Sajahan.

28. As per the ingredients under Section 380 of Indian Penal Code:

“ 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 ”

Thereis no direct evidence to prove that accused committed theft of gold ornaments in dwelling house of the defacto complainant to attract the ingredients under sec.380 IPC., against the accused. Prosecution has failed to prove the ingredients under sec.380 IPC., against the accused beyond reasonable doubt.

29. As per the ingredients under Section 411 of Indian Penal

Code :

“ Dishonestly receiving stolen property — Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment ”.

Prosecution has further fails to prove the recovery of stolen property from the possession of accused. Prosecution has failed to prove the 10 C.C.NO.1760/2019 C.M.M Court, Visakhapatnam ingredients under sec.411 IPC., against the accused beyond reasonable doubt.

30.Mere assumption and presumption is not sufficient to prove the case against the accused. The prosecution has fails to examine any

Independent witness to prove the offence. There is no corroboration in between PWs.7 and 8 material evidence to prove the case against the accused.

31.On careful scrutiny of oral evidence of P.Ws.1 to P.W.8 coupled with documentary evidence of Ex.P.1 to Ex.P.4 and M.Os.1 to 13, prosecution has failed to prove the ingredients under Section 380 or 411 of Indian Penal

Code against the accused beyond reasonable doubt. Accordingly, the point is answered against the prosecution.

32. In the result, accused is found not guilty for the offence punishable under Sections 380 or 411 of Indian Penal Code. Accordingly she is acquitted for the same under Section 248(1) of Cr.P.C. The bail bonds of the accused shall stands canceled after expiry of six months only, as per

Section 437-A of Criminal Procedure code. MO.1/ 4 gold bangles,

MO.2/Atukula Haram, MO.3/gold balls chain, MO.4 / gold finger rings-3, MO.5/ gold ear studs-2, MO.6/ gold necklace-1, MO.7 / gold necklace-1, MO.8/ gold haram,MO.9/gold ear studs, MO.10/gold ettugolusulu ear studs – 1 pair,

MO.11/gold finger rings -5, MO.12 / gold baby bangles – 2, MO.13 / gold chains – 3 were already given to PW.1 as interim custody shall be made absolute after expiry of appeal time.

Dictated to Grade-I Stenographer of this court, transcribed by her, corrected

and pronounced by me in open Court, this the 1st day of April 2021.

Chief Metropolitan Magistrate, Visakhapatnam 11 C.C.NO.1760/2019 C.M.M Court, Visakhapatnam

APPENDIX OF EVIDENCE:

Names of witnesses examined on behalf of

Prosecution: Accused: P.W.1: Mohammad Khaja - NONE - P.W.2: Mohammad Kasim P.W.3: Mohammad Fayaz P.W.4: Hasina Begum P.W.5: Md.Raheema P.W.6: Md.Karima P.W.7: Md.Magwal P.W.8: V.Babji Rao

No. of documents marked for

Prosecution : Accused: Ex.P.1/ Report lodged by P.W.1. - NIL - Ex.P.2/ Signature available on the mediators report dt.20.4.2019 at 7.00 A.M. Ex.P.3/ FIR Ex.P.4/ Rough Sketch

Material Objects marked for

Prosecution: Accused: MO.1/ 4 gold bangles, MO.2/Atukula Haram, MO.3/gold balls chain, MO.4 / gold finger rings-3, MO.5/ gold ear studs-2, MO.6/ gold necklace-1, MO.7 / gold necklace-1, MO.8/ gold haram, MO.9/gold ear studs, MO.10/gold ettugolusulu ear studs – 1 pair, MO.11/gold finger rings -5, MO.12 / gold baby bangles – 2, MO.13 / gold chains – 3 . Chief Metropolitan Magistrate, Visakhapatnam 12 C.C.NO.1760/2019 C.M.M Court, Visakhapatnam

CALENDAR AND JUDGMENT

DISTRICT :: VISAKHAPATNAM

IN THE COURT OF CHIEF METROPOLITAN MAGISTRATE, VISAKHAPATNAM

C.C.NO.1760/2019

Date of offence:13.04.2019

Date of release on bail: On bail

Date of Filing: 02-05-2019 Date of Apprehension: 20-04-2019 Date of commencement of trial: 11-02-2020 Date of Close of trial: 24-03-2021 Date of Sentence or Order: 01.04.2021 Explanation for delayNo delay

Remarks:-Nil-

C.C.No.1760/2019 on the file of Chief Metropolitan Magistrate, Visakhapatnam against accused in Cr.No.130/2019 under Sections 380 or 411 of Indian Penal Code

The name of the complainant :State represented by the Inspector of Police, Dwaraka Sub-Division (Crimes), Visakhapatnam city The Name of the accused :Pasupuleti Lakshmi, W/o.late Suribabu, Parentage & Residence50 years, Kapu by caste, R/o.D.NO.13-1096/1, Apsara colony, Balaji nagar, Arilova, Visakhapatnam city.

