Sri P.R. Rajeev

IN THE COURTOF THE SPL. JUDL. MAGISTRATE OF I CLASS::SPECIAL MOBILE

COURT::KADAPA

Present:- Sri P. R. Rajeev, B.A.,M.L., I Addl. Judl. Magistrate of I Class, Kadapa. FAC SPL.JUDL.MAGISTRATE OF I CLASS, SPECIAL MOBILE COURT, KADAPA

C.C.No.28/2012

Wednesday, the 13th day of March, two thousand and thirteen

Between

State: The Sub-Inspector of Police, Kadapa Taluk Police Station … Complainant

and

1. Duttaluru Mohammed Farooq S/o Late Babu Babaiah, age 27 years, D.No.10/24-49, Khaleel Nagar, Kadapa.

2. Rayanipeta Prathap S/o Hussain Peera,41 years, Dumpalagattu village, khajipet mandal.

3. Rayanipeta Chitti Babu, age 40 years, S/o Hussain Peera Dumpalagatu village, Khajipet mandal.

4. Duttaluru Noorjahan @ Ammani age 42 years, W/o Late Babu Babaiah, D.No.10/24-49, Khaleel Nagar, Kadapa.

5. Sunkesula Siddiq @ Siddaiah @ Siddu age 27 years, S/o Moula Saheb, D.No.2/43, R.P.S. Nagar, Angadi Veedhi,C.K. Dinne mandal. … Accused

This case coming on before me for final hearing on 6.3.2013 in the presence of Senior Public Prosecutor for prosecution and of Sri G.V. Kalyan Reddy, advocate for defence, after having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

The Sub-Inspector of police, Kadapa Taluk police station filed charge sheet in Cr.No.87/2011 u/s 452, 326, 506 r/w 34 IPC against the accused.

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

LW.1 Rayanipati Hussain Peeran is resident of D.NO.10/285, near Makka

Masjid, Ravindranagar, Kadapa and he is retired from the post of S.I. Of

Police and living by pension. He is District President of Dudekula caste.

He is having property disputes in his village Dumpalagattu of Khajipet mandal with his late brother Pedda Hussain Peera's sons Rayunipeta

Prathap, Chitti Babu, Chandra and Ray7unipeta Ammanni @ Dudekula

Noorjahan. On that they had been trying to kill him and his son two or three times. On that he filed cases which were pending in Khajipet -: 2 :- police station and his son named Babu too filed a case in Cr.No.15/2010 which is pending against them. But the village elders are settled land disputes which were pending between them, but cases have been not settled. Rayanipeta Ammani who got an attendant job in BSNL

Department submitting a false T.C. On that his son put a petition to the

BSNL officer under the Information Act, 2005 with a view to obtain her record. On that the BSNL officer named Moorthi A.G.M. Told her that she could be lost her job as it was information act petition and the said

Noorjahan had been told the same to her relatives and she threatened over phone to kill him, his son, daughter in law Subhashini, grand son and grand daughter and also son of Noorjahan and brothers are threatened over phone. On 21.6.2011 at 2.30 P.M. while he and his daughter in law Subhashini are present in his house on the encouragement of Rayunipeta Ammanni @ Dudekula Noorjahan her son

Dudekula Mohammed Farooq his brothers R. Prathap, Chitti Babu and four friends of Mohammed Farooq came to his house and Mohammed

Farooq who armed with iron rod hit a blow on his head which resulting he sustained bleeding injury on his head and when his daughter in law interfered he again beat her with iron rod which resulted she sustained to be bleeding injury with broken her left elbow, remaining asked where abouts of his son and threatened him to kill his son as well as his total family. While abusing so which resulting of his daughter in law's screaming the neighbors rushed to the spot and then they flee away from the spot. Then some others who present there phoned to 108 ambulance and shifted the injured persons to RIMS Hospital, Kadapa.

3. Basing on the strength of hospital intimation and statement of complainant LW.10 Sub-Inspector of Police registered a case and during the course of investigation seized blood stained cloths of Lw.1 R. Hussain Peeran undercover of police proceedings. On 29.6.2011 at 12 noon -: 3 :-

Lw.10 Sub-Inspector of Police arrested A1 to A5 except A2 and seized iron rod from a1 under cover of panchanaam. Later on 20.7.2011 A2 surrendered before the court and released on bail. After completion of investigation and on receipt of wound certificates, he filed charge sheet.

4. This case was taken on file u/s 452, 326. 506 r/w 34 IPC against the accused.

5. On appearance of accused, copies of documents were furnished to them.

6. Accused examined u/s 239 Cr.P.C. Charge u/s 452, 326, 506 r/w 149 IPC against A1 to A5 have been framed, read over and explained the contents of offence in Telugu, for which accused pleaded not guilty and claimed to be tried.

7. During the course of trial the prosecution has been examined Pws.1 to 9 and got marked Ex.P1 to P12. On behalf of the defence A4 examined herself as DW.1 and got marked Ex.D1. The evidence of LW.5 Vemula Venkatamma and LW.6 Syed Taharun was given up by the learned A.P.P. Hence, their evidence was closed.

8. After closure of prosecution evidence accused was examined u/s 313 Cr.P.C. Read over and explained the contents of evidence in Telugu, for which they denied and reported no defence.

9. Heard both sides.

10. Now the point for consideration is whether the prosecution has established its case against the accused for the offence punishable u/s 452, 326, 506 r/w 149 IPC beyond all reasonable doubt?

11. The learned A.P.P. argued that the evidence of prosecution witnesses clearly established that there are enmity prevailing between complainant party and accused party with regard to the property dispute pending between them and further son of PW.1 who is Pw.3 put up application

before the officials against A4 that she secured job by

-: 4 :- producing fake certificates and in that connection all the accused with common object tress-passed into the house of PW.1 and A1 beat PW.1 with iron rod on his head, resulting grievous injury and when PW.2 intervened, she was also beaten with iron rod by A1, resulting grievous injury to her left hand. In the circumstances prosecution has successfully established the guilt of the accused and accused are liable for punishment under the charges leveled against them.

12. On the other hand the learned counsel for the accused filed written-arguments and argued that the motive for the dispute as narrated by the prosecution diversifies from their own witnesses and there is no corroboration with regard to the incident from the prosecution witnesses and presence of accused itself become doubtful as no independent witness examined by the prosecution to support the version of Pws.1 and 2. The prosecution also failed to establish that the author of

Ex.P1 statement said to have been given by Pw.1 as police official which resulted the same not examined and further nothing has been placed

before the court to show that Pw.1 was in consciousness state while

giving said statement as PW.1 being the signatory but Ex.P1 shows thumb impression which does not belongs to PW.1. The author and brain behind Ex.P1 is no other than PW.3. A4 being the employee in BSNL and she was on duty at the time of incident. The leaned counsel also represented that the prosecution failed on all material aspects to prove its case. Hence prayed for acquittal of the accused.

13. It is the case of prosecution that PW.1 is retired Sub-

Inspector of Police and is also District President of Dudekula caste and is having property dispute in his village Dumpalagattu village of Khajipet mandal with his brother late Pedda Hussain Peeran sons who are A2, A3 and Chandra and daughter of A4. On that when they tried to kill him and also his sons, they have filed criminal cases which are pending before -: 5 :-

Khajipet police station. The villagers settled the land disputes which are pending between them.

14. A4 who is working as Attendant in B.S.N.L. Department and she secured job by producing false transfer certificate, on that son of

Pw.1 who is Pw.3 put up an application under Information Act, 2005

before the B.S.N.L. Authorities in order to obtain A4 record. In that

connection after coming to know about the same, A1 to A4 threatened

PW.1 and his son to kill. While soon 21.6.2011 at about 2.30 P.M. when

Pw.1 and 2 who is daughter in law of Pw.1 were present in the house, all the accused entered into the house of PW.1 and A1 who was armed with iron rod beat PW.1 on his head which resulted stab injury. On seeing the same when PW.2 intervened, A1 also beat her with iron rod on her left elbow which resulted fracture. Accused also threatened to kill son of

PW.1. Later PW.1 and 2 were shifted to hospital for treatment and on the strength of statement given by PW.1 before the police and the said statement is marked as Ex.P1.

15. During the course of investigation, the investigating officer on 21.6.2011 seized the blood stained clothes belongs to Pw.1 under cover of Ex.P8 and also arrested A1 to A5 on 29.6.2011 under cover of panchanama and also seized iron rod which has been used for commission of offence under cover of panchanama in the presence of panchayatdars. Hence the charge.

16. The prosecution in order to bring home the guilt of the accused examined on their behalf Pws.1 to 9 and got marked Ex.P1 to

P12. On behalf of defence, A4 examined herself as DW.1 and got marked

Ex.D1.

17. It is not in dispute that complainant party and accused party are inter-related to each other. It is also not in dispute that there are property disputes pending between PW.1 and A2 to A4.

-: 6 :-

18. The prosecution with regard to the incident mainly relied upon the testimony of Pws.1 and 2. On scrutiny of testimony of Pws.1 and 2, Pw.1 stated that on 21.6.2011 at about 2.30 P.M. when he was present in his house which is situated at Ravindranagar and at that time his daughter in law who is Pw.2 was also present in the house, at that time all the accused entered into their house and A1 was arming with iron rod and they have enquired where abouts of son of PW.1 who is

Pw.3. On that when they informed the accused that PW.3 not available in the house, then A1 beat PW.1 with iron rod on his head, which resulted bleeding injury and on seeing the same PW.2 went tot he rescue of

PW.1, then A1 also beat PW.2 with iron rod on her left hand which resulted fracture to her left elbow. In the meanwhile when neighbours of their locality reached there, all the accused went away. Immediately

Pws.1 and 2 were shifted to hospital in 108 Ambulance by Pw.3.

19. PW.1 while undergoing treatment in the hospital, he narrated the incident to the police and the same was recorded and said statement is marked as Ex.P1. Coming to the evidence of Pw.2 who is no other than daughter in law of PW.1 and her evidence also shows that at the time of incident when she was present in the house along with PW.1 who is her father in law, A1 and A5 and some other persons came and

A1 and A5 entered into their house and enquired about where abouts of her husband who is PW.3 and A1 abused in filthy language and he beat

Pw.1 with iron rod on his head resulting bleeding injury and on seeing the same when she intervened and caught hold of the iron rod, A1 pushed her and beat her with said iron rod on her left hand which resulted fracture. In the meanwhile A5 tried to rescue Pw.2 from the hands of A1 and also taken away A1 from the house. PW.2 further stated that she did not observe other accused at that place. Later her husband Pw.3 shifted her and PW.1 to hospital for treatment.

-: 7 :-

20. It is clear from the testimony of Pws.1 and 2 that at the time of incident A1 who was armed with iron rod entered into their house and enquired about where abouts of Pw.3 and after knowing that

PW.3 was not available in the house, A1 beat PW.1 with iron rod on his head and caused bleeding injury and when Pw.2 intervened to rescue

PW.1, A1 also beat her with iron rod on her left hand which resulted fracture. Apart from the testimony of Pws.1 and 2 on perusal of Ex.P1 statement given by PW.1 before police, the specific overt-acts attributed by PW.1 and 2 against A1 also corroborated with each other.

21. The evidence of PW.3 who is no other than son of PW.1 and husband of Pw.2 shows that on 21.6.2011 he gone out from his house on his personal work and during noon time he received intimation from PW.2 with regard to the injury sustained by Pws.1 and 2 at his house, immediately he reached his house and after noting injuries on

Pws.1 and 2 he shifted them to the hospital for treatment. PW.4 who is independent witness stated that on 21.6.2011 at about 2.30 P.M. he went to the house of Pw.3 in order to discuss with him with regard to auto finance as he does auto finance business and while entering into the house of PW.3, he noticed A1 to A5 were coming out of th house and observed PW.1 and 2 were found with bleeding injuries, immediately he contacted Pw.3 over phone and informed him about the same and also came to know through PW.2 that they were beaten by accused.

22. As per the testimony of PW.1 to 4 immediately after the incident Pws.1 and 2 were shifted to hospital for treatment. As per the case of prosecution incident has took place on 21.6.2011 at about 2.30

P.M. As seen from Ex.P6 hospital intimation given by the medical officer which is dated 21.6.2011 at about 4 P.M. The endorsement of head constable of OPPS RIMS Hospital, Kadapa is also shows that Ex.P6 was received on 21.6.2011 at 4 P.M. Immediately after receipt of Ex.P6 -: 8 :- intimation, statement of PW.1 as in Ex.P1 was recorded. As seen from the endorsement on Ex.P1 one E.D. Stephen head constable in charge of

OPPS RIMS Hospital, Kadapa recorded statement of PW.1 on 21.6.2011 from 4.10 to 4.40 P.M.

