Sri P. Govardhan

1

IN THE COURT OF THE ADDITIONAL JUDICIAL MAGISTRATE OF I

CLASS, MANGALAGIRI.

Present:- Sri P.Govardhan

Spl. Judl. I Class Magistrate for Prohibition and Excise, Guntur

I/C Addl. Judicial Magistrate of I Class, Mangalagiri

Thursday this the 27 th day of October, 2016.

C.C. NO. 203 of 2012

Between:

The State: Sub Inspector of Police,

Thulluru Police Station.

(Cr.No. 134/2011). …Complainant

And

Mandapati Dasu, S/o Jogaiah, 34 years, Pedavadlapudi, Mangalagiri

Mandal, Guntur District.

… Accused

This case coming on 24-10-2016 before me for final hearing in the presence of the learned Assistant Public Prosecutor for complainant and of Sri Navajeevan, Advocate for Accused, upon hearing both sides, upon perusing the record and having stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

1.The Sub Inspector of Police, Thullu Police Station filed charge sheet against the accused for the offences punishable under Section 447,498-A of Indian Penal Code, Sections 156 (3) of Cr.P.C.

2. The brief allegations of the charge sheet are as follows:-

The marriage of PW1 was performed with accused in the year 2002. At the time of marriage accused was given Rs.3,00,000/- towards dowry, bike worth Rs.50,000/- including gold ornaments worth

Rs.50,000/-. For some time they lived happily and they were blessed with one daughter and one son. Accused got into the clutches of vices and started torturing PW1 and used to beat her. As PW1 failed to raise money towards dowry, Accused on one day necked out P.W1 from the house and PW1 was sent to her maternal home. In the month of

November, accused went to the house of PW1 and hurled threats against 2

PW1 saying that he would not allow P.W1 to his home unless she brings

additional dowry. Later PW1 lodged a private complaint in Court and the

same was forwarded to the SHO, Thulluru P.S., on point of jurisdiction.

Based on the complaint of PW1, PW5 registered as a case in Crime

No.134/2011 under Sections 447, 498-A, 323, 506 r/w 34 IPC r/w 156(3)

Cr.P.C, of Thulluru Police Station and investigated into. During the course of investigation, he examined five witnesses and recorded their statements under Section 161 Cr.P.C, prepared rough sketch. Basing on the evidence of witnesses the involvement of A2 to A4 is not proved, as per proceedings in C.No.8/Refer/SDPO-SAP/2012, dt. 6-2-2012 deleted their names and after completion of investigation, filed charge sheet. Hence the charge.

3.Initially this case (CC.203/12) was disposed off by the predecessor in officer and the matter went into appeal in Crl.Appeal

No.242/2014 and by virtue of judgment of Hon'ble II Addl.District Judge,

Guntur dated 9-2-2016 the matter is sent back to this court for retrial by recalling Investigating Officer and to give an opportunity to the accused to further cross examine the Investigating the Officer. Therefore, the

Investigating Officer i.e., PW5 was again recalled and further cross examined on 18-7-2016 then after hearing the learned Additional Public

Prosecutor and the accused this matter is posted for judgment.

4.Heard the arguments both sides.

5.Now the point determination are:

1.Whether the accused subjected PW1 to physical or mental cruelty and whether he demanded PW1 for property or valuable security ?

2.Whether the prosecution is able to prove the guilt of the accused of the offence under Section 498-A IPC beyond all reasonable doubt?

3. To what order?

6. POINT Nos.1 and 2 :- 3

The specific contentions of the prosecution are that from the date of marriage of 2nd daughter of PW2 accused began to harass PW1 for an amount of Rs.5,00,000/- and even suspected the character of

PW1. The prosecution further contended that the accused tied the hands PW1 at his home to a cot and even took PW1 with him to college due to suspicion. Therefore, PW1 gave report at Repalle Police Station and after compromise was effected in the said case, PW1 stayed with accused some time, and later accused necked her out to bring

additional dowry. Later in the month of November, the parents of

accused and the accused came to the house of PW1 and demanded

additional dowry. Hence, prosecution contended that PW1 and PW2 have

supported the case of prospection as such the accused is liable to be convicted.

7.The contention of the learned counsel for the accused is that the rough sketch was undated, entire investigation is table investigation.

With regard to core incident the contention of the learned counsel for accused is that even though PW2 states that at the time of marriage of his second daughter, accused started harassing PW1, the said aspect was not mentioned in Ex.P1 and even the place of demand of dowry was not mentioned. Further, the learned counsel for the accused contended that there is a previous litigation in PLC 160/11 on the file of District

Legal Services Authority, Guntur and PW1 approached the police to threaten the accused in view of previous litigation in PLC 160/11 and also

HMOP. 183/11 in October, 2011. The learned counsel for the accused

also contended that many exaggerations, contradictions and omissions were elicited from the evidence of PW1 and PW2 and no body was examined as witnesses in the locality where PW1 and accused resided, as such this false case was filed by PW1 immediately after receipt of notice in HMOP 183/2011.

8.The offence alleged against the accused is U/Sec.498-A of IPC.

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Section 498-A IPC reads as follows:

“498-A : Husband or relative of husband of a woman subjecting her to cruelty:-

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

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

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

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

Explanation (a):- Section 498-A IPC deals with cruelty of nature which subjects such woman to cruelty and cause physical or mental injury.

Explanation (b):- Section 498-A IPC deals with cruelty of the nature of harassing the of woman which forced her to meet any unlawful demand for property or valuable security:-

9. Therefore, as per explanations (a) and (b) of Section 498-A IPC if the wife/PW1 was subjected to cruelty of such a nature that it should cause gave mental agony to PW1 or it makes PW1 to commit suicide or to suffer physical and mental grave injury, or if the prosecution establishes that PW1 subjected to meet unlawful demand, it would found the accused guilty and the degree of cruelty as defined U/Sec.498-A is 5 not mere cruelty and it should be grave which prompted PW1 to suffer harassment at the hands of accused.

10.With regard to the facts on hand, P.Ws 1 and 2 testified that on 2-6-2002 the marriage of PW1 with accused was performed at

Pedavadlapudi village and at the time of marriage Rs.3,00,000/- of cash,

Hero Honda Splender Bike, one gold chain and one gold ring were given towards dowry to the accused. The evidence of PW2 assumes importance regarding the initial matrimonial life of PW1 and accused. As per PW1, herself and accused lived together at Repalle for one year after marriage and later they resided at Nagaram and blessed with one male and one female children. As per PW1, the marriage occurred on 2- 6-2002, and the marriage of her sister occurred on 28-5-2011 on which date the accused started harassing PW1 to bring additional dowry of

Rs.5,00,000/-. PW1 also testified that due to harassment of accused she lodged a report at Repalle Police Station on 18-6-2011 where the accused was called and admonished.

11.Regarding the initial period of marriage, PW2 specifically testified that for 9 years after marriage PW1 and accused lived happily. Ex.P2 cash payment receipt for purchasing Hero Honda Bike was marked through PW2 and as per the evidence of PW2 the said Hero Honda Bike was presented at the time of marriage. Even though the said receipt is there, in the initial days of marriage PW1 and the accused lived happily and for any marriage some customary exchanges would took place.

With regard to exchanges no proof was filed, but only the receipt was filed regarding the purchase of motor cycle but the fact which assumes importance is that for 9 years after marriage PW1 and accused lived happily which shows there was no iota of harassment by the accused during the initial years of marriage i.e., for 9 long years. Hence, in view of absence of documentary proof to show about the factum of giving dowry and gold, the mere fact that the Hero Honda Bike was given to 6 the accused would not by itself is not fact to be considered within the purview of explanation of cruelty. Hero Honda Bike would be given for welfare of PW1 as well as the accused and PW1 and accused stayed happily for 9 years without any tussle.

12.PW1 admits that she completed her graduation in distance education by the year 2013 and by the time of marriage she studied 10th standard. She also swore that she appeared for examination at

Vijayawada and Tenali and her children studied at Repalle and they used to go to school by bus. All these aspects show that during the matrimonial life of PW1, accused cooperated and allowed PW1 to complete her graduation by allowing her to appear examinations at

Vijayawada and Tenali and her children went to the school by school bus.

Therefore, the said alleged presentation of motor cycle is not factor to find the guilt of the accused within the purview of cruelty.

13. With regard to core issue, PW1 herself swore in her cross examination that the disputes started between PW1 and accused at the time of marriage of 2nd daughter of PW2. PW1 further admits that her brother and sister stayed at her house at Repalle on during their studies.

Even though PW1 testified in her cross examination that accused used to say that she has not pursued higher studies and because of that he is alone is running the family, the said aspect was not stated to police during recording of Sec.161 Cr.P.C. nor in Ex.P1 private complaint. As per the evidence of PW1 she lodged only one report at Thulluru P.S., and even though she went to Repalle police station, she never handed over to S.I., Thulluru, the report which was given by her at Repalle P.S. PW1 also admits that she never informed any higher authorities when

Thulluru P.S., refused to register a crime basing on the report lodged by her.

14. PW1 filed a private complaint and it was forwarded to S.I. of

Police. As seen from the evidence of PW5, Ex.P3 is the FIR based on 7 complaint given by PW1, admittedly one pre litigation case was filed by the accused vide PLC No.160/11 in District Legal Services Authority,

Guntur. PW1 specifically testified that she received notice in HMOP 183/11 on 20-11-2011. She further testified in her cross examination that her husband instituted HMOP 183/11 on the file of Hon'ble Senior

Civil Judge Court, Guntur. As per her evidence on 10-11-2011 her

mother-in-law and sister-in-law along with accused came to her house and demanded Rs.5,00,000/- and as per Ex.P3 FIR private complaint was presented on 29-11-2011. Even Ex.P3 reveals that the date of occurrence is from 10-11-2011, and the said date was specifically deposed by PW1 as the date on which her mother-in-law and sister-in- law along with accused came to her house. Even though said incident occurred on 10-11-2011, PW1 presented private complaint before this court only on 29-11-2011. Even the report given by PW1 to the SHO,

Thulluru was not marked and brought to the light. When the occurrence is dated 10-11-2011, the reason for delay would normally to place the matter before elders for reunion. Even the said reason was not mentioned in column No.8 of FIR. In column No.8 it was only mentioned that the reason for delay is that the case was referred by the Magistrate.

