Sri.p.srinivas

1

IN THE COURT OF THE III ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS::

TIRUPATI

Present :: Sri P.Srinivas, III Additional Judicial Magistrate of First Class, Tirupati

Friday, the fifteenth (15th) day of May, two thousand fifteen

C.C.No.369 of 2012

The State of Andhra Pradesh, rep., by its, the Sub Inspector of Police, West Police Station. Tirupati (Cr.No.80/2005 of West Police Station)

...Complainant

-Versus- 1T. Zamshaeed Basha, age 32 years, S/o T.Lalu Saheb, 2T.Rukhiyabee, age 65 years, D/o T.Abdul Salam Saheb, 3S. Noorjahan Bhee, age 40 years, W/o Mahammad Safiulla Basha 4Mahammad Sajiulla Basha, age 42 years, S/o Noorulla Basha

All are residing at D.No.10-30, Bhapujee Street, Sullurpet, Nellore Dist., and also at Chellakur (M) Near Post Office Building, Nellore District.

Hon'ble High Court passed orders in Criminal Petition No.9554/2010 dt.22.03.2013 and

quashed the proceedings against A2 to A4 only.

....Accused

This case is coming on 14-05-2015 before me for final hearing in the presence of the learned Assistant Public prosecutor for State and of Sri Mukku Sathyavanthudu, Sri T.Mohan and Sri P.Balaji, Advocates for the accused and upon hearing their arguments and upon perusing the documents available on record and having stood over for consideration till this day, the court delivered the following:

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

1.The Sub-Inspector of police Mahila P.S. Tirupati filed charge sheet against accused for the offence punishable u/s.498-A IPC.

2.The brief facts of the case of the prosecution that : the marriage of S.Haseena laws given in marriage to ones. Ghouse Basha in the year 1995 and he divorced her. Later she married A1 of you in the year 2002 as per Muslim rites and custom. At the time of marriae her parents gave Rs.75,000/- cash and 25 sovereigns of gold ornaments apart from household articles 2 and they bared the marriage expnses about Rs.1,00,000/-. A1 and the said haseena lived happily for some time and she gave birth to a female child. Thereafter differences arose between you and she reported the matter to West Police Station about the harassment of A1 to A4 of you being her husband and her relatives. Then the matter was pacified by the police and lived happily for some time . All the accused lived together in a house at Chellakur, in the absence of A1, A4 used to force Haseena to have sexual intercourse with him for that she refused. On that A4 developed grudge against her and instigated A1 to harass her for flimsy reasons. A3 and A4 are wife and husband and you are not blessed with children. A3 of you used to take away the child of Haseena and harassed her mentally with out returning her child. Al of you started to harass her for want of

additional amount. A2 to A4 of you used to harass her on false pretexts and instigated A1 to

harass her and causing mental agony. A1 used to beat her and harass her both physically and mentally. Having not beared your harassment she came to her maternal aunt's house at Tirupati.

All accused came to Tirupati and quarreled with her and created galata. After completion of investigation LW11 laid charge sheet against A1 to A4 for the offence punishable u/Sec.498-A

IPC.

3.The case was taken on file against the accused/A1 to A4 for the offence punishable under Section u/s.498-A IPC.

4.On appearance of the accused/A1 to A4, the copies of case documents were furnishd to them u/s.207 Cr.P.C. and they were examined u/s.239 Cr.P.C. In which, the accused

A1 to A4 denied the offence punishable u/Section u/s.498-A IPC and pleaded not guilty and claimed to be tried.

5.A1 to A4 approached Hon'ble High Court to quash the proceedings against them but the Hon'ble High Court passed orders in Criminal Petition No.9554/2010 dt.22.03.2013 and quashed the proceedings against A2 to A4 only and the petition in respect of A1 is dismissed.

6.During the course of trial, on behalf of the prosecution, PWs-1 to 7 examined and got marked Exs.P-1 & P2 on behalf of the prosecution.

7.After closure of prosecution evidence, the accused A1 was examined u/s.313

Cr.P.C. with regard to incriminating material found in the evidence of prosecution witnesses, the accused denied the same and reported no defence evidence on his behalf.

8.Heard both sides.

9.Now the point for determination is

1)Whether the accused A1 being the husband of PW1 subjected to PW1 to 3 cruelty by any willful conduct which was of a such a nature as is lkely to cause grave injury to health whether mentally or physically or PW1 or he cruelty was with a view to corecive PW1 or any person related to her to meet any unlaful demand for any additional dowry?