23. The evidence of Pw.7 medical officer shows that on 21.6.2011 he examined PW.1 and found lacerated injury over scalp measuring 10 x 1 cm bone deep, accordingly patient was referred for X-

Ray examination and basing upon X-Ray and Radiologist opinion Pw.9 medical officer opined that the injuries sustained by PW.1 is grievous in nature as per Ex.P4 wound certificate. PW.7 also stated that on the same day at about 4.30 P.M. he also examined PW.2 and found (1) laceration over left elbow measuring 2 x 1 cm (2) abrasion over right elbow measuring 2 x 1 cm and PW.2 was also referred to X-Ray examination and basing upon X-Ray report and Radiologist opinion of

Pw.9 he also opined that injury No.1 is grievous in nature and injury No.2 is simple in nature and they are possible by blunt object due to assault and age is 0 to 6 hours prior to his examination as per Ex.P5 wound certificate. As seen from the evidence of PW.9 Radiologist on 21.6.2011 about5 P.M. PW.1 was referred to her for X-Ray examination from casualty ward of RIMS Hospital, Kadapa and she has taken X-Ray of

PW.1's skull which did not reveal fracture and she has also taken C.T.

Scan of brain of Pw.1 which revealed intra cranial hematoma in left high parietal lobe and also fracture of bi-lateral high parietal bone. X-Ray file and opinion are marked as Ex.P12. PW.9 also stated that on the same day at about 5 P.M.

PW.2 was also referred to her from casualty ward of RIMS Hospital and she has taken X-Ray of left elbow and fore arm and basing upon X-Ray report MLC

No.1375, dt.21.6.2011 it revealed fracture of left upper end of radius and ulna.

Said report is marked as Ex.P11. It is clear that the injuries sustained by Pws.1 and 2 are ably corroborating with that of the medical -: 9 :- evidence and the medical officer opined that the injuries sustained by

Pws.1 and 2 are grievous in nature.

24. As seen from the testimony of Pws.1 to 4 coupled with medical evidence PW.7 and PW.9 and Ex.P4, P5 and P11 and P12 injured were treated by the medical officer after the incident. As discussed as seen from Ex.P1 and P6 immediately after the incident injured were shifted to hospital for treatment and the statement of injured PW.1 was also recorded by the investigating officer and thereby said law into motion.

25. As far as notice for the incident is concerned the evidence of PW.1 to 3 specifically shows that there are property disputes between

Pw.1 and A2 to A4 who are no other than sons and daughter of brother of

PW.1. Admittedly A1 who is no other than son of A4 and it is also not in dispute that A4 is working as employee in B.S.N.L. and she got employment on compassionate grounds. Apart from the property disputes PW.3 put up petition before the B.S.N.L. authorities seeking information with regard to A4 on the ground that A4 secured employment by producing fake transfer certificate. A4 after coming to know about the same through their officials informed the same to her son who is A1. Though the learned counsel for the accused stated that as far as motive for the incident is diversifies from the evidence of prosecution witnesses, but as seen from the testimony of Pws.1 to 3 coupled with Ex.P1 statement they are consistent.

26. The learned counsel for the accused stressed his argument more with regard tot he Ex.P1 statement of PW.1 and also requested the court to give fair finding with regard to the same. The contention of learned counsel for the accused is that PW.1 is not the author of Ex.P1 statement and the brain behind Ex.P1 is Pw.3 who is son of PW.1. As

PW.1 sustained head injury resulting Hemotoma and as he was -: 10 :- in unconscious state question of giving statement as in Ex.P1 before the police does not arise at all. The learned counsel on this aspect drawn attention of the court with regard to the admissions made by PW.2 and her cross-examination that PW.1 was in unconscious state and PW.4 stated that PW.1 regained consciousness at 9 or 10 P.M. on the date of incident. Further Ex.P1 statement contents and thumb impression of

PW.1 though Pw.1 is signatory and there is no certificate from the medical officer that PW.1 was conscious while giving Ex.P1 statement and Head constable who recorded Ex.P1 statement was not examined by the prosecution and also not cited as witness by the investigating officer.

PW.3 who was very much available in the hospital after shifting Pws.1 and 2 got up Ex.P1.

27. No doubt PW.2 during the cross-examination stated that PW.1 was in unconscious state after the incident and PW.4 stated that PW.1 regained consciousness at about 9 or 10 P.M. on the date of incident itself. But the said admissions cannot be taken into consideration as PW.1 was in unconscious state after the incident. On this aspect on perusal of entire testimony of PW.1, he has specifically stated that after the incident his son shifted him and also his daughter in law PW.2 to hospital for treatment and while he was undergoing treatment in the hospital, he was examined by the police and his statement was recorded and he affixed his thumb impression in the same and also identified the said thumb impression before the court and he explained that as his hand was shivering he affixed his thumb impression in Ex.P1. PW.3 specifically stated that PW.1 was in conscious state when he was shifted to hospital for treatment. No doubt Ex.P1 was not certified by the medical officer with regard to the set of mind of injured and the person who recorded Ex.P1 statement i.e.

Head constable of OPPS RIMS Hospital neither cited or examined by the investigating agency. But as seen from Ex.P6 hospital intimation which was issued to the medical officer no where it is mention- -: 11 :- ed that PW.1 was in unconscious state and as seen from Ex.P1.

Accordingly statement of PW.1 recorded by Head constable from 4.10

P.M. to 4.40 P.M. As PW.1 sustained severe head injury and in the circumstances it can be inferred that he might have affixed his thumb impression in Ex.P1 though he is signatory. Merely the medical officer has not certified with regard to the state of mind of PW.1 in Ex.P1 statement of PW.1 not examined, accused cannot take advantage of the same and he has also claimed benefit of the same that the other evidence clearly established that PW.1 was conscious while going Ex.P1 statement and he is author of the same.

28. As already discussed immediately after the incident Pws.1 ands 2 were shifted to hospital for treatment and as seen from Ex.P4,

Pw.1 was treated by the medical officer who also gave evidence before the court as PW.7. If really PW.1 was in unconscious state, definitely it would have reflected in Ex.P4 wound certificate. PW.8 Radiologist also stated about her examining PW.1 by taking X-Ray and also C.T. Scan on the date of incident itself. All these would categorically established that

PW.1 was conscious while giving Ex.P1 statement before the police.

29. Both Pws.1 and 2 stated that immediately after the incident they were shifted to hospital for treatment and they both were kept in two different wards in RIMS Hospital, Kadapa. Police after recording statement of PW.1 as in Ex.P1 also obtained signature of PW.2 in Ex.P1. PW.2 also identified her signature in Ex.P1 while giving evidence.

PW.3 who was present when Pws.1 and 2 were taking treatment in the hospital and he also corroborated the said fact. When PW.3 who is no other than son of

PW.1 and husband of PW.2 shifted Pws.1 and 2 to hospital after the incident and provided treatment, naturally his attention would be on Pws.1 and 2 as he being their close one except their recovery and merely PW.3 was physically present in the hospital while -: 12 :- treatment of Pws.1 and 2 taking advantage of the same the leaned counsel for the accused contended that brain behind Ex.P1 is Pw.3. As discussed above said contention has no fore. There may be latches on the part of investigating agency, but on that ground accused cannot entitled to Scot free. Entire material placed by the prosecution by way of oral and documentary evidence established that Ex.P1 statement was given by PW.1 before the police in conscious state of mind.

30. As already discussed entire evidence of PW.1 and 2 are corroborating with each other with regard to the manner of incident and it is also supported by Ex.P1 statement of W.1 and ably corroborated by the medical evidence. The prosecution also established the motive for the incident.

31. Though the prosecution contended that the participation of accused during the incident on this aspect, on perusal of testimony of

Pws.1 and 2 said contention not consistent. When Pw.1 stated that all the accused entered into their house at the time of incident, but PW.1 stated specific overt-acts against A1 alone and he did not whisper anything about A2 to A5. Whereas PW.2 stated that A1, A5 entered into their house and she did not observe presence of other accused and she also corroborated the version of PW.1 with regard to the specific overt- acts against A1 alone and she stated that A5 in fact rescued her from the hands of A1. Coming to the evidence of PW.4 except stating that he observed all the accused coming out of the house of Pw.1 and 2 he did not whisper anything about the specific overt-acts. Coming to the version of Pw.1 as in Ex.P1 it also speaks volumes against A1 alone. In the circumstances presence of A2 to A5 at the time of incident has become doubtful. The prosecution failed to establish any charges against A2 to A5 through prosecution witnesses.

32. As far as investigation done by investigating agency is -: 13 :- concerned PW.8 who is the investigating officer stated that on 21.6.2011 at about 7 P.M. after receipt of Ex.P6 hospital intimation along with

Ex.P1 statement of Pw.1 from O.P.P.S. RIMS Hospital, Kadapa he registered the same and during the course of investigation he proceeded to RIMS Hospital and there after examining Pws.1 to 3, he seized blood stained T-Shirt MO.1 and bed sheet i.e. MO.2 from PW.1 under cover of police proceedings, dt.21.6.2011 at about 9.50 P.M. and it is marked as

Ex.P8. PW.8 further stated that he also visited scene of offence which is situated in the house of PW.1 at Ravindranagar, Kadapa and prepared rough sketch it is marked as Ex.P9. On 29.6.2011 at about 12 noon he arrested A1, A3 to A5 near Padmavathi Bekary, ITI circle, Kadapa under cover of panchanama which is marked as Ex.P10 and basing upon the

Ex.P10 he proceeded to water tank near ITI junction and there seized iron rod i.e. MO.3 under cover of Ex.P3 panchanama. As seen from

Ex.P3 and P10 panchanamas they were prepared by PW.8 in the presence of panchayatdars who are PW.5 and 6. But PW.8 did not whisper anything about the same. Coming to the evidence of PW.5 and 6, PW.5 stated that on29.6.2011 at about 8 A.M. When he was present at

ITI circle, Kadapa Taluk police along with Sub-Inspector of police,

Ramakrishna came there in jeep and at that time A1 to A5 when tried to ran away, police apprehended them and on question they have stated that they beat one retired Sub-Inspector with iron rod and accordingly they were all proceeded to Taluk police station and there panchanama was prepared and accordingly he signed in the same. PW.6 except stating at the instance of police he signed in panchanama, dt.29.6.2011 at 9 A.M. And 11.15 A.M. Which are marked as Ex.P2 and P3, he did not state anything about the contents of

Ex.P3 and P10 panchanamas. With that inference can be drawn that A1, A 3 to

A5 were arrested by PW.8 and also did not seize MO.3 in the presence of Pw.5 and 6. merely independent witnesses did not supported the case of -: 14 :- prosecution and further latches on the part of investigating officer are not the ground to disbelieve the case of prosecution. But as seen from the entire evidence of material witnesses to the case of prosecution, manner of incident as well as motive are overwhelmingly established.

The investigation part done by PW.8 with regard to the scene of offence and seizure of blood stained cloths of Pw.1 as per Ex.P8 proceedings are ably supporting the version of prosecution witnesses. Merely part of investigation done by PW.8 with regard tot he arrest of accused and seizure of MO.3 under cover of Ex.P3 and P10 panchanamas not corroborating by independent witnesses, with that entire version of injured and prosecution version cannot be looked with suspicion.

33. Entire material placed by prosecution through injured witnesses is ably corroborating on all material aspects and also supported by medical evidence, thereby prosecution has successfully established its case against A1, but not against A2 to A5.

34. On behalf of accused, A4 who examined herself as DW.1 and also got marked Ex.D1 to show that on the date of incident, she was on duty, but her entire evidence coupled with Ex.D1 not convincing, but however as discussed presence of A4 at the time of incident even as per the prosecution version also doubtful.

35. For the forgoing reasons the prosecution successfully established the guilt of A1 and failed to establish the guilt of A2 to A5.

36. In the result, A2 to A5 found not guilty of the offence u/s 452, 326, 506 r/w 149 IPC and for the same they are acquitted u/s 248(1) Cr.P.C. Their bail bonds if any shall stand canceled. Accused shall furnish a bond u/s 437(a) Cr.P.C. that they shall appear before the

Appellate Court in the event they receives summons within six months from today.