It shows that there was a delay on the part of PW1, but one fact which assumes importance is the final alleged incident which occurred on 10-11-2011. Admittedly PW1 received notice on 26-11-2011 and a private complaint was presented on 29-11-2011 i.e., two days after receipt of notice in HMOP. Moreover, the notice in HMOP was given by the accused not for divorce and it was for restitution of conjugal rights which shows the intention of the accused for matrimonial reunion. Such efforts on the part of PW1 were not elicited from PW1.

15.PW2 agreed in her cross examination, that he does not know what are the efforts put forward by PW1 for solving the disputes with the accused and PW1 is able to take decisions on her own. He only 8 admits filing of PLC 160/11 and it was closed on 22-10-2011 with finding to settle the dispute out of court. He appeared before District Legal

Services Authority, Guntur on 22-11-2011. Even though it was elicited in his cross examination that the matter was never put before elders for mediation, PW3 only testified that PW1 and accused lived together happily for some time and later disputes crept between PW1 and accused. PW1 specifically testified that the accused demanded to bring

Rs.5,00,000/- from her parents. However it was suggested to PW3 that he stated before police in his statement that he does not know anything about the alleged incident. PW4 is another independent witness who swore only about the marriage of PW1 and accused and quarrel between PW1 and accused wherein accused demanded Rs.5,00,000/-.

PW2 is not a eye witness to the alleged occurrence dt. 10.11.2011. PW1 never deposed the name of PW4 as eye witness when accused, mother- in-law of PW1, sister-in-law of PW1 went to the house of PW1 on 10-11-2011. Ex.D4 contradiction was marked through PW4 and it was suggested to PW4 that he never stated to police that the accused demanded additional dowry of Rs.5,00,000/-.

16. The evidence of Investigating Officer assumes importance for the reason that number omissions were pointed out to him which were elicited from the cross examination of PW1 and PW2. The specific evidence of PW1 is that accused used to suspect her and tied her to cot and he has taken PW1 to his college where he was working as Lecturer.

Certainly it is a serious act to harass the wife provided that the said aspect was mentioned in the earliest report or to the police. Ex.P1 is private complaint. All the events were narrated in Ex.P1, but the important incident to suspect her fidelity was never mentioned in report nor in the statement recorded by police U/Sec.161 Cr.P.C statement and the same was affirmed by PW5 who is Investigating Officer. Even 9 according to PW1 she did not mention that accused had tussle and went away from there. Even PW5 agrees that PW2 never mentioned in his 161 Cr.P.C statement that he presented gold and cash at the time of marriage of PW1, and PW2 did not mention before police that accused quarreled with PW1 that they gave more amount of dowry to his second daughter than PW1. Even PW2 swore that she went to the house of accused and taken back PW1. PW5 agrees that PW2 never mentioned in the statement that when the accused necked out PW1 he brought her back. As PW1 did not mention before PW5 about the previous presentation of report at Thulluru P.S., and said aspect was not brought to light. When PW1 and PW2 specifically deposed about core issue that accused started harassing PW1 on the day on which the marriage of 2nd daughter of PW2 was performed, that should be mentioned to the police, in this case, such material aspect was not stated to the police by PW1 and PW2 and PW5 agrees that the said material events were not stated to him.

17. The learned counsel for accused placed reliance upon a decision “Gunda Koteswara Rao Vs. State of Andhra Pradesh, reported in 2008 (2) ALD (Crl.) 582 (AP), wherein the Hon'ble High Court specifically held that even though the FIR need not contain all the material allegations regarding additional dowry, all the aspects relating to alleged demand for dowry have to be mentioned in FIR.

The learned counsel for accused also placed reliance on another decision of Jharkhand High Court between Hamidan Khatoon &

Others Vs. Stae of Jharkhand & another, reported in II (2004) DMC 751, in the said decision at Paragraph Nos. 7 and 8, it was held that the

FIR was lodged after receipt of notice of divorce and it was lodged with ulterior motive.

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18.In this case admittedly private complaint was presented 3 days after receipt of notice of HMOP and the report given to Thulluru P.S., was not brought to light and only private complaint was marked. Three days after receipt of notice in HMOP, PW1 gave report and in the report also the material aspect of demand of Rs.5,00,000/- on the date of marriage of 2nd daughter of PW2 was not mentioned. Only one incident was mentioned which is dated 10-11-2011 wherein the accused entered into house of PW1 and demanded additional dowry of Rs.5,00,000/-.

However, the said incident was categorically not established by the prosecution. Hence, in view of the evidence of Pws 1 and 2 with material omissions and contradictions, their evidence is not enough to hold that

PW1 was subjected cruelty within the purview of Explanations (a) and (b) of Sec.498-A IPC. Hence, prosecution failed to prove the guilt of accused beyond all reasonable doubt. Accordingly the points are answered.

19.POINT NO.3:- In the result, accused is found not guilty of the offences punishable under Section 498-A of IPC and he is acquitted of the same under Section 248 (1) Cr.P.C. The bail bond of accused shall stand canceled after six months from the date of this judgment.

Dictated to the Stenographer Category -III, transcribed by her, corrected

and pronounced by me in the open Court this the 27th day of October, 2016.

Sd. P. Govardhan.

SPL. JUDICIAL MAGISTRATE OF I CLASS

FOR PROHIBITION AND EXCISE, GUNTUR.

FAC. Additional Junior Civil Judge, Mangalagiri.

APPENDIX OF EVIDENCE

WITNESSS EXAMINED

FOR PROSEUCITON FOR DEFENCE: --NONE.

PW1- M. Nagamani

PW2- M. Yohan

PW3- P. Ananda Rao

PW4- M. Koteswara Rao

PW5- K.Veera Swamy, SI of Police, Thulluru P.S.

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DOCUMENTS MARKED

FOR PROSEUCITON:

EX.P1 is the Complaint given by PW1 dt. 29-11-2011 EX.P2 is the Bike purchase receipt dt.1-6-2002 EX.P3 is the Original FIR dt. 7-12-2011 EX.P4 is the Rough Sketch EX.P5 is the Proceedings of SDPO, Sattenapalli

FOR DEFENCE:

Ex.D1 : Marked portion of Sec.161 Cr.P.C. Statement of PW2 Ex.D2 : Marked portion of Sec.161 Cr.P.C. Statement of PW2 Ex.D3 : Signature of PW1 ;on maintenance petition Ex.D4 : Marked portion of Sec.161 Cr.P.C. Statement of PW4

MATERIAL OBJECTS ::

NIL.

Sd. P. Govardhan.

SPL. JUDICIAL MAGISTRATE OF I CLASS

FOR PROHIBITION AND EXCISE, GUNTUR.

FAC. Additional Junior Civil Judge, Mangalagiri.

//True Copy//

SPL. JUDICIAL MAGISTRATE OF I CLASS

FOR PROHIBITION AND EXCISE, GUNTUR.

FAC. Additional Junior Civil Judge, Mangalagiri.

IN THE COURT OF THE ADDL. JUDL. I CLASS MAGISTRATE FOR : MANGALAGIR

CALENDAR AND JUDGMENT

DISTRICT: GUNTUR. C.C.NO.203/12 DATES OF -------------------------------------------------------------------------------------------------------------------------- Offence Filing Appearance Released Commencement Closure of Sentence On bail of trial trial or order As per orders in CA 241/2014 on the file of II Addl. District and Sessions Judge, Guntur dated 9-2-2016 by giving a finding to recall the investigating officer and give an opportunity to the accused to further cross examine him and also directed to permit both the parties to adduce further evidence and dispose the record within a period of six months.

Prior to 3-2-2011-- 2-7-2014 -- 18-7-2016 18-7-2016 27-10-2016 -------------------------------------------------------------------------------------------------------------------------- Explanation for the delay :- As per orders in CA 241/2014 on the file of II Addl. District and Sessions Judge, Guntur dated 9-2-2016 by giving a finding to recall the investigating officer and give an opportunity to the accused to further cross examine him and also directed to permit both the parties to adduce further evidence and dispose the record within a period of six months. On 18-7-2016 PW5 was cross examined, and prosecution side evidence is closed, heard both sides. On 27-10-2016 judgment is

pronounced. Hence the delay.

------------------------------------------------------------------------------------------------------------------------------ Name of the Complainant :-The State: Sub Inspector of Police,

Thulluru Police Station.

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(Cr.No. 134/2011).

------------------------------------------------------------------------------------------------------------------------------ Name of the accused Father’s Name Calling Religion Age Village

Mandapati Dasu, S/o Jogaiah, 34 years, Pedavadlapudi, Mangalagiri

Mandal, Guntur District.

------------------------------------------------------------------------------------------------------------------------------ Nature of Offence :- Offence punishable under Section 498-A IPC

Plea of accused :- Not guilty. Finding: - Found not guilty.

SENTENCE OR ODER:- In the result, accused is found not guilty of the offences punishable under Section 498-A of IPC and he is acquitted of the same under Section 248 (1) Cr.P.C. The bail bond of accused shall stand canceled after six months from the date of this judgment.

Sd. P. Govardhan.

SPL. JUDICIAL MAGISTRATE OF I CLASS

FOR PROHIBITION AND EXCISE, GUNTUR.

FAC. Additional Junior Civil Judge, Mangalagiri.

Copy submitted to : The Hon’ble Chief Judicial Magistrate, Guntur. Copy to the Inspector of Police, Women P.S., Guntur Urban

//True Copy//

SPL. JUDICIAL MAGISTRATE OF I CLASS

FOR PROHIBITION AND EXCISE, GUNTUR.

FAC. Additional Junior Civil Judge, Mangalagiri.

13

1

IN THE COURT OF THE ADDITIONAL JUNIOR CIVIL JUDGE, MANGALAGIRI

Present:- Sri. P. Govardhan

Spl Judl., Magistrate of I Class for Excised, Guntur FAC Additional Junior Civil Judge, Mangalagiri.

Tuesday, this the 14th day of December, 2016.

M.C.NO. 46/2014

Danda Appireddy, S/o late Venkata Subbareddy,

Hindu, R/o Ravela Village, Tadikonda Mandal. ...Petitioner

Vs.

Danda Madan Mohan Reddy, S/o Danda Appireddy, Hindu, Age 36 years, Employee at Reddy's lab, R/o Saradhi Residency, 4th floor, Flat No. 404,

backside H.D.C.F Bank, Miyapur, Hyderabad. ...Respondent

This petition coming for hearing before me in the presence of Sri G.