2)Whether the prosecution is able to bring home the guilt of the offence charged u/Sec.498-A IPC against the accused/A1 beyond all reasonable doubts?

10.The learned Public Prosecutor submitted her arguments stating that PW1 is the complainant wife of accused/A1 and PW2 is father of the PW1, PW3 is maternal aunt of PW1,

PW4 is neighbour of house of PW3, PW5 is independent witness, PW6 who registered Ex.P1 and issued Ex.P2 FIR later he hand over CD filed to PW7 to conduct investigation and laid charge sheet. The learned Public Prosecutor further argued that the 1st husband of PW1 after married her left her as he was mentally retorted and they never lived together and after giving talak to him, PW2 performed the marriage of PW1 with A1on 02.03.2002 at Railwaykodur and the father of the PW1 also presented an amount of Rs.75,000/- and 25 sovereigns of gold and also given

Rs.1,00,000/- worth of household articles and bear the marriage expenses. During their wedlock

PW1 gave birth of female child by name Rikha Begam since then accused and his family members harassed her both physically and mentally and the family members of A1 are not allowed PW1 to spend with her daughter and they always abused her and so many mediations was going on but the accused did not change their attitude, at last PW1 gave Ex.P1 report to police and PW2 to 5 corroborated the evidence of PW5, hence the prosecution proved its case beyond all reasonable doubt. Hence accused is liable to be convicted.

11.On the other hand the defence counsel submitted his argument stating that no cause of action arose within the jurisdiction of this court and no alleged offence has been taken within the limits of this Hon'ble court jurisdiction and the marriage of PW1 and A1 taken place at

Railwaykodur and after the marriage both lived together at Sulurpet and there is no whisper of word from the entire evidence of prosecution that both PW1 and accused lived together in the house of PW3 who is maternal aunt of PW1. Merely PW3 is elder sister of PW2 who is alleged to be residing in Gali Street, Tirupati, PW3 have no right to give any report of Mahila Police

Station, Tirupati at best she can lodge report at Railwaykodur or at Sulurpet only and he further argued that the entire contents of Ex.P1 clearly disclosed no offence punishable u/s.498-A is committed, because PW1 herself admitted in her cross-examination that she has mentioned in

Ex.P1 that she requested the police to hand over her child to her custody. When the dispute between PW1 and accused pertaining to the daughter of PW1, the question of alleged harassment made by accused for additional dowry or any cruelty against PW1 does not arise and he further argued that PW1 without obtaining any divorce from her first husband, the 2nd marriage with A1 not valid, hence he is not married husband of PW1 and the evidence of PW1 to 5 are 4 contradicting each other and the entire evidence given by PW1 before this court is totally improvement to that of her Ex.P1 contents and PW7 who is investigation officer also did not file any document whether PW1 took any divorce from her 1st husband. Merely, PW1 a Muslim women saying talaq to his 1st husband under Muslim Act, is valid under Muslim Act, is not proved by the prosecution. Hence the prosecution miserable failed to prove its case beyond all reasonable doubt. Hence the accused/A1 is entitle for acquittal.

12.At this stage it can be seen whether the evidence of PW1 to 7 coupled with Ex.P1 & P2 are sufficient for base conviction for the offence charged against the accused after scrutinizing their evidence with due care and caution.

13.It is the evidence of PW1 who deposed her evidence by reiterating the contents of

Ex.P1 and her 161 Cr.P.C. statement and during her cross-examination she admitted that her parents native place is Railwaykodur and they are residing at that place till today and she do not remember the door number of her parents house as Railwaykodur and her 1st marriage was taken place with her 1st husband with one Gouse Basha in the year 1995 at Railwaykodur as per their caste and custom and her 1st husband was residing at Srikalahasti and both herself and her 1st husband lived together one month, later she came to know that said Gouse Basha is suffering from mental imbalance he went away by leaving her and he did not turn up for one year and she took divorce from him in the presence of their mazed people and she did not file any divorce paper or certificate that she took divorce from her 1st husband, she further stated that she cannot say whether herself gave divorce or her 1st husband gave divorce to her and she further stated that she has mentioned in Ex.P1 that she requested the police to handover her child to her custody. She further stated that she do not know whether said Gouse Basha is still living at

Srikalahasti by running Auto. She further stated that she cannot say the distance between