-: 15 :-

37. In the result, A1 found guilty of the offence u/s 452, 326, 506 IPC and for the same he is convicted u/s 248(2) Cr.P.C.

Dictated to the Personal-Asst., transcribed by him, corrected

and pronounced by me in open court on this the 13th day of March, 2013.

Sd/- P.R.Rajeev,

I ADDL. JUDL. MAGISTRATEOF I CLASS, KADAPA

FAC SPL.JUDL.MAGISTRATE OF I CLASS, SPECIAL

MOBILE COURT, KADAPA.

When A1 being questioned regarding quantum of sentence he represented that about four months back his wife delivered a male child and he is in ventilator due to ill-health and his presence is required.

Hence pleaded mercy.

Considering the nature of case and also injuries sustained by

Pws.1 and 2 from the hands of A1, I feel that accused does not deserve any sympathy and it is also not a fit case to release the accused under

P.O. Act.

Accordingly A1 is sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.5,000/- (Rupees five thousand only) for the offence u/s 326 IPC. In default of payment of fine, he shall undergo simple imprisonment for a period of two months. He is further sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.2,000/- (Rupees two thousand only) for the offence u/s 452 IPC. In default of payment of fine, he shall undergo simple imprisonment for a period of one month. He is further sentenced to pay a fine of Rs.1,000/- (Rupees one thousand only) for the offence u/s 506 IPC. In default of payment of fine, he shall undergo simple imprisonment for a period of one month.

The imprisonment imposed by this court shall run concurrently. The remand period already undergone by the accused if any -: 16 :- shall be set off u/s 428 Cr.P.C. Mos.1 to 3 shall be destroyed after appeal time is over.

Dictated to the Personal-Asst., transcribed by him, corrected

and pronounced by me in open court on this the 13th day of March, 2013.

Sd/- P.R.Rajeev,

I ADDL. JUDL. MAGISTRATEOF I CLASS, KADAPA

FAC SPL.JUDL.MAGISTRATE OF I CLASS, SPECIAL

MOBILE COURT,KADAPA.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

FOR PROSECUTION FOR DEFENCE

PW.1: R. Hussainpeera PW.2: R. Subhashini. DW.1: D. Noorjahan. PW.3: R. Babu PW.4: S. Sreenivasulu. PW.5: K. Venkata Karunakar Reddy PW.6: C. Siva Rami Reddy. PW.7: Dr. B. Sreenivasulu. PW.8: B. Ramakrishna, S.I. Of Police. PW.9: Dr. V. Ramadevi, Radiologist.

EXHIBITS MARKED FOR

Ex.P1: Statement given by PW.1 to police. Ex.P2: Panchanama, dt.29.6.2011 at 9 A.M. Ex.P3: Panchanama, dt.29.6.2011 at 11.15 A.M. Ex.D1: Certificate issued Ex.P4: Wound certificate of PW.1. By BSNL Office, Ex.P5: Wound certificate of Pw.2. Kadapa. Ex.P6: Hospital Intimation. Ex.P7: F.I.R. In Cr.No.87/2011 of Kadapa Taluk P.S. Ex.P8: Police proceedings, dt.21.6.2011 at 9.50 P.M. Ex.P9: Rough sketch of scene of offence. Ex.P10: Panchanama, dt.29.6.2011 at about 12 noon Ex.P11: Report and X-ray issued by Pw.9. Ex.P12: X-Ray film issued by PW.9.

MATERIAL OBJECTS MARKED

MO.1: T-Shirt. MO.2: Bed-sheet. MO.3: Iron rod.

Sd/- P.R.R.

SPL..J.M.F.C.

SPL.MOBILE COURT,KDP.

IN THE COURT OF THE SPL. JUDL. MAGISTRATE OF I CLASS::SPECIAL MOBILE

COURT::KADAPA

Present:- Sri P. R. Rajeev, B.A.,M.L., I Addl. Judl. Magistrate of I Class, Kadapa. FAC Spl.Judl. Magistrate of I Class, Spl.Mobile Court, Kadapa.

S.T.C.No.92/2010

Monday, the 25th day of February, two thousand and thirteen

Between

Chinchala Satya Narayana Reddy S/o Narayana Reddy, age 34 years, D.No.6/800-4, Sankarapuram Kadapa City … Complainant

and

T., Bhaskar Reddy S/o T. Parvatha Reddy, age 43 years, D.No.7/477-1C, Near Saivignan School,

N.G.O. Colony, Kadapa city. ... Accused

This case coming on before me for final hearing on 20.2.2013 in the presence of Sri D. Lakshminarayana, advocate for complainant and of Sri G. Ramesh Reddy, advocate for defence, after having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

The complainant filed this complaint against the accused alleging that the accused committed the offence u/s 138 of N.I. Act.

2. The brief averments in the complaint are as follows:

That in view of acquaintance between complainant and accused since long time, accused being the public servant who is doing business along with his sister-in-law and for his business needs obtained hand loan of Rs.3,00,000/- from the complainant to meet his necessities in first week of July and issued post-dated cheque bearing No.108563 dt.25.10.2009 drawn on Indian Overseas Bank, Kadapa.

3. Complainant accordingly presented the said cheque through his banker IDBI Bank, Kadapa on 28.10.2009 for collection and the same was dishonored due to insufficient funds vide memo dt.29.10.2009 and accused failed to keep sufficient funds in his account to honour and thereby committed the offence u/s 138 r/w 142 of N.I. Act.

4. The complainant got issued legal notice to th4 accused on -: 2 :- 4.11.2009 to arrange for payment of the cheque amount and accused having received said notice got issued reply notice, dt.9.11.2009 with all false and prevelius allegations. Hence the complaint.

5. This case was taken on file u/s 138 of N.I. Act against the accused.

6. On appearance of accused copies of documents were furnished to him.

7. Accused examined u/s 251 Cr.P.C., substance of offence u/s 138 of N.I. Act has been read over and explained the contents of charge in Telugu, for which he denied, pleaded not guilty and claimed to be tried.

8. During the course of trial, the complainant himself examined as PW.1 and complainant also examined PW.2 on his behalf and got marked Ex.P1 to P6 were marked. Ex.X1 to X3 are marked through

PW.2. Accused himself examined as DW.1 and no documents are marked.

9. After closure of prosecution evidence, accused was examined u/s 313 Cr.P.C. read over and explained the contents of evidence in Telugu, for which he denied and reported no defence.

10. Heard both sides.

11. Now the point for consideration is, whether the prosecution has established the guilt of the accused for the offence u/s 138 r/w 142 of N.I. Act beyond all reasonable doubt?

12. The learned counsel for the complainant argued that the complainant has got acquaintance with the accused and as accused doing business along with his sister-in-law and for the said purpose borrowe4d Rs.3,00,000/- from the complainant as loan and towards discharge of the same issued Ex.P1 cheque. Accordingly when the complainant presented said cheque for collection it was dishonored due to insufficient funds in -: 3 :- the account of the accused. Accused failed to keep sufficient funds in his account to honour the cheque in question and though received legal notice, failed to discharge the same and as accused issued cheque in question towards legally enforceable debt accused is liable for punishment under the charge leveled against him.

13. On the other hand the learned counsel for the accused filed written-arguments and argued that he has no acquaintance with the complainant and he never borrowed Rs.3,00,000/- from the complainant and he never issued cheque in question towards discharge of any debt

In fact sister-in-law of accused Aruna Kumari having dealings with the complainant and in that connection complainant used to visit house of accused and thereby committed theft of two signed blank chequs belongs to the accused. The sister-in-law of accused having sustained loss filed insolvency petition against the complainant and others, aggrieved over the same complainant took advantage of the stolen cheques filed present complaint and also got filed another complaint through his relative Krishna Reddy as if accused borrowed money from him.

14. Accused after coming to know about the same filed criminal case against the complainant and he also executed private complaint and

Accused also preferred complaint with regard to the stolen of cheques and also he intimated bank authorities not to honour the said cheques when they were presented for collection. Entire evidence placed by complainant failed to establish the existence of subsisting debt between accused and complainant.

Hence prayed for acquittal of the accused.

15. Before going to the merits of the evidence adduced by both complainant and accused in support of their contention in order to know about the relevant provisions as laid down under Negotiable

Instruments Act which are discussed as follows:

-: 4 :-

SECTION 138:- DISHONOUR OF CHEQUE FOR INSUFFICIENCY, 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 debtor other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honor the cheque or that it exceeds the amount arranged to honor the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended two years or with fine which may extend to twice the amount of the cheque, or with both;

Provided that nothing contained in this section shall apply unless

(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 maybe, 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 thirty 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 fifteen days of the receipt of the said notice.

EXPLANATION:- For the purposes of this Section ‘ debtor other liability” means a legally enforceable debt or other liability.

SECTION 139:- 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, or any debt or other liability.

16. Section 139 of the Act throws much light on regarding the existence of legally enforceable debt in favour of the complainant against -: 5 :- the accused. The offence under Section 138 of the Act can be said to have been committed if only a cheque issued for repayment of legally enforceable debt is not honored, when presented. A reading of the

Section 138 of the Act, in isolation, would make one to feel that the complainant has to plead and establish the existence of legally enforceable debt, as a first step in proving the offence under Section 138 of the Act. However, Section 139 of the Act requires the court to draw the presumption to the effect that the holder of the cheque has received the same for discharge in whole or in part of any debt or other liability. This presumption, of course, is rebattable. The starting point for the court on this aspect would be to presume the existence of a debt, once the complainant i.e. holder of a cheque informs that the cheque received by him was dishonored on being presented. On this count, the ordinary principle of law that in criminal cases the burden is always on the prosecution/complainant to establish the guilt against the accused beyond any reasonable doubt stands relaxed.

17. The complainant in order to discharge initial burden which rests on him examined himself as PW.1 and stated that in view of his acquaintance with the accused and also as accused being public servant doing business along with his sister-in-law Aruna Kumari borrowed

Rs.3,00,000/- from him as loan for his necessities and in the first week of

July and issued Ex.P1 cheque dt.25.10.2009 towards discharge of the same. Accordingly he executed Ex.A1 cheque through his banker IDBI

Bank, Kadapa on 28.10.2009, but the same was returned dishonour due to insufficient funds in the account of the accused as per Ex.P2 memo dt.29.10./2009. After coming to know that accused failed to keep sufficient funds in his account to honour Ex.P1 cheque when it was presented for collection, he got issued Ex.P3 legal notice dt.4.11.2009 as per Ex.P6 accused having received said legal notice got issued Ex.P4 reply -: 6 :- notice dt.9.11.2009. In spite of stipulated time accused failed to clear the amount due under Ex.P1 cheque and further as accused issued Ex.P1 cheque towards discharge of subsisting debt burden which rests on him to discharge and as per Sec.139 of N.I. Act, statutory presumption comes into operation in his favour.

18. Complainant examined PW.2 who is the banker of accused and he stated that Ex.X1 which is statement of account relating to the accused from 25.10.2009 to 29.10.2009. Ex.X2 is the letter, dt.9.8.2009 issued by accused to their banker for stop payment of Ex.P1 cheque and another cheque and Ex.X3 is the relevant entry in the cheque return register, dt.29.10.2009 and as per Ex.X1 there was no sufficient amount to honour Ex.P1 cheque.

19. Basing upon the oral and documentary evidence placed by complainant as Pws.1, 2 and coupled with documentary evidence the learned counsel for the complainant argued that the complainant established that Ex.P1 cheque was issued by accused towards discharge of legally enforceable debt.

20. The learned counsel for the complainant in support of his argument placed reliance upon a decision reported in (1) B. V.

RANGAM vs. B. GOVINDA REDDY AND ANOTHER 2004 Crl.L.J.

3170 in a complaint u/s 138 and 139 of N.I. Act with regard to the presumption and burden of proof his Lordship held that presumption u/s 139 can be drawn that complainant discharged his initial burden as legally enforceable debt and burden shifts to the accused to establish that the cheque was not issued against legally enforceable debt.

21. Before going to find out whether accused able to discharge the burden which rests on him It is also pertinent to refer the decision reported in

M.S. NARAYANA MENON ALIAZ MANI vs. STATE OF KERALA AND

ANOTHER (2006) 6 SUPREME COURT CASES 39 -: 7 :- where-under their Lordship while dealing with Sec.138 and 118 of N.I. Act as well as sec.101 to 109 of Indian Evidence Act held that burden of prof on the accused is not heavy as to that of the prosecution.