Seetharami Reddy Advocate for the petitioners and of Sri R. Kishore, Advocate for the respondent and the respondent having remained exparte, upon hearing, upon perusing the record and having stood over for consideration till this day, this Court made the following:-

O R D E R

This petition is filed by the petitioner against his son Danda Madan

Mohan Reddy.

2.The facts in brief as seen from the petition are as follows:

The respondent is the son of the second wife of the petitioner and the petitioner married the mother of the respondent after the death of his first wife.

The petitioner, his second wife and the respondent lived jointly and subsequently shifted the family from Ravela village to Miyapur for the studies of the respondent.

The petitioner worked as Supervisor in Sangareddy, Medak District and due to old- age ailments of the petitioner, he shifted the family from Medak District to

Miyapur. The petitioner owned Ac 2.00 cents of land at Ravela village, the petitioner along with the respondent jointly sold the said land and from out of the proceeds, they jointly lent Rs.1,60,000/- to the respondent's maternal uncle and 2 with the remaining amount Ac 12-00 of land was purchased by the petitioner at

Venkatagiripalem popularly called as “Allumadugu” land with the amount given by the petitioner registered in the name of the respondent. Due to heart attack and old age ailments the petitioner is unable to eke out his family and the respondent sent the petitioner from out of the house, as such, the petitioner joined with his daughter at Ravela village. The petitioner's daughter and her husband are unable to maintain the petitioner. Therefore, the petitioner's seeks monthly maintenance of Rs.8,000/- per month to meet his medical expenses and for his maintenance and in the alternative he seeks to give Ac 5-00 of land from the amount given by the petitioner, as the respondent enjoyed the benefits of the said land but refused to maintain the petitioner.

3.Regarding the means of the respondent, the petitioner contends that the respondent is getting salary of Rs. 50,000/- as he works as private employee in

Reddy's Lab, Hyderabad and he gets annual income of Rs.1,50,000/- from agricultural land.

4.The respondent received notice and filed counter. The contentions of the respondent in brief are as follows:

Soon after the birth of the respondent the children of the petitioner born through his first wife and relatives of the first wife of petitioner raised disputes to hand over all the property to the children of the petitioner born through the first wife of the petitioner. Even they demanded the petitioner to send away the respondent to maternal grand mother's house at Pedaparimi village and the petitioner never attended to the needs of the respondent. Therefore, the maternal uncles and maternal grand parents of the respondent have brought up the respondent and taken care of his welfare.

5.In fact the children of the petitioner i.e legal representatives of late Ranga

Reddy, Lakshmi, Brahma Reddy and Sridevi conspired together with the petitioner 3 to file this false case and to grab the property of petitioner and out of his earnings, the petitioner owns an extent of Ac 11-00 cents of land and RCC buildings apart from vacant site at Ravela village and having Rs. 3,00,000/- along with the gold ornaments worth Rs.10 lakhs. The petitioner and the children of the petitioner born through his first wife necked out the mother of the respondent about six months ago without any fault and without any justifiable cause. The properties of the petitioner were taken forcibly by the children of the petitioner born through his first wife. The mother of the respondent and the petitioner joined the respondent about six months ago and lived with him and during that period, the respondent observed that the petitioner is having close contacts with the children born though his first wife and on inquiries he came to know that the petitioner has joined the respondent and his mother with preplanned motive. The petitioner is intending to claim share in the self acquired properties of the respondent and to evade legitimate share of the of respondent from out of the property grabbed by the children of the petitioner born through his first wife. The present market value of the properties owned by the petitioner is over Rs.10 crores and the petitioner is hale and healthy and having sufficient means to maintain himself, the worth of two RCC buildings owned by the petitioner is Rs. 50 lakhs. The petitioner never spent any amount for the education of the respondent.

The petitioner retained the gold worth Rs. 6 lakhs which belongs to the mother of the respondent, the petitioner intentionally did not file any petition against the children born through his first wife even though they were enjoying the joint family properties. Hence the respondent contends that he is having liabilities exceeding his assets as such he is not in a position to provide maintenance to the petitioner and contends that the petition is liable to be dismissed.

6.On behalf of the petitioner, PW.1 is examined and Exs.P1 to P9 are marked. On behalf of the respondent, R.Ws.1 and 2 were examined and Exs.R1 to

R5 are marked.

7.Heard the learned counsel for the petitioner and respondent.

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8.Now the point for considerations are:

1. Whether the respondent is having sufficient means to maintain the petitioner and whether the petitioner has no means to maintain himself?

2. Whether the respondent neglected to maintain the petitioner and whether he has obligation to maintain the petitioner, in the circumstances stated by the petitioner?

3. To what relief, the petitioner is entitled to?

9.POINT No.1:-

The marriage of the petitioner with his second wife is not in dispute. Even there is no dispute with regard to the children born to the petitioner through his first wife and also the respondent who was born out of the wedlock of the petitioner with his second wife. The paternity or maternity issues are not in dispute.

10.With-regard to the means of the respondent, the learned counsel for the respondent contends that the petitioner is having sufficient properties to maintain himself and even the respondent filed Exs. R1 to R4 which shows that the petitioner is having sufficient property and conveyed the same to children and retained only the property mentioned in Ex.R1. The contention of the learned counsel for the petitioner is that if the petitioner has sufficient means to maintain himself, there is no necessity for him to move from pillar to post, lamenting for maintenance for his sustenance, as he has no other go, the petitioner touched the door steps of the court of justice.

11.Ex.R1 is the Land Revenue Record issued by the Tahsildar in the name of the petitioner. Ex.R1 contains recitals that the petitioner is absolute owner of Ac 0-20 cents of land. Except that no other document was filed by the respondent to show that the petitioner is having sufficient means. If the petitioner is not having sufficient means, then the means of the respondent has to be seen. Regarding the 5 capacity of the respondent to maintain himself and regarding the means of the respondent, the petitioner filed Ex.P1 which is the certified copy of the sale deed executed by the petitioner along with the respondent, the said document was marked in the cross-examination of R.W1/respondent. As per the said document

dt. 29.06.02 the petitioner executed sale deed along with the respondent and two

others in the name of Thota Bhaskararao. The respondent initially denied the said transaction but when the document was confronted to the respondent, he admitted that he signed Ex.P1. The contention of the petitioner is that he sold Ac 2-00 of land at Ravela village and the said transaction was jointly done by the petitioner and the respondent. When the transaction was joint transaction, certainly, the probable inference which can be drawn is that the proceeds will be distribute among the persons who sold the said land. R.W1 in his cross- examination admits that he executed a document along with the petitioner and his mother relinquishing all further rights in the properties. Even though, R.W1 did not say the particulars of the properties relating to which he relinquished his rights, he did not file any document except Ex.R1 that the land mentioned in it stands in the name of the petitioner. It also show that there was a consent given by the respondent in respect of some of the properties. Admittedly the children born through the first wife of the petitioner have to get some arrangement regarding the property and certain arrangements were made, however the particulars of the said arrangements were never brought on record by the petitioner nor by the respondent but the record shows that the petitioner owns only Ac. 0-20 cents of land but no other land. The respondent contends that the petitioner owns two RCC buildings, Ac 11-00 of land, cash of Rs. 3 lakhs and gold worth Rs.10 lakhs but nothing was elicited from the cross-examination of P.W1 to strengthen the contentions of the respondent.

12. Even though, the respondent never admitted that he purchased some land at “Allumadugu” of Nellore District, he admits in his cross-examination dt. 24.2.16 that he has Ac 10.46 cents of dry land in his name at Allumadugu of Nellore

District. He admits that the Revenue authorities maintain a register with details of 6 the crop raised in the land. He further admits that himself along with the petitioner and his paternal grand mother by name Danda Kanakamma executed a relinquishment deed releasing all rights in the house situated at Ravela village in favour of the sons of first wife of P.W1 and he further admits that except two houses, there are no houses in the name of P.W1 at Ravela. Therefore, the arrangements were already made by P.W1 in favour of the sons of first wife of

P.W1 in respect of the two houses at Ravela village. Ex.P8 is certified copy of registered sale deed dt. 17.12.2004 in favour of the respondent executed by one

Aravapalli Pattabhi Rama Rao and Ex.P9 is the certified copy of adangal in the name of respondent in D. No. 304/1 of Allumadugu. All the said aspects would make it clear that even though the respondent is a private employee, as per

Ex.R5 salary certificate, he gets a salary of Rs. 10,000/- he has Ac 10.46 cents of dry land and certainly, he would fetch some amount from the said land as such in view of the previous joint transaction by the petitioner and the respondent together under Ex.P1 and in the light of the particulars of the properties elicited from the cross-examination of R.W1, the conclusion which can be drawn is that the respondent is having sufficient means to maintain himself and the income from 20 cents of land of the petitioner is not enough for the maintenance of the petitioner. Accordingly the point is answered.

13.POINT No.2:-

The aspect of the neglect on the part of the respondent in maintaining the petitioner can be seen from the cross-examination of R.W1. Strait way in the cross-examination the respondent admitted that he has responsibility to look after welfare of his father. The said admission is clear that it is the respondent who has to maintain the petitioner.

14. The respondent never admitted that himself along with P.W1 and his second wife resided together and P.W1 looked after the respondent well. Even though it was suggested to R.W1 that himself along his mother and P.W1 resided as tenants in the house of one Pulagama Peda Pullaiah at Pedaparimi village, the respondent denied the same but admits that he pursued his 9th and 10th standards 7 at Pedaparimi village. The respondent denied the suggestion put forth by the petitioner to him and the said suggestion reads as follows: “It is not true to suggest that during those days, P.W1 resided along with us working as Tractor driver with one Vanga Sambi Reddy”. The said Vanga Sambi Reddy is maternal uncle of the respondent. R.W2 who is an independent witness testified that R.W1 pursued his studies since 6th standard at Pedaparimi village and P.W1 is not residing at Pedaparimi village and during said stay P.W1 looked after the welfare of the respondent only for four months. However in the cross examination R.W2 admits that petitioner worked as driver to the tractor of Vanga Sambi Reddy. The said admission itself makes clear that respondent wanted to conceal the said fact also but truth came from the lips of R.W2 who admits that the petitioner went as driver for the tractor of Vanga Sambi Reddy.