Offence:Under Section 380 or 411 of Indian Penal Code. Finding:Accused found not guilty for the offence under Sections 380 or 411 of I.P.C.

Sentence In the result, accused is found not guilty for the offence punishable under Sections 380 or 411 of Indian Penal Code. Accordingly she is acquitted for the same under Section 248(1) of Cr.P.C. The bail bonds of the accused shall stands canceled after expiry of six months only, as per Section 437-A of Criminal Procedure code. MO.1/ 4 gold bangles,MO.2/AtukulaHaram, MO.3/gold balls chain, MO.4 / gold finger rings-3, MO.5/ gold ear studs-2, MO.6/ gold necklace-1, MO.7 / gold necklace-1, MO.8/ gold haram,MO.9/gold ear studs, MO.10/gold ettugolusulu ear studs – 1 pair, MO.11/gold finger rings -5, MO.12 / gold baby bangles – 2, MO.13 / gold chains – 3 were already given to PW.1 as interim custody shall be made absolute after expiry of appeal time.

CHIEF METROPOLITAN MAGISTRATE,

13 C.C.NO.1760/2019 C.M.M Court, Visakhapatnam

VISAKHAPATNAM

1 C.C.NO.299/2018 C.M.M Court, Visakhapatnam

IN THE COURT OF THE CHIEF METROPOLITAN MAGISTRATE,

VISAKHAPATNAM.

Present: Sri P.BHASKARA RAO,

Chief Metropolitan Magistrate,

Visakhapatnam

Thursday, the 1 st day of April 2021

C.C.NO.299/2018

This case coming on31-03-2021for virtual hearing before me in the presence of A.P.P for the complainant and of Sri K.Lakshmana Rao, Advocate

for the accused and the matter having stood over till this day for consideration

and the Court delivered the following:

JUDGMENT

a.The Serial No. of the case:C.C.No.299/2018 b.The date of offence :10.08.2018 c.The name of the :State represented by the Sub-Inspector of Police, I town (Crime) P.S., complainantVisakhapatnam city d.The name of the accused:Chebrolu Manikanta, S/o.Ramesh, age 22 years, Viswa brahmin by caste, D.No.22-73-1, Town Hall Road, Visakhapatnam.

e.The offence complained of:Under Sections 380 or 411 of Indian Penal Code. f.The plea of the accused &:When examined under Section 239 of their examination, if anyCr.P.C, accused pleaded not guilty. When accused was examined under Section 313 of Cr.P.C, he denied the incriminating material. g.Final order

1.The Sub-Inspector of Police, I town p.s., Visakhapatnam filed Final

Report in Cr.No.144/2018 under Sections 380 or 411 of Indian Penal Code, against the accused.

2. The brief facts of the prosecution case are as follows:

(a)The accused is residing at Town Hall Road at Visakhapatnam. The

Offence took place at Chengalaraopeta within I town police station limits.

LW.1/M.Satish is working as a Cashier in Amrutha Restaurant and Bar at

Dwaraka Nagar. On 10.08.2018 night after completion of night duty, he 2 C.C.NO.299/2018 C.M.M Court, Visakhapatnam came to his house and after dinner he spent some time with his smart phone and slept at about 2.00 A.M. On 11.08.2018 at about 4.15 hrs., he woke up and observed some person entered into the house. On verification he noticed that gold pusthula thadu and smart phone 10 .or G. Company was found missing. He approached I town police station and presented a report.

Basing on the report, police registered a case in crime No.144/18 under sec.380 IPC.,

b)During the course of Investigation, police visited the scene of offence and prepared rough sketch. He examined witnesses and recorded their statements. On 17.8.2018 at Kurpam Market junction, police arrested the accused and on the confession statement of the accused, recovered the stolen property i.e., gold pusthula thadu weighing 2 tulas and smart phone 10 or G from the possession of accused relates to crime No.144/18 under sec.380 IPC., in the presence of mediators. After completion of due formalities, accused forwarded to the court for remand. After completion of

Investigation, filed the final report.

3.The case was taken on file for the offence under Sections 380 or 411 of Indian Penal Code, against the accused and issued summons to him.

4. After made appearance of the accused, necessary copies of the documents have been supplied to him under Section 207 of Cr.P.C.