22. On the other hand it is the contention of the accused that there is no acquaintance between himself and complainant and at any point of time he never borrowed Rs.3,00,000/- from the complainant and never issued Ex.P1 cheque in favour of complainant. When there is no subsisting debt prevailing between himself and accused and question of issuing Ex.P1 cheque does not arise at all. Complainant who was having dealings with his sister-in-law Aruna Kumari and in that connection having visited his house, he stolen away two signed blank cheques belongs to him and as his sister-in-law filed insolvency petition, as such complainant taking advantage of the signed blank cheques belongs to him, he got filled and filed present complaint and also another complaint through his relative Krishna Reddy as if he borrowed money from them.

Accused apart from contending the same in order to rebut presumption he cross-examined Pws.1 and 2 and also examined himself as DW.1. On this aspect in order to find out whether accused rebutted the presumption which rests on him, the detailed cross-examination of Pws.1 and 2 when looked into.

23. PW.1 admitted that he did not mention the date, place and time when he lend money to the accused in his chief-examination, complaint as well as legal notice itself also not mentioned as to how and since how long he got acquaintance with the accused, job particulars of accused. He has not file any documentary proof to show that accused is doing business with his sister-in-law Aruna Kumari, there is no witness when he lend money to the accused and he also did not file any supporting documents like pronote or agreement or any other document in support of Ex.P1. Said Aruna

Kumari filed insolvency petition before the Senior Civil -: 8 :-

Judge Court, Kadapa vide I.P. No.32/2009 and he is first respondent in the

said application. It is mentioned that said Aruna Kumari has to pay Rs.14 lakh to him and he is contesting in the said insolvency proceedings. He know one case is pending against the accused filed by Krishna Reddy and he has no personal acquaintance with him. He admitted that his native place and the native place of said Krishna Reddy are of Sidhout mandal and he got acquaintance with him since 2 or 3 years. He further admitted that he is income tax assessee and he did not pay any tax since two years. He has got financial dealings with said Aruna Kumari and he do not remember the debt due by Aruna Kumari to him. He do not know who written writings in the body of Ex.P1 cheque and he is aware that on 15.11.2009 in Cr.No.214/2009 of Chinnachowk police registered a case against him that he committed theft of two chequs belongs to the accused. Police enquired him in that connection, but he stated that he has received one cheque. He do not know about the publication made by the accused regarding he lost the cheques. Amount of Rs.3,00,000/- given to the accused was not lend from any bank, but it was kept in his house and he has not having any record to show with regard to the same, and he do not know whether he has shown the same in the income tax returns and he has also not filed any documentary proof to show that he has got capacity to lend Rs.3,00,000/- to the accused. It is clear from the admissions made by PW.1 that except Ex.P1 cheque he do not have any other proof to show that he has got financial capacity to lend such a huge amount to the accused and also his acquaintance with the accused also becomes doubtful.

24. The entire admissions of PW.1 during his cross-examination it is sufficient to draw inference that complainant failed to place any material by way of documentary proof to show that he is having such a huge amount in his hand and the same has been lend to the accused as -: 9 :- contended by him after obtaining any proof as loan. The complainant also did not file any record to show about the earlier transaction between himself and accused, but he has categorically admitted that business transactions between himself and the sister-in-law of accused Aruna

Kumri and said Aruna Kumari also initiated insolvency proceedings against him. Complainant also admitted about preferring of compliant by accused that his two signed blank cheques were stolen and in that connection police also enquired him. All these would categorically established the contention of the accused rather than the contention of complainant and it also creates doubt in the mind of the court with regard to the subsisting debt between complainant and accused as contended by the complainant.

25. The evidence of PW.1 and also complaint averments shows that

Ex.P1 cheque dishonored due to insufficient funds in the account of the accused. But as seen from the evidence of PW.2 coupled with Ex.P2, Ex.X3, same was returned as accused asked his banker to stop payment. The evidence of accused as DW.1 coupled with Ex.X2 also established that the reason for accused instructed the banker to stop payment of Ex.P1` cheque which was presented for collection as it was stolen.

26. The complainant also admitted that except signature in Ex.P1 cheque writings in the body of the said cheque are different and he also pleaded ignorance as to who filled the body of Ex.P1 cheque. On this aspect the learned counsel for the accused placed reliance upon the decisions reported in (1) C. ANTONY vs. K.G. RAGHAVAN NAIR in

Crl.Appeal No.1748 of 1996 decided on 1.11.2002 BY THE HON'BLE

SUPREME COURT where-under in a complaint u/s 138 of N.I. Act when it is contended that there is difference of ink in cheque in question with regard to the signature and its body contents, then their Lordship held that on perusal of cheque found that ink used in body of cheque is different with that the ink used in signature on the cheque, then inference can be -: 10 :- drawn that the contention of the complainant has to be doubted.

27. On the other hand the learned counsel for the complainant also relied upon decisions reported in (1) D. ATCHUTHA

REDDY vs. STATE OF ANDHRA PRADESH AND ANOTHER 2010(1)

ALD 59 (AP) whee under in a complaint u/s 138 of N.I. Act his Lordship body of cheque, not required to be in hand-writing of maker of it and it is not mandatory and no law prescribes that body of cheque should also be written by signatory to the cheque. The cheque could be filled up by anybody if it is signed by account holder of the cheque.

2) in SATISH JAYANTILAL SHAH vs. MASHRUWALA AND

ANOTHER 1996 CRL.L.J. 3099 GUJARAT HIGH COURT in a complaint u/s 139 of N.I. Act, his lordship also held that entire body of the cheque need not be written by maker or drawer, but only material is signature of the drawer. But in view of the decisions rendered by the Hon'ble Supreme Court as referred above by the decisions rendered by the learned counsel for the complainant is not applicable.

28. The learned counsel for the accused also relied upon a decision reported in (1) P. NARASIMHA RAO vs. D.L. NARASIMHA RAO 2004(2)

ALD (CRL.) 303 (AP) in a complaint u/s 138 of N.I. Act when the complainant did not adduce any documentary evidence to show that the cheque in question was issued in respect of debt in question, except his oral testimony and testimony of another witness who is said to have been witnesses specific to arrive to conclusion that the cheque in question was issued towards discharge of legally enforceable debt.

2) in A. YESUBABU vs. D. APPALA SWAMY AND ANOTHER 2003(2) ALD (Crl.) 707 (A) in a complaint u/s 138 of N.I. Act in which accused gave cheque for debt which was already time bared and in the circumstances as there is no subsisting liability, then his Lordship held that the existence of subsisting debt is a question of law and it can be raised -: 11 :- by the accused for the first time in appeal.

3) in GIRIDHARI LAL RATHI vs. P.T.V. RAMANUJACHARI

AND ANOTHER 1997(1) ALT (CRL.) 509(AP) in a complaint u/s 138 of N.I. Act cheque was issued in the year 1990, loan was advanced during the year 1985 by the time cheque was issued, the debt appears to have been time barred, then his Lordship held that accused could not be prosecuted for the offence u/s 138 of N.I. Act.

The entire oral and documentary evidence placed by accused and also detailed cross-examination of PW.1 established that complainant failed to place any material before the court with regard to the existence of legally enforceable debt between themselves and in that connection Ex.P1 cheque was issued to discharge the same, thereby accused has rebutted the statutory presumption available in favour of the complainant.

29. The learned counsel for the complainant with regard to the stop payment and though stop payment instructions given to the bank stil offence u/s 138 of N.I. Act and strengthens and placed reliance upon the decisions reported in (1) M/S M.M.T.C. LTD. AND ANOTHER vs. M/S MEDCHL

CHEMICALS AND PHARMA (P) LT. AND ANOTHER AIR 2002 SUPREME

COURT 182 in a complaint u/s 138 of N.I. Act question with regard to stop payment instructions, then their Lordship held that even when the cheque is dishonored by reason of stop payment instructions by virtue of Sec.139 the court has to presume that the cheque was received by the holder for discharge, in whole or in part, of any debt or liability.

2) in GOAPLAST PVT. LTD. vs. SHRI CHICO URSULA

D'SOUZA AND ANOTHER A.I.R. 2003 SUPREME COURT 2035 in a complaint u/s 138 of N.I. Act with regard to stop payment instructions their Lordship held that if stoppage of payment of a post-dated cheque is permitted to take the case out of the purview of Sec.138 of the Act, it wil amount to allow the party to take advantage of his own wrong.

-: 12 :-

3) in M/S MODI CEMENTS LTD. vs. KUCHIL KUMAR

NANDI A.I.R. 1998 SUPREME COURT 1057(1) in a complaint u/s 138 of N.I. Act with regard to stoppage of payment instructions, their lordship held that notice by drawer to drawee or to bank for stoppage of payment after cheque issued to drawer it would not precluded action under sec.138 of N.I. Act.

4) in T.P. CHANDRAN vs. M.K. SATHYANANDAN AND

ANOTHER 2000 CRL.L.J. 3728 in a complaint u/s 138 of N.I. Act with regard to stop payment as cheque was returned with endorsement cheque reported stolen, then her lordship held that once cheque is issued by drawer, a presumption under Sec.139 must follow and even though it is not endorsed in the cheque, intention to stop payment is implied.

5) in K. BHASKARAN vs. SANKARAN VAIDHYAN BALAN

AND ANOTHER (1999) 7 SUPREME COURT CASES 510 in a complaint u/s 138 of N.I. Act, their lordship held that with regard to awarding compensation to complainant as per Sec.357(3) Cr.P.C.

The decisions relied upon by the learned counsel for the complainant is not applicable to the present set of facts as it is categorically established by the accused and under what circumstances he has issued instructions to the banker to stop payment of cheques and further question of legally enforceable debt prevailing between complainant and accused itself is doubtful in the present case.

30. The learned counsel for accused argued that accused set up contradicting defence that cheques stolen at one stage and lost at another stage and the defence of accused is not consistent. On this aspect on perusal of decision reported in K. KRISHNA REDDY vs. K. RAJENDER AND

ANOTHER 2012(1) ALD (CRL.) 934 (A.P.) in a complaint u/s 138 of N.I. Act when the complainant contended the accused in discharge of Rs.75,000/- borrowed from him issued cheque in -: 13 :- question and accused contended that there is no acquaintance with the complainant and he never borrowed any amount from him and having lost his hand bag which was containing signed blank cheques and promissory note he also gave police report and stop payment. When the complainant failed to produce bank statement any books or statement of account showing he advanced said amount to accused and also not supported by the income tax returns, then his Lordship held that is doubtful regarding existence of legally enforceable debt and also through the story of accused about the loss of hand bag appears artificial as opined by trial court, the same cannot be considered to be proof of existence of a legally enforceable debt or liability and accordingly dismissed the complaint.

31. Though complainant examined himself as PW.1 and also

PW.2 on his behalf, but entire cross-examination done by the accused and also defence set up by the accused established that there is no legally enforceable debt prevailing between complainant and accused and that Ex.P1 cheque was not issued by him with regard to the subsisting debt and thereby accused successfully rebutted the presumption and established burden which rests on him.

32. The entire material placed by accused clearly established that the complainant is not able to establish his acquaintance with the accused and also there are business dealings between them and accused borrowed

Rs.3,00,000/- from him and towards discharge of the same issued Ex.P1 cheque.

On the other hand the complainant also failed to establish the initial burden which rests on him to show that he lend Rs.3,00,000/- to the accused in that connection accused towards discharge of the same issued Ex.P1 cheque. When the complainant failed to establish with regard to the existence of subsisting debt between himself and complainant existing and further accused also rebutted the statutory presumption as laid down u/s 139 of N.I. Act and in the circumstances -: 14 :- complainant failed to bring home the guilt of the accused.

33. For the forgoing reasons the complainant failed to establish guilt of the accused and accused is accordingly acquitted.

34. In the result, accused found not guilty of the offence u/s 138 r/w 142 of N.I. Act and for the same he is acquitted u/s 255(1)

Cr.P.C. His bail bonds if any shall stand canceled. Accused shall furnish a bond u/s 437(a) Cr.P.C. that he shall appear before the Appellate Court in the event he receives summons within six months from today.

Dictated to the Personal-Asst., transcribed by him, corrected and

pronounced by me in open court on this the 25th day of February

2013.

Sd/- P.R.Rajeev,

I ADDL. JUDL.MAGISTRATE OF I CLASS,

FAC SPL. JUDL. MAGISTRATEOF I CLASS,

SPECIAL MOBILE COURT, KADAPA.