15.It was elicited from the cross examination of R.W1 that P.W1 is suffering from heart ailments and he is unable to work and earn due to health ailments. He admits that P.W1 is under continuous medication. He further admits that as per

Ex.P6 which is health card issued by C.E.O dt. 05.04.08, himself, PW1 and his mother by name Chilakamma are living in a joint family that aspect also makes clear that the petitioner and his second wife and the respondent lived as joint family for considerable period. In fact, in the counter itself it was mentioned that the petitioner and the children of the petitioner born though his first wife necked out the mother of the respondent about six months back. Further it was mentioned in para 5 of the counter that the mother of the respondent and the petitioner has joined the respondent about six months back and lived with him.

The recitals of para 5 of the counter are enough to show that the respondent is under obligation to maintain his mother as well as the petitioner. Probably due to the arrangement of the petitioner conveying some property to the children born through first wife of the petitioner, the respondent might have some grievance.

However a father need not be compelled to the stay particularly with a particular son or daughter. When the son is an earning member, he is duty bound to maintain the father who is suffering from old age ailments. Moreover, the 8 respondent himself admits that his mother and the petitioner stayed with him and he admits in his cross-examination that he has responsibility to look after welfare of his father and the conclusion which can be drawn is that he has to look after

P.W1 as per his own admission. It was specific contention in the counter that the petitioner has no ailments but the respondent himself in the evidence admits that the petitioner is suffering from heart ailments and the petitioner is not able to work and earn due to health ailments and he has no means to maintain himself.

Accordingly the point is answered.

POINT No.3:-

16. With-regard to the quantum of maintenance one more point was raised by the learned counsel for the respondent that the petitioner lived for a considerable period at Hyderabad, as such, this court has no jurisdiction. However as rightly contended by the petitioner, in para 4 of his evidence, the respondent himself admits that in the year 2010 the petitioner permanently came to Ravela village.

That aspect itself is enough to show that the petitioner resided at Ravela village which comes under the jurisdiction of this court and the question of the jurisdiction has no relevancy to decide this case in view of the admission made by the respondent during his evidence.

17.With-regard to the quantum of maintenance to be payable by the respondent, the age of the petitioner is 74 years and certainly he has to meet the reasonable expenses towards his medicines and other problems which arise in view of old age ailments. Admittedly the petitioner is residing in the house of P.

Peda Pullaiah as such the shelter need not be looked into. Therefore, for meeting the medical expenses and for food and clothing if a maintenance of Rs.5,000/- per month is awarded to the petitioner that would be sufficient to meet his expenses in a month. The petitioner has not claimed any interim maintenance from the date of filing of this petition till the date of order as such the quantum of maintenance which is awarded to the petitioner is payable by the respondent from the date of this order. Accordingly the point is answered.

9

18.In the result, the petition is allowed by granting monthly maintenance of Rs.5,000/- to the petitioner, to be payable by the respondent from the date of this order.

Dictated to the Stenographer, Grade-III, transcribed by her, corrected and

pronounced by me in the Open Court, this the 14th day of December, 2016.

Sd/- P. Govardhan

FAC ADDL. JUDL. MAGISTRATE OF I CLASS,

MANGALAGIRI.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONER:FOR RESPONDENT:

PW.1 : D. Appireddy.R.W1:D. Madan Mohana Reddy R.W2: A. Sudhakara Reddy.

DOCUMENTS MARKED

FOR PETITIONER:

Ex.P1 : Sale Deed Ex.P2 : Office copy of legal notice dt. 01.08.2014 Ex.P3 : Unserved legal notice with endorsement not claimed. Ex.P4 : Angioplasty report of the witness issued by Star Hospitals. Ex.P5 : Discharge summary report of the witness issued by star hospitals. Ex.P6 : Health card of the witness issued by CEO, Argoyasree Health Care Trust. Ex.P7 : Aadhar card of the witness. Ex.P8 : Certified copy of registered sale deed dt. 17.12.04 in favour of respondent executed by one A. Pattabhi Rama Rao. Ex.P9 : Certified copy of adangal in the name of respondent.

For Respondent:

Ex.R1 : is the ROR (Land Revenue record) issued by Tahsildar in the name of D. Appireddy. Ex.R2 : is the ROR issued by Tahsildar in the name of mother of D. Appireddy through Mee seva. Ex.R3 : is the ROR issued by Tahsildar in the name of the 2nd son of D. Appireddy through Mee seva. Ex.R4 : is the ROR issued by Tahsildar in the name of the wife of 1st son of D. Appireddy. Ex.R5 : is the Salary certificate issued by Green park hotels and resorts, Ltd., Hyderabad in the name of the respondent dt. 1.12.2014.

Sd/- P. Govardhan

FAC AJCJ, Mangalagiri. //True copy//

FAC AJCJ, Mangalagiri.

(CC.288 of 2013) 1

IN THE COURT OF ADDITIONAL JUNIOR CIVIL JUDGE, MANGALAGIRI

Present: Sri P.Govardhan

Spl. Judicial First Class Magistrate,

Prohibition & Excise, Guntur.

FAC Additional Junior Civil Judge, Mangalagiri.

Friday, this the 1 st day of April, 2016

C.C.No. 288 of 2013

Between :

The State : Sub Inspector of police,

Mangalagiri Town Police station.… …COMPLAINANT.

(Cr.No.313 of 2014)

And

1. Kurra Venu,

S/o Narasimharao, 52 yrs, Yadava

D.No.1.1065, Park Road, 7th Lane, Mangalagiri.

2. Kurra Saikrishna,

S/o Venu, 26 yrs, Yadava,

D.No.1.1065, Park Road, 7th Lane, Mangalagiri.

… … ACCUSED.

**********

This case is coming before me for final hearing on this day in the presence of learned APP for the Complainant and of Sri R.Kishore,Advocate for

A1 & A2, upon hearing both sides and the matter having stood upon for consideration till this day, this court delivered the following.:

(CC.288 of 2013) 2

J U D G M E N T

01. The Sub Inspector of police, Mangalagiri Town police station filed charge sheet in Cr.No.313 of 2012 against A1 & A2 for the offences punishable under sections 406, 420, 198, 506 r/w 34 of IPC .

02. The case of the prosecution, succinctly, is that :

a)In the month of September,2011, the defacto complainant proposed to purchase some site before P.W.1-Komma Lava Kumar. On coming to know the same, A1 approached the defacto complainant and placed a proposal before him to sell Ac.0-70 cents of land in S.No.143/3B1 of Mangalagiri claiming the property belongs to his late maternal grand father and he is the only the successor of it. Believing the words of A1, the defacto complainant agreed to purchase the same and paid advance sale consideration of

Rs.1,60,000/- to A1. To that effect, A1 issued receipt also. Subsequently, when the defacto complainant wanted to get register the same, surprisingly he came to know that the said property was already sold away by the grand father of A1 during his life time. As there is no other go, the defacto complainant asked A1 to return the advance amount. But, A1 paid deaf ear and postponed the same by saying unbelievable reasons. Then, the defacto complainant issued a legal notice to A1 through his counsel. On receiving the same, A2 being the son of A1 approached the defacto complainant and requested time for payment of the said amount, but later, they failed to pay the same. Then, the defacto complainant placed the matter before elders, wherein, A1 promised to pay the same on or before 24-09-2012. Thereafter, they did not choose to pay the amount, in turn, they used to threaten the defacto complainant with dire consequences that they will see his end. Then, the defacto complainant filed a complainant before this court, which was forwarded to the Station House

Officer, Mangalagiri Town P.S., for investigation and report u/s.156 (3) of

Cr.P.C.

(CC.288 of 2013) 3

b)Based on the said CFR No.7340/2012, the investigating officer i.e., L.W.7-Head Constable, Mangalagiri Town P.S., registered the same as a case in Cr.No.313 of 2012 for the offences under sections 406, 420, 506 r/w 34 of IPC and investigated into. During the course of investigation, he examined the witnesses in this case, prepared rough sketch and handed over the investigation to L.W.8-SI of Police, Mangalagiri Town P.S., Later, L.W.8 took up investigation from L.W.7, obtained related documents from Sub-Registrar,

Mangalagiri and finally, he arrested the accused on 15-04-2013, produced them

before the court for judicial remand. On completion of investigation, he filed

charge sheet. Hence, the charge.

03.On receipt of charge sheet, this case was taken on file against the accused for the offences under sections 406, 420, 506 r/w 34 of IPC.

04.On appearance of the accused, copies of documents were furnished to A1 & A2 as contemplated under Section 207 of Criminal Procedure Code, 1973 (herein after referred as 'Cr.P.C.' for the sake of brevity).

05.When examined under section 239 of Cr.P.C., the accused denied the allegations levelled against them. After perusing the entire material on record and on hearing both sides, charges had been framed against the accused under sections 406, 420, 506 r/w 34 of IPC, which were read over and explained to the accused in Telugu, for which, they pleaded not guilty and claimed the case to be tried.

06.During the course of trial, on behalf of the prosecution, P.Ws.1 to 6 were examined and got exhibited Exs.P1 to P6. The evidence of L.W.5-

Siramdasu Seshagiri has given up by the learned Assistant Public Prosecutor as not available. The evidence of L.W.1-Chennupati Venkata Durga Prasad was closed as he died.

(CC.288 of 2013) 4

07.On closure of evidence let in by the prosecution, the accused were examined under section 313 of Cr.P.C., with regard to the incriminating material available against them, for which, their plea was total denial and reported no defence evidence.

08.Heard both sides.

09. Now point germane for consideration is :

“Whether the prosecution is successful in bringing home the

guilt of A1 & A2 for the charges framed against them under

Sections 406, 420, 506 r/w 34 of IPC, beyond all reasonable

doubt?

10. POINT :

a)To establish its case, the prosecution has examined P.Ws.1 to 6, out of which, P.W.1 is the mediator between A1 and defacto complainant.

P.W.2 is the independent witness. P.W.3 worked under the ownership of defacto complainant. P.W.4 is the adjacent land owner of L.W.5-Siramdasu

Seshagiri. P.Ws.5 & 6 are the investigating officers, who registered the case, arrested the accused and filed charge sheet.

b)Coming to the appreciation of evidence available on record, the accused are charged for the offences under sections 406, 420, 506 r/w 34 of

IPC. With regard to the offence under section 506 of IPC is concerned, even though it was alleged in the private complaint i.e., Ex.P3 that A1 & A2 are threatening the defacto complainant, but, defacto complainant was not examined before the court as he died, as such, his evidence was closed. P.Ws.1 & 3 even though had deposed about A1, but they never deposed that A1 & A2 threatened the defacto complainant with dire consequences. Hence, there is no evidence brought on record to corroborate the version of prosecution that

A1 & A2 threatened the defacto complainant.