5.The accused was examined Under Section 239 of Cr.P.C and accordingly charge under Section 380 or 411 of Indian Penal Code read over and explained to the accused in Telugu, for which he pleaded not guilty and claimed to be tried.

6.During the course of trial, on behalf of the prosecution, P.Ws.1 to

P.W.5 were examined and Ex.P.1 to Ex.P.4 and M.Os.1 and 2 were marked.

7. After completion of prosecution evidence, the accused was examined under section 313 of Cr.P.C., through Blue Jeans and explained the 3 C.C.NO.299/2018 C.M.M Court, Visakhapatnam incriminating evidence and he denied the same and he did not choose to adduce any defence evidence on his behalf.

8. Heard the learned A.P.P and learned defence counsel through Blue

Jeans on 31.03.2021.

9. Point for consideration is that:

Whether the prosecution proved the ingredients under Section 380

or 411 of Indian Penal Code against the accused, beyond reasonable

doubt ? POINT:

10.The defacto Complainant/M.Satish was examined as PW.1 and marked Ex.P1 is the report and Mo.1 is gold pustulathadu and MO.2 is the smart phone. The mediators namely V.Hanumantha Rao and M.Srinivas were examined as Pws.2 and 3 and marked Ex.P2 is the mediators report. Ch.Uma kanth, Inspector of police, I town p.s., was examined as PW.4 and marked

Ex.P3/FIR in crime No.144/2018 under sec.380 IPC., K.Nemaram Babu/Sub-

Inspector of police was examined as PW.5 and marked Ex.P4/ Rough sketch.

11.The case of the prosecution is that LW.1/M.Satish is resident of

Chengalaraopeta within I town area. He was working as cashier in Amrutha

Restaurant and Bar and after completion of night duty, he was slept in the house. In the early hours, he woke up and found missing of gold pustulatadu and smart phone. He approached I town police station and presented a written report. During the course of Investigation, police arrested the accused in the presence of mediators and recovered the stolen property. The

Learned APP submitted that accused is liable to be punished under section 411 IPC., against the accused.

12. The case of the defence is that accused had not committed any offence. There is no corroboration in between PWs.1 to 3 to prove the charge under sec.380 or 411 IPC., against the accused. Both mediators are the stock mediators to the I town p.s., There are no special identification marks 4 C.C.NO.299/2018 C.M.M Court, Visakhapatnam on the seized property relates to crime No.144/2018. Prosecution has fails to prove the ingredients under secs.380 or 411 IPC., against the accused beyond reasonable doubt. Therefore, accused is entitled for acquittal.

13.On perusal of Ex.P1 report lodged by PW.1 stating that at about 4.15 P.M., he woke up and found main doors were kept open. He found missing of 2 tulas gold pustulathadu and smart phone. The unknown person committed theft of the property. Basing on Ex.P1 report, SHO/I town police registered a case in crime No.144/2018 under sec.380 or 411 IPC., on 11.5.2018. Column No.7 of the FIR is kept blank. Ex.P1 report made it clear defacto complainant did not suspect any person to mention the name in

Ex.P1 report.

14.P.W.1/M.Satish deposed that on 10-08-2018 he came to the house at about 10.00 PM and he saw Internet till 2 PM and thereafter he slept. He woke up at about 4:15 AM and he noticed somebody entered into his house and he verified the house. He found main door of the house kept open. On verification of the valuables, his wife’s gold pusthelathadu found missing and his smart phone also found missing. He lodged report before the police. Ex.P1 is the report lodged by him. M.O.1 is the gold pusthelathadu, M.O.2 is the smart phone. PW.1 clearly admitted that he does not know who committed theft of gold and cell phone. He does not know personally about the accused.

15. PW.2/V.Hanumantha Rao deposed that he is resident of Beach road, Visakhapatnam. He is doing business. On showing the signature available on the mediators report dt. 17-08-2018 at 9 AM is of him. He know the Manyam Srinivas. Police have seized Pusthelathadu and cell phone from the possession of accused under cover of mediators report. Another mediator and scribe signed before him. The contents of mediators report were happened in his presence. Ex.P2 is the mediators report. PW.2 clearly admitted that he put his signature on mediators report at the police station 5 C.C.NO.299/2018 C.M.M Court, Visakhapatnam after preparation of mediators report. He went to the police station on his personal work and at that time he saw the accused at the police station.

PW.2 admission is made it clear that he saw the accused in the police station and put the signature on the mediators report at the police station.

16.PW.3/M.Srinivasa Rao deposed that he is resident of I Town area.