APPENDIX OF EVIDENCE IN

WITNESSES EXAMINED FOR

FOR PROSECUTION FOR DEFENCE

PW.1: C. Satyanarayana Reddy DW.1: T. Bhaskar Reddy.

PW.2: N. Shanmukam, Managar Indian Overseas bank.

EXHIBITS MARKED ON BEHALF OF COMPLAINANT:-

Ex.A1: Cheque bearing No.108463, dt.25.10.2009 issued by accused

Ex.A2: Memo issued by Indian Overseas Bank, Kadapa, dt.29.10.2009.

Ex.A3: Office copy of legal notice, dt.4.11.2009.

Ex.A4: Reply legal notice, dt.9.11.2009 along with postal cover.

Ex.A5: Postal receipt of legal notice, dt.4.11.2009.

Ex.A6: Acknowledgment of legal notice.

EXHIITS MARKED ON BEHALF OF ACCUSED:

N I L

EXHIBITS X-SERIES MARKED

Ex.X1: Statement of Account from 25.10.2009 to 29.10.2009.

Ex.X2: Letter of accused dt.9.8.2009 for stop payment in relating to two cheques relating to Ex.P1.

Ex.X3: Cheques returned register, dt.29.10.2009 is the relevant entry.

Sd/- P.R.R.

Spl.J.M.F.C.

IN THE COURT OF THE SPL. JUDL. MAGISTRATE OF I CLASS::SPECIAL MOBILE

COURT::KADAPA

Present:- Sri P. R. Rajeev, B.A.,M.L., I Addl. Judl. Magistrate of I Class, Kadapa. FAC Spl.Judl. Magistrate of I Class, Spl.Mobile Court, Kadapa.

S.T.C.No.88/2010

Monday, the 25th day of February, two thousand and thirteen

Between

K. Krishna Reddy S/o Pulla Reddy, age 50 years, Degalavandlapalli village and post, Sidhout mandal, Kadapa dist. … Complainant

and

T. Bhaskar Reddy S/o T. Parvatha Reddy, age 43 years, D.No.7/477-1C, Near Saivignan School,

N.G.O. Colony, Kadapa city. ... Accused

This case coming on before me for final hearing on 20.2.2013 in the presence of Sri D. Lakshminarayana, advocates for complainant and of Sri G. Ramesh Reddy, advocate for defence, after having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

The complainant filed this complaint against the accused alleging that the accused committed the offence u/s 138 of N.I. Act.

2. The brief averments in the complaint are as follows:

That the complainant and accused are known to each other since long time. Though the accused is public servant he is doing business along with his sister in law Aruna Kumari. Accused obtained hand loan of Rs.7,00,000/- from complainant to meet hs business necessities and in the first week of July, and issued post-dated cheque bearing No.108462, dt.1.10.2009 drawn on

Indian Overseas Bank, Kadapa branch.

3. Complainant accordingly presented the said cheque through his banker State Bank of India, Chinnachowk branch on 13.11.2009, same was dishonored due to cheque stop for payment as per bank memo dt.30.9.2009. Accused deliberately failed to honour the cheque and committed th4e offence u/s 138 r/w 142. Complainant after dishonour of cheque got issued registered legal notice to accused on 18.12.2009 and -: 2 :- accused having received the said notice issued reply not9ice dt.27.12.2009 with all false allegations. As such the accused committed the offence u/s 138 of N.I. Act. Hence, the complaint.

4. This case was taken on file u/s 138 of N.I. Act against the accused.

5. On appearance of accused copies of documents were furnished to him.

6. Accused examined u/s 251 Cr.P.C., substance of offence u/s 138 of N.I. Act has been read over and explained the contents of charge in Telugu, for which he denied, pleaded not guilty and claimed to be tried.

7. During the course of trial, the complainant himself examined as PW.1 and complainant also examined PW.2 on his behalf and got marked Ex.P1 to P7 were marked. Ex.X1 to X3 are marked through

PW.2. Accused himself examined as DW.1 and no documents are marked.

8. After closure of prosecution evidence, accused was examined u/s 313 Cr.P.C. read over and explained the contents of evidence in Telugu, for which he denied and reported no defence.

9. Heard both sides.

10. Now the point for consideration is, whether the prosecution has established the guilt of the accused for the offence u/s 138 r/w 142 of N.I. Act beyond all reasonable doubt?

11. The learned counsel for the complainant argued that in view of acquaintance and also as accused was doing business along with his sister-in-law he borrowed loan of Rs.7,00,000/- from the complainant and issued post-dated cheque. When the complainant presented the said cheque for collection through his banker, same was returned to stop payment and accused was intimated by way of legal notice with regard to -: 3 :- the making arrangement to the same but deliberately avoided the same and hence accused is liable for punishment under the charge leveled against him.

12. On the other hand the learned counsel for the accused filed written-arguments and argued that he has no acquaintance with the complainant and at no point of time he never issued cheque in question to complainant towards discharge of legally enforceable debt. In fact one C. Satyanarayana Reddy who is relative of complainant known to him who stole two signed blank cheques from his house and through complainant got filed present complaint. Said C. Satyanarayana Reddy who is having dealings with sister-in-law of accused and having sustained financial loss she has filed insolvency petition in oder to got over the same said C. Satyanarayana Reddy and complainant got used to signed blank chequs and filed complaint. Accused also preferred complaint with regard to the stolen of cheques and also he intimated bank authorities to stop payment as there is legally enforceable debt prevailing between complainant and accused and as complainant also failed to establish with regard to the same and further complainant has not issued legal notice within stipulated time. Hence prayed for acquittal of the accused.

13. Before going to the merits of the evidence adduced by both complainant and accused in support of their contention in order to know about the relevant provisions as laid down under Negotiable Instruments

Act which are discussed as follows:SECTION 138:- DISHONOUR OF

CHEQUE FOR INSUFFICIENCY, 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 debtor other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honor the cheque or that it exceeds the amount arranged -: 4 :- to honor the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended two years or with fine which may extend to twice the amount of the cheque, or with both;

Provided that nothing contained in this section shall apply unless

(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 maybe, 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 thirty 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 fifteen days of the receipt of the said notice.

EXPLANATION:- For the purposes of this Section ‘ debtor other liability” means a legally enforceable debt or other liability.

SECTION 139:- 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, or any debt or other liability.

14. Section 139 of the Act throws much light on regarding the existence of legally enforceable debt in favour of the complainant against the accused. The offence under Section 138 of the Act can be said to have been committed if only a cheque issued for repayment of legally enforceable debt is not honored, when presented. A reading of the Section 138 of the Act, in isolation, would make one to feel that the complainant has to plead and establish the existence of legally enforceable debt, as a first step in proving the offence under Section 138 of the Act. However, -: 5 :-

Section 139 of the Act requires the court to draw the presumption to the effect that the holder of the cheque has received the same for discharge in whole or in part of any debt or other liability. This presumption, of course, is rebattable. The starting point for the court on this aspect would be to presume the existence of a debt, once the complainant i.e.

holder of a cheque informs that the cheque received by him was dishonored on being presented. On this count, the ordinary principle of law that in criminal cases the burden is always on the prosecution/complainant to establish the guilt against the accused beyond any reasonable doubt stands relaxed.

15. The complainant in order to discharge initial burden which rests on him examined himself as PW.1 and stated that he got acquaintance with the accused since long time and accused who is public servant doing business along with his sister-in-law Aruna Kumari, in that connection, accused obtained hand loan of Rs.7,00,000/- from him to meet his business necessities in the first week of July and in that connection issued post-dated cheque i.e. Ex.P1 on 1.10.2009.

Accordingly he presented Ex.P1 cheque through his banker State Bank of

India, Chinnachowk Kadapa on 13.11.2009 which was dishonored due to cheque stop payment as per Ex.P3 bank return memo dt.16.11.2009.

Accordingly as per Ex.P4 dt.18.12.2008 he got issued legal notice to the accused and Ex.P5 is the postal receipt. Accused having received said legal notice as per Ex.P6 postal acknowledgment got issued Ex.P7 dt.27.12.2009 reply notice. In spite of stipulated time accused failed to clear the amount due under Ex.P1 cheque.

16. The learned counsel for the complainant argued that the complainant by way of oral and documentary evidence successfully established borrowal of Rs.7,00,000/- by the accused from the complainant and towards discharge of the same issued Ex.P1 cheque and the same was -: 6 :- dishonored due to stop payment made by the accused and the accused also failed to clear said amount in spite of intimation to him by way of legal notice. Thus the complainant established that the cheque in question was issued by accused towards discharge of subsisting debt and hence presumption available u/s 139 of N.I. Act operates in favour of complainant.

17. The learned counsel for the complainant in support of his argument placed reliance upon a decision reported in (1) B. V.

RANGAM vs. B. GOVINDA REDDY AND ANOTHER 2004 Crl.L.J.

3170 in a complaint u/s 138 and 139 of N.I. Act with regard to the presumption and burden of proof his Lordship held that presumption u/s 139 can be drawn that complainant discharged his initial burden as legally enforceable debt and burden shifts to the accused to establish that the cheque was not issued against legally enforceable debt.

18. The complainant apart from examining himself as PW.1 also examined PW.2 who is Asst. Manager, Indian Overseas bank, Kadapa and through him got marked Ex.X1 Statement of account of accused from 1.10.2009 to 16.11.2009, Ex.X2 is letter dt.9.8.2009 issued by accused for stop payment relating to Ex.P1 and other cheques, Ex.X3 is dt.14.11.2009 cheque return register on relevant entry. Through PW.2 complainant stated that when Ex.P1 cheque was presented for collection the same was returned as accused instructed the bank to stop payment.

19. Before going to find out whether accused able to rebut the statutory presumption, it is pertinent to refer the decision reported in

M.S. NARAYANA MENON ALIAS MANI vs. STATE OF KERALA

AND ANOTHER (2006) 6 SUPREME COURT CASES 39 where-under their lordship while dealing with Sec.138 and 118 of N.I. Act as well as sec.101 to 109 of Indian Evidence Act held that burden of proof on the accused is not heavy as to that of the prosecution.

-: 7 :-

20. On the other hand the accused in order to rebut statutory presumption apart from cross-examining Pws.1 and 2 also examined himself as DW.1. The contention of accused is that he has no acquaintance with the complainant and he never borrowed any amount from the complainant and also never issued Ex.P1 cheque to complainant towards discharge of subsisting debt. It is the specific contention of the accused that his sister-in-law Aruna Kumari has got dealings with one

C.Satyanarayana Reddy and said C. Satyanarayana Reddy who visited his house stolen Ex.P1 and also another cheque and in that connection after coming to know about the same he preferred police complaint on being referred the same also preferred private complaint and also asked bank authorities to stop payment when the said cheques were presented for collection. His sister-in-law Aruna Kumari filed insolvency proceedings against said C. Satyanarayana Reddy and others, aggrieved over the same said C. Satyanarayana Reddy by taking advantage of the stolen cheques filed complaint and also got filed present complaint through complainant though there is no subsisting debt prevailing between them. In support of his contention he has also cross-examined

PW.1. For better appreciation the admissions made by PW.1 when looked into. PW.1 admitted that he did not mention specifically with regard to the lending of Rs.7,00,000/- to the accused in his chief-affidavit and he is not an income tax assessee. Except Ex.P1 he did not file any other supporting document to show that Ex.P1 cheque was issued for legally enforceable debt. Ex.P1 cheque written with black ball pen. Signature and name written with blue ball pen. Ex.P1 cheque returned due to cheque stop for payment, though initially he stated that he do not have any acquaintance with C. Satyanarayana Reddy subsequently he stated that he know said C. Satyanarayana Reddy. He do not know who written Ex.P1 cheque, he do not know whether Aruna Kumari filed insolvency petition No.32/2009 on -: 8 :- the file of Senior Civil Judge's Court, Kadapa. He do not know how many children and family members of accused. He do not know the paper publication, given by the accused that he lost two cheques on 12.9.2009 and he do not know criminal case filed b the accused against

C. Satyanarayana Reddy regarding lost of two cheques. He has not drawn amount of Rs.7,00,000/- from any bank and he has given said amount which was kept in his house and nobody was present when he lend said amount to the accused and he has lend said loan to accused at his house. He did not file any document to show regarding source of income of having Rs.7,00,000/- in his house. He do not remember about the legal notice issued to the accused but he know its contents.