(CC.288 of 2013) 5

c)With regard to the offence under section 406 of IPC which deals with Criminal Breach of Trust and the offfence under section 420 of IPC which deals with punishment for cheating, the evidence is common for both the said sections, as such, the said two ingredients would be discussed under common discussion.

d)The very grievance of the defacto complainant as seen from

Ex.P3 private complaint is that A1 even had knowledge about the earlier transactions and even managed to get the Encumbrance certificate, without reflection of the earlier transactions and for wrongful gain, sold the property, which does not belong to him. As seen from the evidence of P.W.6, who is the investigating officer, he specifically testified that he submitted a requisition

before the Sub-Registrar, Mangalagiri to ascertain the actual owner of the

disputed land and even on 11.1.2013 he received reply from the Sub-Registrar,

Mangalagiri stating that the disputed land is in the name of one Saramdasu

Kanaka Lakshmi, who is the wife of L.W.5-Saramdasu Seshagiri. However, the said witness i.e., L.W.5-Saramdasu Seshagiri was not examined by the prosecution for the reasons that he was not available, as such, his evidence is given up by the prosecution. Therefore, when the said witness can not be examined by the prosecution, the evidence left on record is only that of the investigating officer i.e., P.W.6.

e)The evidence of P.W.6 reveals that he received letter from the Sub-Registrar, Mangalagiri. Surprisingly, the said letter sent by the Sub-

Registrar, Mangalagiri was not filed by P.W.6 before the court. He categorically testified that in the first line of his cross-examination that he had not filed reply given by the Sub-Registrar, Mangalagiri based on the requisition given by

P.W.6. He even admitted that as per Ex.P6 Encumbrance Certificate issued by the Sub-Registrar, Mangalagiri, the land in Survey No.143/3B1 is not shown and he even admits that A1 & A2 are no way related to the said land. Even P.Ws.1 & 3 had not testified about the Survey number, where Ac.0-70 cents of land is situated. P.W.6 filed Ex.P6 Encumbrance Certificate issued by Sub-Registrar,

Mangalagiri, but he, himself agrees that the land in Survey No.143/3B1 is not (CC.288 of 2013) 6 shown in Ex.P6. He further swore in his cross-examination that he never seized any documents from A1 & A2. Therefore, P.W.6 had only collected documentary evidence from the Sub-Registrar, Mangalagiri, but the connected documentary evidence except Ex.P6 Encumbrance Certificate, was not filed by P.W.6 before the court for better appreciation of the facts.

f)The best witness is the defacto complainant in this case.

But, he died, as such, he was not examined by the prosecution. P.Ws1 & 3 testified that A1 approached P.W.1 to sell Ac.0-70 cents of land and the defacto complainant agreed to purchase the same for sale consideration of

Rs.8,50,000/-,wherein an advance of Rs.1,30,000/- and also further Rs.30,000/- was paid to A1 towards sale consideration. The evidence of P.Ws.1 & 3 is that at the office of Sub-Registrar, Mangalagiri, they came to know that the same was sold out by the fore fathers of A1 and A1 falsely represented that he is the owner of the said land.

g)With regard to return of sale consideration, that aspect can not be determined in this case. As far as, the return of sale consideration is concerned, that relief can only sought from competent Civil Court. So far as this case is concerned, this court has to find out whether there is an intention of cheating on the part of A1 and A2 from the inception. As regards A2, the specific testimony of P.W.3 is that A2 has no connection with the transaction, even P.W.3 admits that in his cross-examination that A1 & A2 never executed an agreement of sale with P.W.1 and P.W.1 testified that there was no documentary proof to show that A1 entered into agreement of sale with the defacto complainant. P.W.1 testified that A1 agreed for execution of agreement of sale in favour of one third person and executed in the name of the person shown by the defacto complainant. If at all, the said agreement for sale is brought to light, the recitals of the agreement would disclose about the intention of the contending parties. But, the evidence of P.W.1 itself denotes that the agreement of sale was made in favour of third party and the said third party was not cited as witness nor examined before the court. At least, if the certified copy of the said agreement of sale was filed before the court to (CC.288 of 2013) 7 appreciate the real facts of the case, that would be a different point for consideration.

h)When the specific contention of the prosecution is that at the

Sub-Registrar's Office, Mangalagiri, the parties came to know about the earlier sale transactions by the fore fathers of A1. If at all, A1 had intentionally and conveniently obtained Encumbrance Certificate without disclosure of the earlier sale transactions, certainly P.W.6 might have examined the Sub-

Registrar, Mangalagiri to bring the facts into light. But, in this case, no official witnesses from the office of Sub-Registrar, Mangalagiri were examined to know whether any conspiracy took place for the application of Encumbrance

Certificate and for discrepancies in issuance of Ex.P6 Encumbrance Certificate.

i)More over, the entire incident as per Ex.P4 FIR occurred from 19-10-2011. But, the Station House Officer, Mangalagiri Town P.S., received information at police station on 11.11.2012. Ex.P3 is a private complaint, which was forwarded to the police and certainly, the delay in forwarding the private complaint to the police can be understood. However, the private complaint was filed before the Court on 12-10-2012 in CFR.7340. It shows that from 19-10-2011 till 12-10-2012 almost one year had lapsed and P.Ws.1 & 3 never explained the reason for such an enormous delay in presenting a private complaint. As the defacto complainant is not alive, it is the duty of the investigating officer at least to assign the reasons for such an enormous delay in giving the report. If at all, the defacto complainant had knowledge of the alleged deception on the part of A1, he would have take instantaneous step to give a report at the earliest point of time, but he kept silent and gave a report at a belated stage. It also shows that enormous delay would certainly weakens the case of prosecution. More over, sufficient material was not enclosed to

Ex.P3 private complaint to commence the investigation on proper lines. Even, during the course of investigation, no incriminating material worth mentioning was collected to hold that A1 had an intention of deception right from the beginning and with that intention, along with A1, he proceeded to the office of

Sub-Registrar, Mangalagiri to get registration of the land.

(CC.288 of 2013) 8

j)In view of the discussion made supra, this court is of considered opinion that the evidence placed by the prosecution on record is not suffice to fasten the guilt to A1 & A2 for the charges framed against them under

Sec.406, 420, 506 r/w 34 IPC. Thus, it is inevitable to hold that the prosecution failed to establish before the court that the accused cheated and committed criminal breach of trust and also threatened the defacto complainant with dire consequences and thereby committed an offences under Sections 406, 420, 506 r/w 34 IPC. Hence, A1 & A2 are entitled for an order of acquittal on the ground of benefit of doubt. Point is answered accordingly, in favour of A1 & A2 and as against the prosecution.

11.In the result, A1 & A2 are found not guilty for the offences under

Sections 406, 420, 506 r/w 34 of IPC and accordingly, they are acquitted under

Section 248(1) Cr.P.C. The bail bonds of A1 & A2 shall stand canceled. Accused shall furnish a bond under Sec. 437-A Cr.P.C, that they shall appear before the

Appellate court in the event they receive summons within the six months from today.

Dictated to the Personal Assistant, transcribed by her, corrected and

pronounced by me in the open court on this the 1 stday of April, 2016.

Sd/- P.Govardhan

Spl. Judicial First Class Magistrate, Prohibition & Excise, Guntur. FAC Additional Junior Civil Judge, Mangalagiri.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution : For Accused :

P.W.1 : Komma Lava Kumar None.

P.W.2 : Kancherla Prakasarao

P.W.3 : Aluri Venkanna Babu (CC.288 of 2013) 9

P.W.4 : Mekala Kruparao

P.W.5 : V.Srinivasa Rao, Head Constable, Mangalagiri Town PS

P.W.6 : Ch.Ravi Babu, Sub-Inspector of Police, Mangalagiri Town PS

DOCUMENTS MARKED

For Prosecution :

Ex.P1 : Receipt issued by A1 towards advance Sale consideration of

Rs.1,60,000/-

Ex.P2 : Section 161 Cr.P.C., statement of P.W.2

Ex.P3 : Complaint copy in CFR.No.7340/2012

Ex.P4 : FIR in Cr.No.313/2012 of Mangalagiri Town P.S.,

Ex.P5 : Rough sketch.

Ex.P6 : Certificate of Encumbrance issued by the Sub-Registrar, Mangalagiri.

For Accused :

---Nil---

MATERIAL OBJECTS

---Nil---

Sd/- P.Govardhan

Spl. Judicial First Class Magistrate, Prohibition & Excise, Guntur. FAC Additional Junior Civil Judge, Mangalagiri.

// True copy //

Spl.JFCM,P & E, Guntur FAC AJCJ, Mangalagiri.

CALENDAR AND JUDGMENT

IN THE COURT OF THE ADDL.JUNIOR CIVIL JUDGE, MANGALAGIRI

C.C. No. 288 of 2013

1. Offence : 19-10-2011

2. Filing: 11-11-2012

3. Apprehension of Accused : 15-04-2013

4. Commencement of Trial : 02-01-2014

5. Closure of Trial : 03-03-2016

6. Judgment: 01-04-2016

7. Complainant: The State : Sub- Inspector of police,

Mangalagiri Town PS (Cr.No.313 of 2012)

8. Name of accused : 1. Kurra Venu, S/o Narasimharao, 52 yrs, Yadava D.No.1.1065, Park Road, 7th Lane, Mangalagiri.

2. Kurra Saikrishna, S/o Venu, 26 yrs, Yadava, D.No.1.1065, Park Road, 7th Lane, Mangalagiri.

9. Offence: U/Secs. 406, 420, 506 r/w 34 of IPC

10. Plea of accused : NOT GUILTY

11. Finding: NOT GUILTY

12. Sentence or Order :

In the result, A1 & A2 are found not guilty for the offences under Sections 406, 420, 506 r/w 34 of IPC and accordingly, they are acquitted under Section 248(1) Cr.P.C. The bail bonds of A1 & A2 shall stand canceled. Accused shall furnish a bond under Sec. 437-A Cr.P.C, that they shall appear before the Appellate court in the event they receive summons within the six months from today.