Sulurpet to Tirupati and he never came to Tirupati alone in a bus from Sulurpet and her native place is Kodur still she is residing at Kodur. She further stated that the police handover her child to her from the custody of accused. She further admitted that she has not filed any document to show that her marriage was performed with accused and further admitted that she did not file any divorce papers issued by first husband at Maszid before the court and she is residing at Sulurpet and further admitted that Rukia Bee and Noorjan Bee are not having children and they including A1 looked after my daughter very affectionately in my absence. A specific suggestions are given to her by the defence cousnel that she never gave divorce to her 1st husband Gouse Bash and still she is leading life with him and that no marriage was taken in between her and A1 and that her parents did not pay Rs.75,000/- and also 20 sovereigns of gold to A1 and his mother and he did not took divorce from her first husband as per law and said divorce is in force, hence subsequent marriage with A1 is against law, hence the complaint is not maintainable, but witness denied the same.

5

14.I have gone through the Ex.P1 where the contents in brief that PW1 was already married to one S.Gouse Basha at Srikalahasti during the year 1995 as he was mentally retorted and he did not live with her even for one day, she gave talak in the mosque and married accused/A1 on 22.03.2002 at Kodur and they blessed with a daughter and the family members are not allowed PW1 to spend with her daughter and beat and driven out from their house and councelling was taken place at West police station, Tirupati and they promised that they will look after PW1 properly but again all of them started harassment her both physically and mentally and driven out her one and half month alone without hand over her daughter to her as such, she came to tirupati to her parents home after she knows that accused lodged complaint before Sulurpet police station against her for theft case, hence she request to do justice to handover her daughter to her.

15.Contra to it, PW1 gave her evidence before the court in 4 pages even though the contents of Ex.P1 is in one page. PW1 further clearly admitted in her cross-examination that she has mentioned Ex.P1 that she requested the police to hand over her child to her custody.

Moreover, the entire allegations in the Ex.P1 do not disclosed an offence punishable u/s.498-A

IPC and there is no document placed before the court that she was divorced wife of Gouse Basha, further under Muslim law, a woman can say talaq to husband, because it is not the case of prosecution that her 1st husband gave talak to PW1. PW1 himself admitted that herself and

Gouse Basha are lived together one month, whereas, in Ex.P1 she has mentioned after marriage herself and her 1st husband did not live even for one day which is too contradicting her own statements and evidence. It is duty cost upon the prosecution to prove the ingredients “Cruelty” u/Sec.498-A IPC against accused to the effect that the accused and family members harassed

PW1 not only demand for dowry and due to their harassment the PW1 likely to cause grave injury to health whether mental or physical or PW1 or the curelty was with a view to coercive

PW1 or any person related to her to meet any unlawful demand for additional dowry. In the instant case the total ingredients are silent in the evidene of PW1 and PW1 also never spoken such averments or allegations against not only the accused A1 but also his family members who were shown as A2 to A4 in the charge sheet. Ofcourse, the proceedings against them are quashed by Hon'ble High Court of A.P in Criminal Petition NO.9554/2010 dt.22.03.2013 as there are no grounds to charge them. But, PW1 never prefer any appeal on said order before the appelate court, hence the Hon'ble High Court passed orders are final.

16.It is settle law that mere beating could not attract u/s.498-A IPC only such harassment which is likely to be drive a woman to commit suicide or to cause grave injury mentally or physically would attract clause (a) of explanation to Section 498-A IPC.

17.In the instant case, no witness stated both PW1 and A1 lived together in Tirupati in 6 the house of PW3 or PW3 herself performed the marriage of PW1 with accused/A1. Because, no cause of action arose within the jurisdiction of West police station, having jurisdiction of this court. Because, the parents of PW1 is residing at Railwaykodur, Kadapa, since, her marriage taken place at Railwaykodur both lead their life at Sulurpet and there is no whisper of word from the entire evidence of PW1 to 3 that PW1 and A1 are residing anytime in the house of PW3 after the marriage subsequent marriage or any time during their marital life in the house of PW3.

Merely, PW3 is sister of PW2 residing in Gali Street, Tirupati and she brought up PW1 and studied up to 7th class, is not at all sufficient a ground that the West police station is having jurisdiction, having jurisdiction of this court. Unless, any cause of action arose within the jurisdiction of West police station this court not having any jurisdiction.