21. Apart from cross-examining PW.1, accused also examined himself as DW.1 and put-forth that he has no acquaintance with the complainant and at no point of time he never borrowed Rs.7,00,000/- from him and never issued Ex.P1 cheque to the complainant. Accused also stated about his preferring complaint with regard to the said

C.Satyanarayana Reddy stolen his two cheques and also issuance of bank authorities for stop payment of said cheques when it was presented for collection.

22. The detailed cross-examination of Pw.1 goes to show that except Ex.P1 cheque complainant is not having any proof with regard to lending of such a huge amount to the accused. Complainant also did not file any record or examine any other person to show with regard to his earlier dealings and acquaintance with the accused. Complainant also failed to place any record to show with regard to his financial status regarding having such a huge amount on the date when said to have been lend to the accused. Entire admissions made by PW.1 during the cross- examination creates doubt in the mind of court with regard to the lending of such a huge amount to the accused without having any proof. The -: 9 :- question of lending Rs.7,00,000/- by complainant to the accused itself become doubtful.

23. The complainant also admitted that except signature in

Ex.P1 cheque writings in the body of the said cheque are different and he also pleaded ignorance as to who filled the body of Ex.P1 cheque. On this aspect the learned counsel for the accused placed reliance upon the decisions reported in (1) C. ANTONY vs. K.G. RAGHAVAN NAIR in

Crl.Appeal No.1748 of 1996 decided on 1.11.2002 BY THE

HON'BLE SUPREME COURT where-under in a complaint u/s 138 of N.I.

Act when it is contended that there is difference of ink in cheque in question with regard to the signature and its body contents, then their

Lordship held that on perusal of cheque found that ink used in body of cheque is different with that the ink used in signature on the cheque, then inference can be drawn that the contention of the complainant has to be doubted.

24. On the other hand the learned counsel for the complainant also relied upon decisions reported in (1) D. ATCHUTHA

REDDY vs. STATE OF ANDHRA PRADESH AND ANOTHER 2010(1)

ALD 59 (AP) whee under in a complaint u/s 138 of N.I. Act his Lordship body of cheque, not required to be in hand-writing of maker of it and it is not mandatory and no law prescribes that body of cheque should also be written by signatory to the cheque. The cheque could be filled up by anybody if it is signed by account holder of the cheque.

2) in SATISH JAYANTILAL SHAH vs. MASHRUWALA AND

ANOTHER 1996 CRL.L.J. 3099 GUJARAT HIGH COURTin a complaint u/s 139 of N.I. Act, his lordship also held that entire body of the cheque need not be written by maker or drawer, but only material is signature of the drawer. But in view of the decisions rendered by the Hon'ble Supreme Court as referred above by the decisions rendered by the learned counsel for the complainant is not applicable.

-: 10 :-

25. The learned counsel for the accused also relied upon a decision reported in (1) P. NARASIMHA RAO vs. D.L. NARASIMHA

RAO 2004(2) ALD (CRL.) 303 (AP) in a complaint u/s 138 of N.I. Act when the complainant did not adduce any documentary evidence to show that the cheque in question was issued in respect of debt in question, except his oral testimony and testimony of another witness who is said to have been witnesses specific to arrive to conclusion that the cheque in question was issued towards discharge of legally enforceable debt.

2) in A. YESUBABU vs. D. APPALA SWAMY AND ANOTHER 2003(2) ALD (Crl.) 707 (A) in a complaint u/s 138 of N.I. Act in which accused gave cheque for debt which was already time bared and in the circumstances as there is no subsisting liability, then his Lordship held that the existence of subsisting debt is a question of law and it can be raised by the accused for the first time in appeal.

3) in GIRIDHARI LAL RATHI vs. P.T.V. RAMANUJACHARI

AND ANOTHER 1997(1) ALT (CRL.) 509(AP) in a complaint u/s 138 of N.I. Act cheque was issued in the year 1990, loan was advanced during the year 1985 by the time cheque was issued, the debt appears to have been time barred, then his Lordship held that accused could not be prosecuted for the offence u/s 138 of N.I. Act.

The entire oral and documentary evidence placed by accused and also detailed cross-examination of PW.1 established that complainant failed to place any material before the court with regard to the existence of legally enforceable debt between themselves and in that connection Ex.P1 cheque was issued to discharge the same, thereby accused has rebutted the statutory presumption available in favour of the complainant.

26. The learned counsel for the accused further argued that statutory legal notice as in Ex.P4 was not issued to the accused in time as stipulated under N.I. Act. On this aspect on perusal of Ex.P1 and P2 and -: 11 :- evidence of PW.1, Ex.P1 cheque was presented for collection through banker of PW.1 on 13.11.2009. As per Ex.P3 bank return memo dt.16.11.2009 and also evidence of PW.1, 2 coupled with Ex.P3, it was received by complainant on 16.11.2009. But as seen from Ex.P4 legal notice, it was issued on 18.12.2009 and it clearly shows that the statutory legal notice was issued by complainant to accused beyond the period of 30 days which violates the statutory provisions as laid down under N.I. Act that within 30 days after receipt of bank return memo complainant has to issue notice to the accused with regard to dishonor of the cheque. On this count also complaint filed by the complainant fails.

27. The learned counsel for the complainant with regard to the stop payment and though stop payment instructions given to the bank stil offence u/s 138 of N.I. Act maintainable and placed reliance upon the decisions reported in (1) M/S M.M.T.C. LTD. AND ANOTHER vs. M/S MEDCHL

CHEMICALS AND PHARMA (P) LT. AND ANOTHER AIR 2002 SUPREME

COURT 182 in a complaint u/s 138 of N.I. Act question with regard to stop payment instructions, then their Lordship held that even when the cheque is dishonored by reason of stop payment instructions by virtue of Sec.139 the court has to presume that the cheque was received by the holder for discharge, in whole or in part, of any debt or liability.

2) in GOAPLAST PVT. LTD. vs. SHRI CHICO URSULA D'SOUZA AND

ANOTHER A.I.R. 2003 SUPREME COURT 2035 in a complaint u/s 138 of

N.I. Act with regard to stop payment instructions their Lordship held that if stoppage of payment of a post-dated cheque is permitted to take the case out of the purview of Sec.138 of the Act, it wil amount to allow the party to take advantage of his own wrong.

3) in M/S MODI CEMENTS LTD. vs. KUCHIL KUMAR NANDI A.I.R.

1998 SUPREME COURT 1057(1) in a complaint u/s 138 of N.I. Act with regard to stoppage of payment instructions, their lordship held that -: 12 :- notice by drawer to drawee or to bank for stoppage of payment after cheque issued to drawer it would not precluded action under sec.138 of

N.I. Act.

4) in T.P. CHANDRAN vs. M.K. SATHYANANDAN AND

ANOTHER 2000 CRL.L.J. 3728 in a complaint u/s 138 of N.I. Act with regard to stop payment as cheque was returned with endorsement cheque reported stolen, then her lordship held that once cheque is issued by drawer, a presumption under Sec.139 must follow and even though it is not endorsed in the cheque, intention to stop payment is implied.

5) in K. BHASKARAN vs. SANKARAN VAIDHYAN BALAN

AND ANOTHER (1999) 7 SUPREME COURT CASES 510 in a complaint u/s 138 of N.I. Act, their lordship held that with regard to awarding compensation to complainant as per Sec.357(3) Cr.P.C.

The decisions relied upon by the learned counsel for the complainant is not applicable to the present set of facts as it is categorically established by the accused under what circumstances he has issued instructions to the banker to stop payment of cheques and further question of legally enforceable debt prevailing between complainant and accused itself is doubtful in the present case.

28. The learned counsel for accused argued that accused set up contradicting defence that cheques stolen at one stage and lost at another stage and the defence of accused is not consistent. On this aspect on perusal of decision reported in K. KRISHNA REDDY vs. K. RAJENDER AND

ANOTHER 2012(1) ALD (CRL.) 934 (A.P.) in a complaint u/s 138 of N.I. Act when the complainant contended the accused in discharge of Rs.75,000/- borrowed from him issued cheque in question and accused contended that there is no acquaintance with the complainant and he never borrowed any amount from him and having lost his hand bag which was containing signed blank cheques and promissory -: 13 :- note he also gave police report and stop payment. When the complainant failed to produce bank statement any books or statement of account showing he advanced said amount to accused and also not supported by the income tax returns, then his Lordship held that is doubtful regarding existence of legally enforceable debt and also through the story of accused about the loss of hand bag appears artificial as opined by trial court, the same cannot be considered to be proof of existence of a legally enforceable debt or liability and accordingly dismissed the complaint.

29. Though complainant examined himself as PW.1 and also

PW.2 on his behalf, but entire cross-examination done by the accused and also defence set up by the accused established that there is no legally enforceable debt prevailing between complainant and accused and that Ex.P1 cheque was not issued by him with regard to the subsisting debt and thereby accused successfully rebutted the presumption and established burden which rests on him.

30. For the forgoing reasons the complainant failed to establish guilt of the accused and accused is accordingly acquitted.

31. In the result, accused found not guilty of the offence u/s 138 r/w 142 of N.I. Act and for the same he is acquitted u/s 255(1)

Cr.P.C. His bail bonds if any shall stand canceled. Accused shall furnish a bond u/s 437(a) Cr.P.C. that he shall appear before the Appellate Court in the event he receives summons within six months from today.

Dictated to the Personal-Asst., transcribed by him, corrected and

pronounced by me in open court on this the 25th day of February

2013.

Sd/- P.R.Rajeev,

I ADDL. JUDL. MAGISTRATEOF I CLASS,

FAC SPECIAL MOBILE COURT, KADAPA

-: 14 :-

APPENDIX OF EVIDENCE IN

WITNESSES EXAMINED FOR

FOR PROSECUTION FOR DEFENCE

PW.1: S. Krishna Reddy DW.1: T. Bhaskar Reddy.

PW.2: N. Shanmukam, Manager, Indian Overseas bank.

EXHIBITS MARKED ON BEHALF OF COMPLAINANT:-

Ex.A1: Cheque bearing No.108462 dt.1.10.20109 issued by accused

Ex.A2: Credit voucher dt.13.12.2009.

Ex.A3: Memo issued by Indian Overseas Bank, Kadapa, dt.16.11.2009.

Ex.A4: Office copy of legal notice, dt.18.12.2009.

Ex.A5: Postal receipt dt.18.12.2009

Ex.A6: Acknowledgment, dt.31.12.2009.

Ex.A7: Reply legal notice, dt.27.12.2009.

EXHIITS MARKED ON BEHALF OF ACCUSED:

N I L

EXHIBITS X-SERIES MARKED

Ex.X1: Statement of Account from 1.10.2009 to 16.11.2009.

Ex.X2: Letter of accused dt.9.8.2009 for stop payment in relating to two cheques relating to Ex.P1.

Ex.X3: Cheques returned register, dt.14.11.2009 is the relevant entry.

Sd/- P.R.R.

Spl.J.M.F.C. Spl.Mobile Court, Kadapa.

IN THE COURTOF THE SPL. JUDL. MAGISTRATE OF I CLASS::SPECIAL MOBILE

COURT::KADAPA

Present:- Sri P. R. Rajeev, B.A.,M.L., I Addl. Judl. Magistrate of I Class, Kadapa. FAC SPL.JUDL.MAGISTRATE OF ICLASS, SPECIAL MOBILE COURT, KADAPA

C.C.No.93/2011

Tuesday, the 19th day of March, two thousand and thirteen

Between M. Vijaya Narasimha Reddy, S/o Subba Reddy D.No.7/288-14, Bhyagya Nagar Colony, Chinnachowk, Kadapa … Complainant

and

1. Adimulam Siva Nagendra Kumar S/.o Mahananda, age 46 years, Police constable, D.No.7/288, Bhagya Nagar Colony, Kadapa (2) Latha W/o Siva Nagendra Kumar, D.No.7/288, Bhagya Nagar colony, Chinnachowk, Kadapa.