13. Explanation for delay:

After appearance of accused, copies of documents were furnished to them as contemplated U/Sec.207 Cr.P.C on 27.06.2013 On 30.10.2013, they were examined U/sec.239 Cr.P.C. for the offences U/secs.406, 420, 506 r/w 34 of IPC. On 07-10-2015 P.W.1 was examined Ex.P1 was marked. On 28-10-2015 P.W.2 was examined and Ex.P2 was marked. On 19-11-2015 P.W.3 was examined. On 11-01-2016 P.W.4 was examined. 18-01-2016 P.W.5 was examined and Exs.P3 & P4 were marked. On 03-03-2016 P.W.6 was examined and Exs.P5 & P6 were marked and closed the prosecution evidence on the same day. On 10.03.2016, accused were examined U/s.313 Cr.P.C, for which, they denied and reported no defence. Heard arguments on 30.03.2016. Judgment

pronounced on 01-04-2016. Hence, the delay.

Sd/- P.Govardhan

Spl. Judicial First Class Magistrate, Prohibition & Excise, Guntur. FAC Additional Junior Civil Judge, Mangalagiri.

Copy submitted to :

The Hon'ble Chief Judl. Magistrate, Guntur.

1(CC. No.425/2012)

IN THE COURT OF ADDITIONAL JUNIOR CIVIL JUDGE,

MANGALAGIRI

Present: Sri P.Govardhan Spl. Judicial First Class Magistrate, Prohibition & Excise, Guntur. FAC Additional Junior Civil Judge, Mangalagiri.

Tuesday, this the 29th day of March,2016.

C.C.No.425/2012

Between:-

State: Sub-Inspector of Police, (Cr.No.78/2010 of Thulluru P.S.)

..Complainant.

And

Kattapogu Bhushanam, S/o Venkateswara Rao, @ Pethuru, Ex-Branch Post Master, Mandadam village, Kuragallu village, Mangalagiri Mandal.

.. Accused.

********

This case is coming before me for final hearing on this day in the presence of Learned Assistant Public Prosecutor for State and Sri

R.Kishore, Counsel for the accused, upon hearing both sides and matter have stood upon for consideration till this day, this court delivered the following:

J U D G M E N T

01.The Sub-Inspector of police, Thulluru Police station, filed a charge sheet in Cr.No.78/2010 for the offence punishable under 2(CC. No.425/2012) section 409 of Indian Penal Code, 1860 (herein after referred as 'IPC' for the sake of brevity) against the accused.

02.The case of the prosecution in a nut shell is that:

a)On02-08-2005,L.W.5-TelukuntaNarisireddy,

Superintendent of Post Offices, Tenali Division went to the Branch Post

Office, Mandadam village and came to know that the accused, who worked as Branch Post Master at Mandadam village during the period from 31-03-2002 to 27-07-2005 had misappropriated an amount of

Rs.90,493-85/- pertaining to Savings Bank (SB), Recurring Deposits (RD) Time Deposits (TD) and telephone bills after collecting from the concerned persons and thereby committed criminal breach of trust.

Later, after thorough enquiry, L.W.1-Paragati Venkata Swamy, Asst.,

Superintendent of Police, Mangalagiri Sub-Division, Mangalagiri presented a report before Thulluru Police on 28-06-2010.

b) Based on the report of the defacto complainant, Sub-

Inspector of Police, Thulluru P.S., registered the same as a case in

Cr.No.78/2010 and investigated into. During the course of investigation, he examined the witnesses and recorded their statements. Finally on 11-10-2010 he arrested the accused and produced him before the court for judicial custody. After completion of investigation, he filed charge sheet against the accused. Hence, the charge.

03.On receipt of charge sheet, this case was taken on file for the offence under Section 409 of IPC against the accused.

04.On appearance of the accused, copies of documents were furnished to him as contemplated under Section 207 of Criminal

Procedure Code, 1973 (herein after referred as 'Cr.P.C.' for the sake of brevity).

3(CC. No.425/2012)

05.When examined under section 239 of Cr.P.C., the accused denied the allegations levelled against him. After perusing the entire material on record and on hearing both sides, charges had been framed against the accused under section 409 of IPC, which were read over and explained to the accused in Telugu language, for which, he pleaded not guilty and claimed the case to be tried.

06.During the course of trial, on behalf of the prosecution, P.Ws.1 to 3 were examined out of the six cited witnesses in the charge sheet and Exs.P1 to P15 were exhibited. The evidence of

L.Ws.3 & 5 namely K.Vijaya Kumari and T.Narasireddy was closed as police failed to serve summons inspite of ample opportunities. The evidence of L.W.4-Vemuri Vara Prasada Rao was closed as he died.

07.On closure of evidence let in by the prosecution, the accused was examined under section 313 of Cr.P.C., with regard to the incriminating material available against him, for which, he denied and reported no defence evidence.

08.Heard both sides.

09.Now the point for determination is :

•Whether the prosecution is fruitful in bringing home the guilt of the accused for the offence punishable under section 409 of IPC beyond reasonable doubt?

10.POINT:

a)To establish its case, the prosecution has examined

P.Ws.1 to 3, out of which, P.W.1 is the defacto complainant. P.W.2 is 4(CC. No.425/2012) the independent witness. P.W.3 is the investigating officer, who registered the case, arrested the accused and filed charge sheet.

b)The crux of the prosecution story is that the accused, who worked as Branch Post Master at Mandadam village during the period from 31-03-2002 to 27-07-2005 had misappropriated an amount of Rs.90,493-85/- pertaining to Savings Bank (SB), Recurring

Deposits (RD) Time Deposits (TD) and telephone bills after collecting from the concerned persons and thus, committed criminal breach of trust.

c) Section 405 of IPC defines Criminal Breach of Trust.

The essential ingredients of Section 405 of IPC are “firstly speaks that there should be entrustment of property, or with any dominion over property, secondly there should be dishonest misappropriation or converts to his own use that property and thirdly such dishonest misappropriation of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged”.

Sec.409 of IPC defines the punishment for criminal breach of trust by a public servant.

d) Adverting to the entrustment of the property is concerned, the evidence of P.W.1 is that the accused worked as Branch

Post Master, Mandadam village from 31-03-2002 to 27-07-2005 and during that tenure, he misappropriated the amounts pertaining to

Savings Bank, Recurring Deposits, Time Deposits and Telephone bills.

P.W.1 further testified that his predecessor by name T.Narisireddy conducted preliminary enquiry and submitted his report to the

Superintendent of Post Offices, Guntur. P.W.1 testified that the modus

Operindi adopted by the accused is that he accepted deposits, made relevant entries in the pass books and did not credit the same to the departmental accounts.

5(CC. No.425/2012)

e)It is the contention of the prosecution that the documents speak about the dishonest misappropriation of amount by the accused and Exs.P4 to P15 are the said documents produced by

P.W.1 along with the report, which contains entries and they reveal that the amount misappropriated by the accused was not at all credited to the departmental accounts.

f)The contention of the learned counsel for the accused is that there was enormous delay in registering the FIR and P.W.1 presented a report on 28.6.2010 after lapse of 5 years from the date of the alleged offence. The learned counsel further contended that the evidence of P.W.1 itself shows that there was no misappropriation committed by the accused as alleged and also specifically contended that the accused paid the entire amount, which was alleged to be misappropriated and in fact, no offence was committed by the accused.

g)Even though, P.W.1 had categorically deposed about the Modus Operindi adopted by the accused, that the latter used to accept the deposits, made relevant entries in the pass books, but never credited to the departmental accounts, P.W.2, who is one of such depositors testified that he deposited Rs.6,600/- in the recurring deposit account @ Rs.600/- per month in the year 2004 and in

June,2005, he was informed that the amount was not deposited for two months by then. He also stated that corresponding entry was made in

RD account book, but in fact, amount was not deposited in his account.

He also specifically deposed that the amount was returned to him in the year 2009. Though P.W.2 had deposed about the irregular entries made in his account, he never reported the same to the police and the same is admitted by him. There could be many reasons for not reporting the matter and even P.W.2 being aggrieved person kept silent without reporting the matter to police and in fact, during his 6(CC. No.425/2012) cross-examination, he admitted that no loss was incurred by him. He also further admitted that the amount which he deposited was returned to him along with interest.

h)P.W.1, who is the crucial witness to depose about the alleged misappropriation, admits in his cross-examination that he never stated to the police about the names of the persons or the account numbers relating to which the alleged offence of misappropriation occurred. He also made categorical admission that the amount will not be kept with Branch Post Master and on maturity of account, amount will be disbursed from the Head Post Office. He even admits that the balance summary will be sent to Head Post Office and there will be no chance of misappropriation. Further, with regard to procedural aspects involving loss to the exchequer, P.W.1 admits that there is quarterly inspection at Branch Post Office and during the tenure of the accused from 2002 to 2005, no misappropriation was made out against the accused in quarterly inspection as well as in annual audit.

i)A major infirmity in the case of the prosecution is that

P.W.1 himself admits that the alleged offence took place between 31.03.2002 to 27.07.2005. P.W.3 admits that the report was given on 28.06.2010 and the date of the alleged offene was not mentioned in

Ex.P1. He even admits that he never visited the office of P.W.1 and he only received documents from P.W.1, which were exhibited as Exs.P4 to P15. However, P.W.1 never testified about the said exhibits, in fact the minute aspects, such as the date of deposits, irregular entries and non-remission of amounts to the exchequer, would be within the knowledge of P.W.1. But, P.W.1 had not at all testified about the said documents even though he admits that Exs.P4 to P15 were handed over by him to the police and in fact, the same was affirmed by P.W.3.