18.Evidently PW1 also never deposed said fact in her entire evidence, except a sentence deposed in her evidence in 4 th page of her deposition that herself with her parents came to Tirupati and showed injuries to SI of Police, West Poice Station and narrated and preferred report to West Police Station and went to house of her paternal aunt on knowing their presence in

Tirupati, the accused along with her in laws came to her paternal aunt house at Gali Veedi,

Tirupati and insisted her to give talak. So, her evidence itself goes to show that no demand or any sort of physical or mental harassment caused by accused or any demand for additional dowry. Where the evidence of PW1 is silent on this aspects how the West police came to conclusion to register this case, since they have no jurisdiction to entertain the complaint of PW1.

Atmost, they have right to receive the complaint and send same to Kodur PS or Sulurpet P.S.

where the marriage took place and where they are living together. Further the evidence of PW4 is totally different to that of evidence of PW1 to 3. So, her evidence itself shows that she is interested witness and she did not came to court with clean hands, because, during her cross- examination, PW4 stated that to her knowledge PW1 never married any man prior to marriage with accuse. So all the witnesses admitted that PW1 marriage was taken with one Gouse Basha and later she again married A1, so the total evidence of PW4 of this single incident is sufficient to discard her testimony, because PW4 is negihbour house of PW3, but PW4 never stated the version of PW3 in her evidence or also PW4 never stated that PW3 brought up PW1 from her childhood and educated her and also at least she never deposed after marriage both accused and

PW1 visited the house of Pw3 are stayed in their house. Hence the testimony of PW1 to 3 cannot be taken into consideration.

19.As seen from the evidence of PW5, his evidence is different to that of evidence of

PW1 and 2. When both PW1 and 2 did not state in their evidence that A1 demanded to bring

additional dowry from the parents of PW1, but PW5 at first time deposed that A1 demanded PW1

to bring additional amount from her parents because the father of PW1 came from Kuwait.

7

Because, he is relative of PW1. Hence his evidence cannot be relied on, because his evidence is untrustworthy.

20.It is the evidence of PW6, who deposed that he received Ex.P1 from PW1 and registered the case issued Ex.P2 FIR later as per the instructions of Sub-Divisional Police Officer,

Tirupati he transferred the case records to PW7 for further investigation. During his cross- examination he admitted that he did not conduct preliminary enquiry that whether PW1 is married wife of A1 or not and whether PW1 already married husband previously or not and further admitted that Ex.P1 does not disclose that A1 harassed PW1 to bring additional dowry or he beat PW1. So, from his evidence, it made clear that A1 never harassed PW1 not only to bring

additional dowry or any sort of harassment both physically and mental. When such is happened,

how PW6 registered the case even though the contents of Ex.P1 does not touch the ingredients of 498-A IPC.

21.It is the evidence of PW7 who is investigation officer she deposed her evidence by reiterating the contents of her investigation and during her cross-examination she stated that

before registered the case, she never called both accused and defacto complainant for counseling,

he further admitted that Ex.P1 does not disclose that A1 harassed PW1 for dowry or for

additional dowry and also further admitted that PW1 stated before her in her 161 Cr.P.C.

statement that PW1 married one Gouse Basha and further stated that they took divorce and PW1 also further stated that they took divorce by way of talak, but documents is not available in her

CD. Some suggestions are given to her by the defence counsel to the effect that A1 is not the husband of PW1 and the marriage of PW1 with her 1st husband by name Gouse Basha is not substituted and till they are wife and husband and they never taken divorce by way of talak as per Muslim community and this offence is not attracted against accused/A1, but witness denied the same.

22.As can be seen from the evidence of both PW6 and 7, who clearly admitted in their respective cross-examinations that Ex.P1 does not disclose A1 harassed PW1 to bring additional dowry or beat PW1. When that is being so, how PW6 registered the case and how PW7 file charge sheet against accused. When the ingredients of Section 498-A is silent in Ex.P1 and what is the nature of harassment and beating are not stated and all the harassment and beating would not attract offence u/Sec.498-A IPC. Only such harassment which is likely to drive a woman to commit suicide or to cause grave injury mental or physical would attract (a) of explanation to

Section 498-A IPC. Further, no documents pertaining to divorce between PW1 and her 1st husband is not placed before the court to believe that she is divorced wife, unless it is established by the prosecution, PW1 married A1 does not arise, when it is not happened, the question of harassing the PW1 by accused u/s.498-A IPC, not attracted against accused. Further, there is no 8 explanation from both PW6 and 7 how the West police station having such jurisdiction when no marriage was taken place, no alleged harassment are taken place and both PW1 and A1 never resided within jurisdiction of West Police Station and the same is not proved by the prosecution.