Visakhapatnam. He is an Electrician. On showing the signature available on the mediators report dt. 17-08-2018 at 9 AM is of him. He know P.W.2. Police have seized Pusthelathadu and cell phone from the possession of accused under cover of mediators report in the Kurpam market area. Mediators report was drafted to that effect. The contents of mediators report were happened in his presence. PW.3 clearly admitted that he put his signature along with

PW.2 on mediators report at the police station after completion of drafting of mediators report. While he was attending electrical work in that locality,police asked him to sign on the mediators report and he saw the accused at the police station. PW.3 evidence is made it clear that PW.3 evidence is not corroborating with the mediators report/Ex.P2.

17. PW.4/Ch.Uma Kanth deposed that he has been working as

Inspector of Police, West Traffic P.S., Visakhapatnam. Previously he worked as Inspector of police, I town p.s., from 07.01.2017 to 06.08.2019. On 11.08.2018 at 10 A.M. while he was present in the police station, he received written report from complainant and basing on the report, he registered a case in crime No.144/2018 under sec.380 IPC., and issued FIR which is marked as Ex.P3. He endorsed the case to SI for investigation. PW.4 clearly admitted except registering the FIR he did not conduct any investigation in this case. PW.4 evidence is no way helpful to prove the case against the accused.

18.PW.5/ K.Nemaram Babu deposed that he has been working as SI of police, Special Branch, Visakhapatnam. Previously he worked as SI of police, 6 C.C.NO.299/2018 C.M.M Court, Visakhapatnam

I town crime P.S., during the relevant period. On 11.8.2018 LW.1/Matta

Satish came to the police station and presented a written report. Basing on the report, Inspector of police registered a case in crime No.144/2018 under sec.380 IPC., He endorsed the case to him for investigation. PW.5 further deposed that he visited the scene of offence and prepared rough sketch which is marked as Ex.P4. He secured the presence of other witnesses and recorded their statements. He along with mediators found the accused in a suspicious manner at Kurpam market junction on 17.08.2018 and enquired his name and other particulars. PW.5 further deposed that on search they found gold pusthelathadu and smart phone from the possession of accused.

He seized stolen property relates to crime No.144/2018 under sec.380 IPC., in the presence of both mediators. After observing due formalities, he forwarded the accused to the court for remand. After completion of

Investigation, he filed the final report. It was elicited in the cross examination that at about 8.00 A.M.,on 17.8.2018 he secured both mediators. The defence counsel suggested that PW.5 never arrested the accused in the presence of mediators and the same was denied. As per the evidence of

PW.5 he arrested the accused at Kurpam market at about 9.00 A.M.,in the presence of Hanumantha Rao and Srinivasa Rao. PWs.2 and 3 are the mediators did not support the contents of the mediators report. PWs.2 and 3 evidence is not corroborating with the Investigation officer evidence to prove the contents of mediators report. Mere marking of Ex.P2 is not sufficient to prove the case against the accused. There are no special identification marks to identify Mos.1 and 2 . T.Santosh Kumar scribe of the mediators report was not examined to prove the contents of the mediators report.

Prosecution has fails to prove the neighbouring house owners to prove the case against the accused.

7 C.C.NO.299/2018 C.M.M Court, Visakhapatnam

19.The alleged offence took place during mid night night on 10/11.8.2018. The Investigation Officer said to have recovered the stolen property from the possession of accused on 17.8.2018. The Investigation

Officer did not serve summons to both mediators. Ex.P2/Mediators report drafted at Kurpam market junction at about 9.00 A.M., PWs.2 and 3 deposed that they signed on the mediators report at the police station and saw the accused. The main aspect of recovery of stolen property and arrest of accused at Kurpam Market not proved separately. PW.5 evidence is not sufficient to prove the case against the accused. PWs.2 and 3 have identified their respective signatures on the mediators report but not supported the contents of mediators report.

20.As per the ingredients under Section 380 of Indian Penal

Code:

“ 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 ”

Thereis no direct evidence to prove that accused committed theft of gold ornament pustulathadu and smart phone in dwelling house of the defacto complainant to attract the ingredients under sec.380 IPC., against the accused. Prosecution has failed to prove the ingredients under sec.380

IPC., against the accused beyond reasonable doubt.

21. As per the ingredients under Section 411 of Indian Penal

Code :

“ Dishonestly receiving stolen property — Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment ”.

Prosecution has further fails to prove the recovery of stolen property from the possession of accused. Prosecution has failed to prove the 8 C.C.NO.299/2018 C.M.M Court, Visakhapatnam ingredients under sec.411 IPC., against the accused beyond reasonable doubt.