If at all, there was misappropriation on the part of the accused, when

P.W.1 has knowledge of misappropriation, he would have been given report at the earliest point of time i.e., on any date immediately after 7(CC. No.425/2012) 27.07.2005. But, his evidence is quite contrary to the version of prosecution. Even in Ex.P1, the specific illustrations were mentioned alleging misappropriation committed by the accused. During his evidence, P.W.1 is totally silent about the specific acts of misappropriation committed by the accused. He only testified that the accused paid the entire amount. Even when, there was a systematic quarterly inspection and annual audit in the office, the question of misappropriation does not arise and also P.W.1 admits that as the amount was never kept with the Branch Post Master and on maturity of the account, the amount would be disbursed from the Head Post Office.

j)With regard to registering the FIR is concerned, it is pertinent to mention here that P.W.1 presented a report on 28.06.2010 and the alleged period of misappropriation is from 31.03.2002 to 27.07.2005. Hence, there is an enormous delay of about 5 years in presenting report and the reason for delay was never explained by

P.W.1 nor by the investigating officer. More over, the evidence of P.W.1 is full of surmises and infirmities and P.W.2, who is alleged to be the victim in the hands of the accused under the guise of misappropriation, did not file any report against the accused before the police. Further more, the investigation in this case did not yield anything to support the case of prosecution.

k)In the light of the above discussion, as a whole, the prosecution could not place any material on record to establish that the accused misappropriated the amounts relating to subscribers and thereby caused criminal breach of trust. Hence, this court is of the considered opinion that the prosecution has miserably failed to establish the guilt of the accused beyond all reasonable doubt for the offence punishable under section 409 of IPC and hence, the accused is entitled for an order of acquittal on the ground of benefit of doubt.

8(CC. No.425/2012)

Point is answered accordingly in favour of the accused and as against the prosecution.

11.In the result, the accused is found not guilty for the offence punishable under Section 409 of IPC. Accordingly, he is acquitted under section 248(1) of Cr.P.C. His bail bond shall stands cancelled. Accused shall furnish a bond u/s 437-A Cr.P.C, that he shall appear before the appellate court in the event he receive summons within six months from today.

Dictated to Stenographer Grade -III, transcribed by her, corrected

and pronounced by me in the open court on this the 29th day of March,2016.

Sd-/ P.Govardhan

Spl. Judicial First Class Magistrate, Prohibition & Excise, Guntur. FAC Additional Junior Civil Judge, Mangalagiri.

Appendix of evidence Witnesses examined

For Prosecution :-

P.W.1 : Paragati Venkata Swamy

P.W.2 : Vasimalla Prabhudas

P.W.3 : J.Ch.Venkateswarlu, Sub-Inspector of Police, Thulluru P.S.,

For Defence :- --Nil--

Documents marked

For Prosecution :-

Ex.P1/-- : Report of P.W.1 9(CC. No.425/2012)

Ex.P2/-- : Draft police report, which P.W.1 handed over to

Superintendent of Post Offices, Guntur.

Ex.P3/-- : FIR in Cr.No.78/2010 of Thulluru P.S.,

Ex.P4/-- : Preliminary report dt.04.08.2005 submitted by Sri D.Narsi

Reddy

Ex.P5/-- : RE Pass book with A/c.No.135428

Ex.P6/-- : Statement of Ch.Nageswara Rao dt.22-08-2005

Ex.P7/-- : Copy of ledger maintained with A/c.No.135428

Ex.P8/-- : RD Pass Book with Account No.136385

Ex.P9/-- : Statement of V.Prabhu Das dt.22.08.2005.

Ex.P10/-- : Copy of Ledger maintained in Account No.136385

Ex.P11/-- : RD Pass Book with Account No.1388191

Ex.P12/-- : Statement of K.Vijayakumari dt.22.08.2005

Ex.P13/-- : Copy of ledger maintained with account No.1388191

Ex.P14/-- : RD Journal book from 16-05-2005 to 09-08-2005.

Ex.P15/-- : SB Journal book, Mandadam from 06-8-2003 to 24-07-2005.

For Defence :- ---Nil---

MATERIAL OBJECTS MARKED

---Nil---

Sd-/ P.Govardhan

Spl. Judicial First Class

Magistrate,

Prohibition & Excise, Guntur. FAC Additional Junior Civil Judge, Mangalagiri.

CALENDAR AND JUDGMENT

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE :: MANGALAGIRI

10(CC. No.425/2012)

CALENDAR IN C.C.425/2012

Date of Offence : 28-06-2010 Date of Report : 28-06-2010 Date of arrest of Accused : 11-10-2010 Date of Release of accused on bail : 22-10-2010 Date of commencement of Trial : 16-04-2014 Date of close of Trial : 16-02-2016 Date of sentence or order : 29-03-2016 Crime No. and Name of P.S. : Cr.No.78/2010 of Thulluru P.S. Name of the Complainant : State : Sub-Inspector of Police, Thulluru P.S..

Description of Accused

NoName of the Father’s NameAgeCallingResidence .accused Kattapogu Venkateswara --Ex-Branch Mandadam (V) BhushanamRao @ PethuruPost Kuragallu (V) MasterMangalagiri (M) Section of Law : U/Section 409 of IPC Plea of Accused : Pleaded not guilty Finding of Court : Found not guilty

Sentence or Order :

In the result, the accused is found not guilty for the offence punishable under Section 409 of IPC. Accordingly, he is acquitted under section 248(1) of Cr.P.C. His bail bond shall stands cancelled. Accused shall furnish a bond u/s 437-A Cr.P.C, that he shall appear before the appellate court in the event he receive summons within six months from today.

Explanation for delay :

This case was filed on the file of Additional Junior Civil Judge Court, Mangalagiri, and taken on file for the offence section 409 of IPC. Copies furnished to the accused on 21-06-2013 and the accused was examined under section 239 of Cr.P.C., on 03-03-2014. On 18-08-2015 P.W.1 was examined and Exs.P1 & P2 were marked. On 28-01-2016 P.W.2 was examined. On 16-02-2016 P.W.3 was examined and Exs.P3 to P15 were marked and closed the prosecution side evidence. On 25-02-2016 the accused were examined under section 313 of Cr.P.C., Arguments of APP were heard on 15-03-2016. Arguments of defence were heard on 24-03-2016. Judgment pronounced on 29-03-2016. Hence, the delay.

Sd-/ P.Govardhan

Spl. Judicial First Class Magistrate, Prohibition & Excise, Guntur. FAC Additional Junior Civil Judge, Mangalagiri.

Copy submitted to:- The Hon'ble Chief Judicial Magistrate, Guntur.

1(CC. No.425/2012)

IN THE COURT OF ADDITIONAL JUNIOR CIVIL JUDGE,

MANGALAGIRI

Present: Sri P.Govardhan Spl. Judicial First Class Magistrate, Prohibition & Excise, Guntur. FAC Additional Junior Civil Judge, Mangalagiri.

Tuesday, this the 29th day of March,2016.

C.C.No.425/2012

Between:-

State: Sub-Inspector of Police, (Cr.No.78/2010 of Thulluru P.S.)

..Complainant.

And

Kattapogu Bhushanam, S/o Venkateswara Rao, @ Pethuru, Ex-Branch Post Master, Mandadam village, Kuragallu village, Mangalagiri Mandal.

.. Accused.

********

This case is coming before me for final hearing on this day in the presence of Learned Assistant Public Prosecutor for State and Sri

R.Kishore, Counsel for the accused, upon hearing both sides and matter have stood upon for consideration till this day, this court delivered the following:

J U D G M E N T

01.The Sub-Inspector of police, Thulluru Police station, filed a charge sheet in Cr.No.78/2010 for the offence punishable under 2(CC. No.425/2012) section 409 of Indian Penal Code, 1860 (herein after referred as 'IPC' for the sake of brevity) against the accused.

02.The case of the prosecution in a nut shell is that:

a)On02-08-2005,L.W.5-TelukuntaNarisireddy,

Superintendent of Post Offices, Tenali Division went to the Branch Post

Office, Mandadam village and came to know that the accused, who worked as Branch Post Master at Mandadam village during the period from 31-03-2002 to 27-07-2005 had misappropriated an amount of

Rs.90,493-85/- pertaining to Savings Bank (SB), Recurring Deposits (RD) Time Deposits (TD) and telephone bills after collecting from the concerned persons and thereby committed criminal breach of trust.

Later, after thorough enquiry, L.W.1-Paragati Venkata Swamy, Asst.,

Superintendent of Police, Mangalagiri Sub-Division, Mangalagiri presented a report before Thulluru Police on 28-06-2010.

b) Based on the report of the defacto complainant, Sub-

Inspector of Police, Thulluru P.S., registered the same as a case in

Cr.No.78/2010 and investigated into. During the course of investigation, he examined the witnesses and recorded their statements. Finally on 11-10-2010 he arrested the accused and produced him before the court for judicial custody. After completion of investigation, he filed charge sheet against the accused. Hence, the charge.

03.On receipt of charge sheet, this case was taken on file for the offence under Section 409 of IPC against the accused.

04.On appearance of the accused, copies of documents were furnished to him as contemplated under Section 207 of Criminal

Procedure Code, 1973 (herein after referred as 'Cr.P.C.' for the sake of brevity).

3(CC. No.425/2012)

05.When examined under section 239 of Cr.P.C., the accused denied the allegations levelled against him. After perusing the entire material on record and on hearing both sides, charges had been framed against the accused under section 409 of IPC, which were read over and explained to the accused in Telugu language, for which, he pleaded not guilty and claimed the case to be tried.

06.During the course of trial, on behalf of the prosecution, P.Ws.1 to 3 were examined out of the six cited witnesses in the charge sheet and Exs.P1 to P15 were exhibited. The evidence of

L.Ws.3 & 5 namely K.Vijaya Kumari and T.Narasireddy was closed as police failed to serve summons inspite of ample opportunities. The evidence of L.W.4-Vemuri Vara Prasada Rao was closed as he died.

07.On closure of evidence let in by the prosecution, the accused was examined under section 313 of Cr.P.C., with regard to the incriminating material available against him, for which, he denied and reported no defence evidence.

08.Heard both sides.

09.Now the point for determination is :

•Whether the prosecution is fruitful in bringing home the guilt of the accused for the offence punishable under section 409 of IPC beyond reasonable doubt?

10.POINT:

a)To establish its case, the prosecution has examined

P.Ws.1 to 3, out of which, P.W.1 is the defacto complainant. P.W.2 is 4(CC. No.425/2012) the independent witness. P.W.3 is the investigating officer, who registered the case, arrested the accused and filed charge sheet.

b)The crux of the prosecution story is that the accused, who worked as Branch Post Master at Mandadam village during the period from 31-03-2002 to 27-07-2005 had misappropriated an amount of Rs.90,493-85/- pertaining to Savings Bank (SB), Recurring

Deposits (RD) Time Deposits (TD) and telephone bills after collecting from the concerned persons and thus, committed criminal breach of trust.

c) Section 405 of IPC defines Criminal Breach of Trust.

The essential ingredients of Section 405 of IPC are “firstly speaks that there should be entrustment of property, or with any dominion over property, secondly there should be dishonest misappropriation or converts to his own use that property and thirdly such dishonest misappropriation of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged”.