3. Challa Ramachandra Reddy S/o Pitchi Reddy, age 54 years, Rtd. V.R.O., Chinna Nagireddipalli, Vallur mandal.

4. Billa Subba Narasaiah, S/o Narasimhulu, D.No.17/454, Sathu Chenganna Street, Kadapa. (Case against A2 is abated as died) … Accused

This case coming on before me for final hearing on 14.3.2013 in the presence of Sri S. Nazeer Basha, advocate for complainant and of Sri M. Sudhakar Babjee, advocate for defence, after having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

The Complainant filed this complaint u/s 190(1)(b) of Cr.P.C.

before this court and the complainant himself examined as PW.1 and

he alleged that on 16.3.2009 at about 11 A.M. He went to

Superintendent of Police Kadapa in order to make representation to S.P.,

Kadapa against A1 as A1 threatened him that he is a police officer while he was making construction of compound wall at his house, accordingly his representation was forwarded to Chinnachowk police station, Kadapa for investigation, then the Chinnachowk police called him to police station and informed that Parliamentary elections was going on and asked him to wait till 23.4.2009, accordingly he kept quite, that on 9.4.2009 at about 10.30 A.M. when he along with his son were present in his house, after noticing -: 2 :-

A1, A3 and A4 of you came and erecting windows in the disputed wall then he along with his son went and questioned you and then A1 of you beat his son with brick stone on his mouth resulting injury, that A3 and

A4 of you also beat his son Veena Reddy with stick, his son sustained injuries on his right hand left palm and upper lip, that at that time one

Rangaiah Setty, Siva Rami Reddy and others who gathered there rescued them, then he along with his son went to Chinnachowk police station and he gave report before police, police referred his son to hospital for treatment, Ex.P1 is his report before police, that on the same day evening he again approached police and gave another report stating by mistake he mentioned the name of A1 as Sreenivasan by mistake but his name is A. Siva Nagendra Kumar, that police did not investigate into his report, that police also registered the case against them upon the complaint preferred by A1 on 12.4-2009 and the said case went on for trial and it is ended in acquittal, as police failed to take any action upon his complaint he filed present complaint, he filed certified copy of F.I.R. In

Cr.NO.58/2009 along with complaint and also subsequent complaint out patient slip. Hence, the complaint.

3. This case was taken on file u/s 324 IPC against the accused.

4. On appearance of accused, copies of documents were furnished to them.

5. A1, A3 and A4 are examined u/s 246(1) Cr.P.C. Charge u/s 324

IPC been framed, read over and explained the contents of offence in Telugu, for which accused pleaded not guilty and claimed to be tried.

5. During the course of trial the prosecution has been examined

Pws.1 to 4 and got marked Ex.P1.

6. After closure of prosecution evidence accused was examined u/s 313 Cr.P.C. Read over and explained the contents of evidence in Telugu, for which they denied and reported no defence.

7. Heard both sides.

-: 3 :-

8. Now the point for consideration is whether the prosecution has established its case against the accused for the offence punishable u/s 324 IPC beyond all reasonable doubt?

9. The learned counsel for the complainant argued that the evidence of complainant and other witnesses categorically established that the accused beat Pws.1 and 2 and caused injuries when they questioned the high handed acts of the accused erecting compound wall over the disputed site. Hence, accused are liable for punishment under the charges leveled against them.

10. On the other hand the learned counsel for the accused argued that the entire evidence of prosecution witnesses and injured complainant and it is also not supported by independent evidence. The complainant did not choose to examine the medical officer in support of the injuries sustained by the injured. When the accused attending work at their house, high handedly PW.2 along with PW.1 came and tried to remove the window frame, as a result he fell down and sustained injuries and taking advantage of the same foisted case against the accused.

Hence prayed for acquittal of the accused.

11. It is the case of complainant ht the complainant preferred complaint before the Station House Officer, Chinnachowk police station against the accused on 9.4.2009 at about 11 A.M. And the said case was registered in

Cr.NO.58/2009 u/s 324 r/w 34 IPC. Since the date of registration of the crime, police are silent and they neither arrested the accused nor took up investigation in the crime, as A1 is police constable and is influential person in the department. Hence, the complaint.

12. The complainant himself examined as PW.1, Pws.2 to 4 on his behalf and got marked Ex.P1. Whereas none were examined on behalf of the accused and no documents were marked.

13. It is not in dispute that Pws.1 to 3 are inter-related to each -: 4 :- other and Pw.4 is the independent witness to the incident. PW.1 stated that on 16.3.2009 at about 11 A.M. He went to Superintendent of Police,

Kadapa in order to make representation against a1 who threatened him that he is police officer while he was making construction of compound wall at his house. The representation given by him was forwarded to

Chinnachowk police without investigation and the Chinnachowk police asked him to wait for some time till 23.4.2009 as Parliamentary elections are going on and accordingly he kept quite. On 9.4.2009 at about 10.30

A.M. When he along with his son were present in his house after noticing

A1, A3 and A4 came and erecting windows in the disputed wall, then they went and questioned them, on that A1 beat his son with brick stone on his mouth which resulted injury. A3 and A4 also beat his son PW.2 with sticks and his son sustained injuries on his right hand, left palm and upper lip. At that time one Rangamsetty Siva Rami Reddy and others who came there rescued them. Then they went to Chinnachowk police station and presented report which is marked as Ex.P1 and police referred his son to hospital for treatment. On the same day evening hours again he approached police stating that by mistake he mentioned name of A1 Sreenivasan, but his name is A. Siva Nagendra Kumar. Police also registered the case against them upon the complaint preferred by

A1 and the said case ended in acquittal, as police did not take any action, upon his complaint, he preferred present complaint.

14. PW.2 stated that on 9.4.2009 at about 9.30 A.M., A1, A3 and

A4 along with some other persons came to their house for the purpose of constructing wall by the side of their house. On seeing the same when PW.1 questioned accused, they went upon him. On seeing the same he intervened, then A1 beat him with stone on his right side portion near lips. A4 beat him with stick on his right hand and A3 beat him on his left hand which resulted injuries in between left thumb index finger. At the time of -: 5 :- incident, his sister PW.3, mother Rama Devi, Rangaiah, Siva Rami Reddy were present. They went to police station, from there they were referred to hospital for treatment. PW.3 also stated that on 9.4.2009 at about 11

AS.M. When A1 tried to erect wall by the side of their house, PW.1 and 23 objected them, A1 to A3 and others beat PW.2 with sticks and stone, as a result he sustained fracture to one of his hand and injuries on his lips. The neighbours rescued her brother and asked them to approach police. PW.4 who is independent witness to the incident stated that on the date of incident at about 10 A.M. While he was present in the varandah of his house, three persons beat PW.2, then he went along with

PW.1, but he cannot identify the said three persons. One week ago A3 approached him and asked whether he has seen him along with any other person.

15. It is clear from the testimony of Pws.1 to 3 that there are disputes prevailing between themselves and accused with regard to the disputed site. It has came during the cross-examination of Pws.1 and 2 that since 1995 there are disputes prevailing between PW.1 and A4 with regard to the disputed house of A3. Originally A4 sold the disputed hose to

A3 Even prior to the date of incident and A3 in turn sold the same to A1. A1 to

A3 never resided in the disputed house. It is also not in dispute that A1 filed criminal case against PW.1 and other family members in the year 2009 that they damaged the house property, but the said case ended in acquittal.

16. As far as specific overt-acts against the incident is concerned, the evidence of Pws.1 to 3 are contradicting with each other. It is the specific contention of the accused that they never beat PW.2 and in fact on the date of incident when the window frames were fixed to the wall of the house belongs to A1, aggrieved over the same PW.2 high handedly came and removed the same, in that process he fell down and sustained injuries. In that connection

A1 also preferred criminal case -: 6 :- against Pw.1 and 2 and other family members. Apart from the testimony of PW.1 to 3, PW.4 who is independent witness to the incident failed to identity the presence of A1, A3 and A4 at the time of incident. PW.4 specifically admitted that by the time he reached the place of offence both Pws.1 and 2 were beaten. PW.4 also did not state specific overt- acts against the accused and his entire evidence failed to disclose the identical particulars is silent who beat PW.1 and 2.

17. It is clear that the initial complaint preferred by PW.1

before the police with regard to the incident was referred by the police

as false. Aggrieved over the same PW.1 filed the complaint under protest challenging the final report preferred by police. The detailed cross-examination of Pws.1 to 3 shows that their evidence are contradicting with each other with regard to the incident is concerned.

Pws.1 to 3 gave their own version with regard tot he motive for the incident. PW.1 admitted during the cross-examination that in the year 1996 when the windows as well as sun shade were erected in the disputed house property by A1, he removed the same. He did not sustain any injuries during the incident. PW.2 admitted during the cross- examination that on the date of incident windows being erected in the disputed hose property, apart from the accused there are some other persons were also present and the coolies who were present were attending construction work. PW.3 admitted that the workers were fixing windows in the place which belongs to A1 and it is at a distance of 20 feet southern side of their house. She cannot identify the person who were present at the place of incident as number of persons were gathered. The admissions made by Pws.1 to 3 during their cross-examination clearly establishes the motive for the dispute put-forth by the prosecution. Pws.1 to 3 failed to state as to where actually windows being erected in the disputed site, at one stage they have categorically admitted that the workers of A1 were attending the work by erecting windows in -: 7 :- the wall belongs to A1. If such is the case, it is not the case as to what objection Pws.1 and 2 has got. When PW.1 again admitted during he cross-examination that he removed the windows as well as sun shades erected by A1 in the disputed property in the year 2009, if such is the case which version of the complainant has to be believed and motive for the incident. The entire material placed by complainant is suffers from infirmities and also not consistent.

18. Though Pws.1 to 3 stated that PW.2 sustained injuries during the incident and also took treatment in the hospital. Admittedly the medical officer who treated PW.2 neither examined in support of the contention of complainant. Nothing has been placed by the complainant to disprove the version as police that the complaint lodged before the police as false. There is abnormal delay in preferring complaint and the entire material placed by the complainant is not convincing to explain the same.

19. In view of the contradicting version emerging from the testimony of complainant and other witnesses and it is also not supported by independent evidence. Further the complainant also failed to establish the injuries sustained by PW.2 by placing medical evidence.

20. For the forgoing reasons the prosecution failed to bring home the guilt of the accused and accused are accordingly acquitted.

21. In the result, A1, A3 and A4 found not guilty of the offence u/s 324 IPC and for the same they are acquitted u/s 248(1)

Cr.P.C. Their bail bonds if any shall stand canceled. Accused shall furnish a bond u/s 437(a) Cr.P.C. that they shall appear before the

Appellate Court in the event they receives summons within six months from today.

Dictated to the Personal-Asst., transcribed by him, corrected

-: 8 :- and pronounced by me in open court on this the 19th day of March, 2013.

Sd/- P.R.Rajeev,

I ADDL. JUDL. MAGISTRATEOF I CLASS, KADAPA

FAC SPL.JUDL.MAGISTRATE OF I CLASS, SPECIAL

MOBILE COURT,KADAPA.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

FOR PROSECUTION FOR DEFENCE

PW.1: M. Vijaya Narasimha Reddy.

PW.2: M. Veera Reddy N I L

PW.3: M. Pushpalatha

PW.4: K.B. Rangaiah.

EXHIBITS MARKED FOR

Ex.P1: Complaint given by PW.1 to police. N I L

MATERIAL OBJECTS MARKED

N I L

Sd/- P.R.R.

SPL..J.M.F.C.

SPL.MOBILE COURT,KDP.

IN THE COURT OF THE I ADDL. JUDL. MAGISTRATE OF I CLASS::KADAPA

Present:- Sri P.R. Rajeev, B.A., M.L., I Addl. Judl.Magistrate of I class, Kadapa.

C.C.No.3/2013

Wednesday, the 17th day of April, two thousand and thirteen

Between

State: Sub-Inspector of Police, Kadapa I Town U/G police station … Complainant

and

1. Mekala Veera Swamy S/o Venkataiah, age 48 years, Vaddera by caste, Pathuru, Kapparallathippa, Bogalu Mandal, Nellore district.

2. Bonala Ramesh S/o Prakasam, age 46 years, Vaddera by caste, R/o Indiramma Colony, Kapparalla-

Thippa, Bogalu Mandal, Nellore dist. ... Accused

This case coming on before me for final hearing on 15.4.2013 in the presence of Senior Public Prosecutor for prosecution and of Sri D. Reddaiah, Sri Y.S. Rayudu and Sri S. Balaji, advocate for defence, after having stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

The Inspector of police, Kadapa I town U/G police station filed charge sheet in Cr.No.204/2012 u/s 379 or 411 IPC against the accused.