22.As per the Provision under sec.103 of Indian Evidence Act – Burden of proof as to particular fact. The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

23.The burden lies on the prosecution to prove the case against the accused. PW.1 did not state anything against the accused. PW.s.2 and 3 are the material witnesses to prove the recovery of stolen property. PWs.2 and 3 evidence is not corroborating with the contents of Ex.P2 mediators report. PWs.4 and 5 are the Investigation Officers who registered FIR and investigated the case. PW.5/Investigation Officer evidence is not corroborating with Ex.P2/Mediators report. PW.5 evidence is not corroborating with PWs.2 and 3/material witnesses. Mere assumption and presumption is not sufficient to prove the case against the accused. The prosecution has fails to examine any Independent witness to prove the offence. The Learned APP given up witnesses i.e., LW.2/Bala Sarojini and

Gowri Shankar.

24.On careful scrutiny of oral evidence of P.Ws.1 to P.W.5 coupled with documentary evidence of Ex.P.1 to Ex.P.4 and M.Os.1 and 2, prosecution has failed to prove the ingredients under Section 380 or 411 of Indian Penal

Code against the accused beyond reasonable doubt. Accordingly, the point is answered against the prosecution.

25. In the result, accused is found not guilty for the offence punishable under Sections 380 or 411 of Indian Penal Code. Accordingly he is acquitted for the same under Section 248(1) of Cr.P.C. The bail bonds 9 C.C.NO.299/2018 C.M.M Court, Visakhapatnam of the accused shall stands canceled after expiry of six months only, as per

Section 437-A of Criminal Procedure code. MO.1 is the gold pustulathadu and

MO.2 is the smart phone which were already given to PW.1/M.Satish as

Interim custody shall be made absolute after expiry of appeal time.

Dictated to Grade-I Stenographer of this court, transcribed by her, corrected

and pronounced by me in open Court, this the 1st day of April 2021.

Chief Metropolitan Magistrate, Visakhapatnam

APPENDIX OF EVIDENCE:

Names of witnesses examined on behalf of

Prosecution: Accused: P.W.1: Matta Satish - NONE - P.W.2: Veerni Hanumantha Rao P.W.3: Manyam Srinivas P.W.4: Ch.Uma Kanth P.W.5: K.Nemaram Babu

No. of documents marked for

Prosecution : Accused: Ex.P.1/ Report lodged by P.W.1. - NIL - Ex.P.2/ Mediators Report Ex.P.3/ FIR Ex.P.4/ Rough Sketch

Material Objects marked for

Prosecution: Accused: MO.1/ Gold Pusthulathadu MO.2/ Smart Phone. Chief Metropolitan Magistrate, Visakhapatnam 10 C.C.NO.299/2018 C.M.M Court, Visakhapatnam

CALENDAR AND JUDGMENT

DISTRICT :: VISAKHAPATNAM

IN THE COURT OF CHIEF METROPOLITAN MAGISTRATE, VISAKHAPATNAM

C.C.NO.299/2018

Date of offence:10.08.2018

Date of release on bail: On bail

Date of Filing: 09.11.2018 Date of Apprehension: 17-08-2018 Date of commencement of trial: 09.01.2020 Date of Close of trial: 25.03.2021 Date of Sentence or Order: 01.04.2021 Explanation for delayNo delay

Remarks:-Nil-

C.C.No.299/2018 on the file of Chief Metropolitan Magistrate, Visakhapatnam against accused in Cr.No.144/2018 under Sections 380 or 411 of Indian Penal Code

The name of the complainant :State represented by the Sub-Inspector of Police, I town (Crime) P.S., Visakhapatnam city The Name of the accused :Chebrolu Manikanta, S/o.Ramesh, Parentage & Residenceage 22 years, Viswa brahmin by caste, D.No.22-73-1, Town Hall Road, Visakhapatnam.

Offence:Under Sections 380 or 411 of Indian Penal Code. Finding:Accused found not guilty for the offence under Sections 380 or 411 of I.P.C.

Sentence In the result, accused is found not guilty for the offence punishable under Sections 380 or 411 of Indian Penal Code. Accordingly he is acquitted for the same under Section 248(1) of Cr.P.C. The bail bonds of the accused shall stands canceled after expiry of six months only, as per Section 437-A of Criminal Procedure code. MO.1 is the gold pustulathadu and MO.2 is the smart phone which were already given to PW.1/M.Satish as Interim custody shall be made absolute after expiry of appeal time.

CHIEF METROPOLITAN MAGISTRATE,

VISAKHAPATNAM