Sec.409 of IPC defines the punishment for criminal breach of trust by a public servant.

d) Adverting to the entrustment of the property is concerned, the evidence of P.W.1 is that the accused worked as Branch

Post Master, Mandadam village from 31-03-2002 to 27-07-2005 and during that tenure, he misappropriated the amounts pertaining to

Savings Bank, Recurring Deposits, Time Deposits and Telephone bills.

P.W.1 further testified that his predecessor by name T.Narisireddy conducted preliminary enquiry and submitted his report to the

Superintendent of Post Offices, Guntur. P.W.1 testified that the modus

Operindi adopted by the accused is that he accepted deposits, made relevant entries in the pass books and did not credit the same to the departmental accounts.

5(CC. No.425/2012)

e)It is the contention of the prosecution that the documents speak about the dishonest misappropriation of amount by the accused and Exs.P4 to P15 are the said documents produced by

P.W.1 along with the report, which contains entries and they reveal that the amount misappropriated by the accused was not at all credited to the departmental accounts.

f)The contention of the learned counsel for the accused is that there was enormous delay in registering the FIR and P.W.1 presented a report on 28.6.2010 after lapse of 5 years from the date of the alleged offence. The learned counsel further contended that the evidence of P.W.1 itself shows that there was no misappropriation committed by the accused as alleged and also specifically contended that the accused paid the entire amount, which was alleged to be misappropriated and in fact, no offence was committed by the accused.

g)Even though, P.W.1 had categorically deposed about the Modus Operindi adopted by the accused, that the latter used to accept the deposits, made relevant entries in the pass books, but never credited to the departmental accounts, P.W.2, who is one of such depositors testified that he deposited Rs.6,600/- in the recurring deposit account @ Rs.600/- per month in the year 2004 and in

June,2005, he was informed that the amount was not deposited for two months by then. He also stated that corresponding entry was made in

RD account book, but in fact, amount was not deposited in his account.

He also specifically deposed that the amount was returned to him in the year 2009. Though P.W.2 had deposed about the irregular entries made in his account, he never reported the same to the police and the same is admitted by him. There could be many reasons for not reporting the matter and even P.W.2 being aggrieved person kept silent without reporting the matter to police and in fact, during his 6(CC. No.425/2012) cross-examination, he admitted that no loss was incurred by him. He also further admitted that the amount which he deposited was returned to him along with interest.

h)P.W.1, who is the crucial witness to depose about the alleged misappropriation, admits in his cross-examination that he never stated to the police about the names of the persons or the account numbers relating to which the alleged offence of misappropriation occurred. He also made categorical admission that the amount will not be kept with Branch Post Master and on maturity of account, amount will be disbursed from the Head Post Office. He even admits that the balance summary will be sent to Head Post Office and there will be no chance of misappropriation. Further, with regard to procedural aspects involving loss to the exchequer, P.W.1 admits that there is quarterly inspection at Branch Post Office and during the tenure of the accused from 2002 to 2005, no misappropriation was made out against the accused in quarterly inspection as well as in annual audit.

i)A major infirmity in the case of the prosecution is that

P.W.1 himself admits that the alleged offence took place between 31.03.2002 to 27.07.2005. P.W.3 admits that the report was given on 28.06.2010 and the date of the alleged offene was not mentioned in

Ex.P1. He even admits that he never visited the office of P.W.1 and he only received documents from P.W.1, which were exhibited as Exs.P4 to P15. However, P.W.1 never testified about the said exhibits, in fact the minute aspects, such as the date of deposits, irregular entries and non-remission of amounts to the exchequer, would be within the knowledge of P.W.1. But, P.W.1 had not at all testified about the said documents even though he admits that Exs.P4 to P15 were handed over by him to the police and in fact, the same was affirmed by P.W.3.

If at all, there was misappropriation on the part of the accused, when

P.W.1 has knowledge of misappropriation, he would have been given report at the earliest point of time i.e., on any date immediately after 7(CC. No.425/2012) 27.07.2005. But, his evidence is quite contrary to the version of prosecution. Even in Ex.P1, the specific illustrations were mentioned alleging misappropriation committed by the accused. During his evidence, P.W.1 is totally silent about the specific acts of misappropriation committed by the accused. He only testified that the accused paid the entire amount. Even when, there was a systematic quarterly inspection and annual audit in the office, the question of misappropriation does not arise and also P.W.1 admits that as the amount was never kept with the Branch Post Master and on maturity of the account, the amount would be disbursed from the Head Post Office.

j)With regard to registering the FIR is concerned, it is pertinent to mention here that P.W.1 presented a report on 28.06.2010 and the alleged period of misappropriation is from 31.03.2002 to 27.07.2005. Hence, there is an enormous delay of about 5 years in presenting report and the reason for delay was never explained by

P.W.1 nor by the investigating officer. More over, the evidence of P.W.1 is full of surmises and infirmities and P.W.2, who is alleged to be the victim in the hands of the accused under the guise of misappropriation, did not file any report against the accused before the police. Further more, the investigation in this case did not yield anything to support the case of prosecution.

k)In the light of the above discussion, as a whole, the prosecution could not place any material on record to establish that the accused misappropriated the amounts relating to subscribers and thereby caused criminal breach of trust. Hence, this court is of the considered opinion that the prosecution has miserably failed to establish the guilt of the accused beyond all reasonable doubt for the offence punishable under section 409 of IPC and hence, the accused is entitled for an order of acquittal on the ground of benefit of doubt.

8(CC. No.425/2012)

Point is answered accordingly in favour of the accused and as against the prosecution.

11.In the result, the accused is found not guilty for the offence punishable under Section 409 of IPC. Accordingly, he is acquitted under section 248(1) of Cr.P.C. His bail bond shall stands cancelled. Accused shall furnish a bond u/s 437-A Cr.P.C, that he shall appear before the appellate court in the event he receive summons within six months from today.

Dictated to Stenographer Grade -III, transcribed by her, corrected

and pronounced by me in the open court on this the 29th day of March,2016.

Sd-/ P.Govardhan

Spl. Judicial First Class Magistrate, Prohibition & Excise, Guntur. FAC Additional Junior Civil Judge, Mangalagiri.

Appendix of evidence Witnesses examined

For Prosecution :-

P.W.1 : Paragati Venkata Swamy

P.W.2 : Vasimalla Prabhudas

P.W.3 : J.Ch.Venkateswarlu, Sub-Inspector of Police, Thulluru P.S.,

For Defence :- --Nil--

Documents marked

For Prosecution :-

Ex.P1/-- : Report of P.W.1 9(CC. No.425/2012)

Ex.P2/-- : Draft police report, which P.W.1 handed over to

Superintendent of Post Offices, Guntur.

Ex.P3/-- : FIR in Cr.No.78/2010 of Thulluru P.S.,

Ex.P4/-- : Preliminary report dt.04.08.2005 submitted by Sri D.Narsi

Reddy

Ex.P5/-- : RE Pass book with A/c.No.135428

Ex.P6/-- : Statement of Ch.Nageswara Rao dt.22-08-2005

Ex.P7/-- : Copy of ledger maintained with A/c.No.135428

Ex.P8/-- : RD Pass Book with Account No.136385

Ex.P9/-- : Statement of V.Prabhu Das dt.22.08.2005.

Ex.P10/-- : Copy of Ledger maintained in Account No.136385

Ex.P11/-- : RD Pass Book with Account No.1388191

Ex.P12/-- : Statement of K.Vijayakumari dt.22.08.2005

Ex.P13/-- : Copy of ledger maintained with account No.1388191

Ex.P14/-- : RD Journal book from 16-05-2005 to 09-08-2005.

Ex.P15/-- : SB Journal book, Mandadam from 06-8-2003 to 24-07-2005.

For Defence :- ---Nil---

MATERIAL OBJECTS MARKED

---Nil---

Sd-/ P.Govardhan

Spl. Judicial First Class

Magistrate,

Prohibition & Excise, Guntur. FAC Additional Junior Civil Judge, Mangalagiri.

CALENDAR AND JUDGMENT

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE :: MANGALAGIRI

10(CC. No.425/2012)

CALENDAR IN C.C.425/2012

Date of Offence : 28-06-2010 Date of Report : 28-06-2010 Date of arrest of Accused : 11-10-2010 Date of Release of accused on bail : 22-10-2010 Date of commencement of Trial : 16-04-2014 Date of close of Trial : 16-02-2016 Date of sentence or order : 29-03-2016 Crime No. and Name of P.S. : Cr.No.78/2010 of Thulluru P.S. Name of the Complainant : State : Sub-Inspector of Police, Thulluru P.S..

Description of Accused

NoName of the Father’s NameAgeCallingResidence .accused Kattapogu Venkateswara --Ex-Branch Mandadam (V) BhushanamRao @ PethuruPost Kuragallu (V) MasterMangalagiri (M) Section of Law : U/Section 409 of IPC Plea of Accused : Pleaded not guilty Finding of Court : Found not guilty

Sentence or Order :

In the result, the accused is found not guilty for the offence punishable under Section 409 of IPC. Accordingly, he is acquitted under section 248(1) of Cr.P.C. His bail bond shall stands cancelled. Accused shall furnish a bond u/s 437-A Cr.P.C, that he shall appear before the appellate court in the event he receive summons within six months from today.

Explanation for delay :

This case was filed on the file of Additional Junior Civil Judge Court, Mangalagiri, and taken on file for the offence section 409 of IPC. Copies furnished to the accused on 21-06-2013 and the accused was examined under section 239 of Cr.P.C., on 03-03-2014. On 18-08-2015 P.W.1 was examined and Exs.P1 & P2 were marked. On 28-01-2016 P.W.2 was examined. On 16-02-2016 P.W.3 was examined and Exs.P3 to P15 were marked and closed the prosecution side evidence. On 25-02-2016 the accused were examined under section 313 of Cr.P.C., Arguments of APP were heard on 15-03-2016. Arguments of defence were heard on 24-03-2016. Judgment pronounced on 29-03-2016. Hence, the delay.

Sd-/ P.Govardhan

Spl. Judicial First Class Magistrate, Prohibition & Excise, Guntur. FAC Additional Junior Civil Judge, Mangalagiri.

Copy submitted to:- The Hon'ble Chief Judicial Magistrate, Guntur.