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

On 4.8.2012 LW.1 Munagala Mala Konda Reddy came to

Kadapa and met LW.2 Guvvala Raghurami Reddy. In the meantime LW.7

Padmaraju Rajasekhar Raju came to him and gave a cheque bearing

No.033269 for Rs.3,00,000/- of ICICI Bank, Kadapa. Around 11 A.M. LW.1

M.Mala Konda Reddy and LW.2 G. Raghurami Reddy went to ICICI Bank and presented cheque to LW.4 Vishal Asher who sent the same for verification to LW.5G.Bhaskar Rao and in turn he ordered to pay the amount. Meanwhile at about 11 A.M. LW.4 Vishal Asher handed over cash of Rs.3,00,000/- and Lw.1 Mala Konda Reddy kept the amount in red colour bag and came out side. He kept the cash bag in the tank cover of his motor cycle, at the same time LW.2 G.Raghurami Reddy phoned to his cell, after talking him handed over the cell to LW.1 Mala Monda Reddy, -: 2 :- while talking in the cell phone accused crossed them. A1 committed theft of the said cash bag and both accused ran away and reached their motor cycle, where it was parked by them and went to Railway station side on the said motor cycle speedily. LW.6 K. Peddi Reddy witnessed the same and informed that the amount which was kept in the tank cover was stolen by some persons and ran away towards Kotireddi circle. At about 11.15

A.M. Immediately they also followed him up to Sandhya cinema hall.

Later LW.1 Bala Konda Reddy approached police and presented compliant and basing on the same a case was registered and investigated into.

3. On 12.10.2012 at 9.30 A.M. While LW.16 Inspector of Police,

Kadapa CCS police station received information about the accused, later informed LW.17 Inspector of Police, Kadapa I town police station then he along with LW.15 Sub-Inspector of Police, Kadapa I town police station and staff reached CCS police station. Then they all reached YSR circle on

Kadapa – Rajampet main road, Kadapa city at 11 A.M. Meantime accused came on motor cycle towards Kadapa town and on seeing police party, accused attempted to skulk away, but police apprehended them with the help of staff and on interrogation accused voluntarily confessed about the offence and Lw.16 Inspector of Police recorded the same and seized (1) one gold bracelet and gold ring studded with white stones concerned in

Cr.NO.32/2010 of Rayachoty (U) police station, (2) one gold bracelet and gold sada ring concerned in Cr.No.243/2010 of Rayachoty (U) police station, (3) one gold Bharathi chain concerned in Cr.NO.293/2010 of

Rayachoty (U) police station, (4) one gold sada chain concerned in

Cr.NO.111/2011 of Rayachoty (U) police station, (5) red colour plastic bag containing Rs.2,50,000/- concerned in Cr.No.196/2012 of Kadapa I town police station (6) red colour cloth bag containing Rs.2,25,000/- cash concerned in Cr.No.204/2012 of Kadapa I town police station and (7) one black colour texas bag containing cash of Rs.2,00,000/- concerned in -: 3 :-

Cr.No.251/2012 of Kadapa I town police station, one green colour love symbol cloth bag, one sticks bag, Apache motor cycle and it is not having any registration number and on verification the Engine No.0E4AB2218112 and Chassis No.MD634KE 42B2A50829, RTR 160 black colour under cover of panchanama in the presence of pancnayatars. Later accused were sent for remand to judicial custody. After completion of investigation he filed charge sheet.

4. This case was taken on file u/s 379 or 411 IPC against the accused.

5. On appearance of accused, copies of documents were furnished to them.

6. A1 and A2 were examined u/s 239 Cr.P.C. Charge u/s 411

IPC have been framed, read over and explained the contents of offence in Telugu, for which accused pleaded not guilty and claimed to be tried.

7. During the course of trial the prosecution has examined

Pws.1 to 6 and got marked Ex.P1 to P4 and Mo.1. The evidence of LW.2

Guvvala Raghurami Reddy, LW.3 Mungala Murali Krishna Reddy, LW.5

Gummala Bhaskar Rao, LW.9 K.Sreenivasa Varma, H.C.850, LW.10

S.Jayasankar H.C.1683, LW.11 S. Sivaji Ganesh Rao H.C.286, LW.12 A.

Abraham H.C.1087, LW.13 B. Bala Maddileti S.I. Of Police, LW.14 t.

Ranganayakulu S.I. Of Police and LW.16 P. Showkath Ali Khan Inspector of

Police was given up by the learned A.P.P. Hence, their evidence was closed.

8. After closure of prosecution evidence accused was examined u/s 313 Cr.P.C. read over and explained the contents of evidence in Telugu, for which they denied and reported no defence.

9. Heard both sides.

10. Now the point for consideration is whether the prosecution has established its case against the accused for the offence punishable u/s -: 4 :- 411 IPC beyond all reasonable doubt?

11. The learned A.P.P. argued that the evidence of prosecution witnesses shows that accused was in possession of stolen property and that they were arrested and the same were recovered under cover of panchanama in the presence of panchayatdars Hence, accused are liable for punishment under the charge leveled against him.

11. On the other hand the learned counsel for the accused argued that the entire evidence of panchayatdars are contradicting with that of the investigating officer and thereby it create doubt with regard tot he seizure of stolen property from their possession under cover of panchanama and in the circumstances prosecution failed to bring home the guilt of the accused. Hence, prayed for acquittal of the accused.

12. It is the case of prosecution that PW.1 is resident of

Khajipet mandal and living by cultivation and is having Popaya garden.

PW.4 took contract of Popaya garden of Pw.1 and used to transport popaya fruits and used to pay money through cheque to Pw.1. On 4.8.2012 PW.1 along with others went ICICI Bank and presented cheque before PW.2 and collected Rs.3 lakh and kept the same in red colour bag and kept the same above the oil tanker of his motor cycle. At that time he received phone call form his friend and while he was attending the same, in the meanwhile somebody committed theft of bag which was containing cash of

Rs.3 lakh. On search of the cash as he could not found he approached police and presented complaint which was registered and investigated into.

13. During the course of investigation on 12.10.2012 investigating officer arrested A1 and A2 and seized property relating to this case and also other crimes under cover of panchanama in the presence of panchayatdars and later accused were sent to court for judicial custody. Hence, the charge.

-: 5 :-

14. The prosecution in order to bring home the guilt of the accused examined on their behalf Pws.1 to 6 and got marked Ex.P1 to P4 and Mo.1.

15. The prosecution with regard to the ownership of MO.1 cash of Rs.2,25,000/- and also same has been subjected to theft mainly relied upon the testimony of PW.1. PW.1 stated that on 4.8.2012 he along with

G. Raghurami Reddy (LW.2) went to ICICI Bank and encashed the cheque for Rs.3 lakh and kept the cash in his motor cycle and in the meanwhile when he was got phone to his mobile phone he was attending the same and in the meanwhile somebody committed theft of cash which was kept in his motor cycle. Immediately he searched for the cash, as he could not found, he approached police and presented Ex.P1 complaint.

Subsequently he also identified his recovered cash of Rs.2,25,000/- by the police it is marked as MO.1.

16. Apart from the testimony of PW.1, on perusal of evidence of PW.2 and 3 who are bank officials they have also stated that Pw.1 approached their bank on 4.8.2012 and after presenting cheque for rs.3 lakh encashed cash of Rs.3 lakh and subsequently they came to know that the said cash was subjected to theft. The defence of accused as well as cross-examination of Pws.1 to 3 did not dispute the ownership of MO.1 cash as well as same being subjected to theft and in the circumstances prosecution has successfully established that MO.1 cash belongs to Pw.1 and the same was subjected to theft.

17. As far as arrest of A1 and A2 and seizure of MO.1 cash from their possession under cover of panchanama the prosecution relied upon the testimony of Pws.4 to 6. Pws.4 and 5 are independent witnesses and PW.6 is the police official. On scrutiny of testimony of Pws.4, 5 and 6,

Pws.4 and 5 stated that one Brahmam police constable of CCS police station, Kadapa approached them on one day and took them to CCS police -: 6 :- station, Kadapa at about 5 P.M. and at his instance they both signed in some written papers without knowing its contents. As both Pws.4 and 5 identified their signatures in panchanama, dt.12.10.2012 they are marked as Ex.P2 and P3 respectively. It is clear from the testimony of PWs.4 and 5 that accused were not arrested in their presence and no property seized from their possession under cover of panchanama, dt.12.10.2012. Though the learned A.P.P. treated hostile Pws.4 and 5 and cross-examined, but nothing placed during their cross-examination to show that they are speaking falsehood.

18. In view of the testimony of Pws.4 and 5 only testimony that is left for scrutiny is the testimony of PW.6. On perusal of testimony of Pw.6 he being the Inspector of police, CCS Police Station, Kadapa on information he along with his staff and after securing panchayatdars Pws.4 and 5 on 12.10.2012 at about 9.30 9.30 P.M. they all reached YSR circle on Kadapa – Rajampet road at about 11 A.M. There when A1 and A2 who were coming on motor cycle by keeping two bags and on seeing them, when they tried to ran away, they were apprehended and on verification of the bags possessed by the accused No.1 and 2, A1 was in possession of cash of Rs.2,00,000/- and A2 was in possession of Rs.4,75,000/- along with gold ornaments. Accordingly A1 and A2 were arrested and cash as well as gold ornaments were seized under cover of panchanama, dt.12.10.2012 it is marked as Ex.P6. PW.6 further stated that the Inspector of Police,

Kadapa I town police station as well as Sub-Inspector of Polcie identified the seized cash belongs to crime relating to their station.

19. As per the testimony of Pw.6 coupled with Ex.P6 panchanama contents, entire proceedings said to have been took place in the presence of Pws.4 and 5. As discussed Pws.4 and 5 failed to state about arrest of accused and seizure of MO.1 along with other properties as mentioned in Ex.P6 panchanama by Pw.6 in their presence. Apart from -: 7 :- the detailed cross-examination of PW.6 also shows that it is not corroborating with that of Ex.P6 panchanama contents. PW.6 did not elaborate the details of cash as well as gold ornaments, contents under cover of Ex.P6 panchanama. PW.6 also admitted that they did not obtain signature of panchayatdars and also they also did not signed on the seized property i.e. Ex.P6 panchanama also silent with regard to the procedure followed by PW.6 regarding seizure of alleged cash as well as gold ornaments under cover of Ex.P6 panchanama. PW.6 did not state anything about the descriptive particulars of Apache motor cycle seized under cover of Ex.P6 panchanama. Entire testimony of PW.6 in the absence of corroboration of PWs.4 and 5 it has to be looked with suspicion whether entire incident took lace as in Ex.P6 panchanama contents. For the forgoing reasons the entire testimony of PW.6 coupled with Ex.P6 has to be looked with suspicion.

20. The prosecution though examined PWs.1 to 6, but failed to establish that accused committed theft of MO.1 cash as well as other property covered under Ex.P6 panchanama were recovered from the possession of the accused.

21. For the forgoing reasons the prosecution failed to bring home the guilt of the accused and accused are accordingly acquitted.

22. In the result, A1 and A2 found not guilty of the offence u/s 411 IPC and for the same they are acquitted u/s 248(1) Cr.P.C.

Their bail bonds if any shall stand canceled. Accused shall furnish a bond u/s 437(a) Cr.P.C that they shall appear before the Appellate Court in the event they receives summons within six months from today. Mo.1 which is already given interim custody to PW.1 shall be made absolute after appeal time is over.

Typed to my dictation, corrected and pronounced by me in -: 8 :- open court on this the 17th day of April, 2013.

Sd/- P.R.Rajeev,

I ADDL.JUDL. MAGISTRATE OF I CLASS,

K A D A P A.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

FOR PROSECUTION FOR DEFENCE

PW.1: M. Mala Konda Reddy

PW.2: Vishal Ashar N I L

PW.3: K. Peddi Reddy

PW.4: P. Rajasekhar Raju.

PW.5: P. Ramakrishna

PW.6: R. Purushotham Raju, C.I. Of Police.

EXHIBITS MARKED FOR IN C.C.NO.3/2013, DT.17.4.2013

FOR PROSECUTION FOR DEFENCE

Ex.P1: Complaint given by PW.1 to police

Ex.P2: Signature of PW.4 in C.C. of panchanama, dt.12.10.2012. N I L

Ex.P3: Signature of PW.5 in C.C. Of panchanama, dt.12.10.2012.

Ex.P4: C.C. Of Panchanama, dt.12.10.2012 at 11 A.M.

MATERIAL OBJECTS MARKED

Mo.1: Cash of Rs.2,25,000/-

Sd/- P.R.R.

I A.J.M.F.C.