23.In view of the facts and circumstances, in view of the material available on record,

I am of the considered opinion that there is no cogent and convincing evidence available from the prosecution to prove the case of the prosecution against the accused/A1 beyond all reasonable doubts. Hence the accused is entitled for acquittal.

24.In the result, the accused/A1 is found not guilt for the offence u/s.498-A IPC. Hence, he is acquitted u/sec.248 (1) Cr.P.C. His bail bonds if any shall stand cancelled, after expiry of appeal time.

Typed to dictation by Personal Assistant, corrected and pronounced by me in the open court, this the 15th day of May, 2014.

Sd/-P.Srinivas

III Addl.Judl.Magistrate of I Class, Tirupati

Appendix of Evidence

Witnesses examined

For Prosecution For Accused

PW1 : S.Haseena -Nil- PW2 : Shack Saleem PW3 : Shaik Jaibunbee PW4 : Shaik Parijan PW5 : Shaik Khadar Valli PW6 : G.Srinivasulu PW7 : A.Padmalatha

EXHIBITS MARKED ON BEHALF OF

Prosecution

Ex.P1: Report of Pw1 Ex.P2: First Information Report in Cr.No.80/2005 of West P.S.

Accused:

-Nil-

Material Objects:

-Nil-

Sd/-P. Srinivas

//true copy//III AJCJ Tirupati

III Addl.Judl. Magistrate of First Class, Tirupati.

9

IN THE COURT OF THE III ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS, T

I R U P A T I

CALENDER CASE NO.369 of 2012

Hon'ble High Court passed orders in Criminal Petition No.9554/2010 dt.22.03.2013 and

quashed the proceedings against A2 to A4 only.

Date of offence:16/12/02

Date of complaint:18/07/05

Date of taken on file:01/04/06

Date of apprehension of accused:02/08/05 A-1 to A-3 29/09/05 A-4

Date of commencement of trial:17/07/13

Date of close of trial:14/05/15

Date of sentence of order:15/05/15

Complainant:Sub Inspector of Police, West Police Station, Tirupati in Cr.No.80/2005

Name of the accusedFather's NameAge in years

1. T. Zamshaeed BashaT.Lalu Saheb32

2. T.RukhiyabeeD/o T.Abdul Salam Saheb65

3. S. Noorjahan BheeW/o Mahammad Safiulla Basha40

4. Mahammad Sajiulla BashaNoorulla Basha42

VillageMandalReligionCalling

All are residing at D.No.10-30, Sullurpet, Nellore Dist., and also at Hindus Bhapujee Street Chellakur (M) Near Post Office Building, Nellore District.

Nature of offenceu/Sec. 498-A IPC

Finding of the courtAccused A1 is found not guilty

Sentence of Order In the result, the accused/A1 is found not guilt for the offence u/s.498-A IPC. Hence, he is acquitted u/sec.248 (1) Cr.P.C. His bail bonds if any shall stand cancelled, after expiry of appeal time.

III ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS,

TIRUPATI.

To, The Hon'ble I Addl. District Judge, Chittoor.

Dis.No................./2015.

10 ,

1

IN THE COURT OF THE III ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS::

TIRUPATI

Present :: Sri P.Srinivas, III Additional Judicial Magistrate of First Class, Tirupati

Tuesday, the twelveth (12th) day of May, two thousand fifteen

C.C.No.157 of 2013

S.Muralidhar, aged 59 years, S/o late S.Venkobrao, retired Employee Residing at Yogimallavaram, Thiruchanur Road, Tirupathi

...Complainant

-Versus-

S.Manjunath, aged 30 years, S/o S.Nanjundappa, Business, Residing at Digavapeta, Ramasamudram, Ramasamudram. Rev. Mandalam.

....Accused

This case is coming on 7-05-2015 before me for final hearing in the presence of Sri S. Vijaya Kumar, Advocate for the complainant and of Sri V. Lakshmanna and Smt.S.Kasthuri, Advocate for the accused and upon hearing their arguments and upon perusing the documents available on record and having stood over for consideration till this day, the court delivered the following:

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

1.This is a complaint filed against the accused for the offence punishable under section 138 r/w 142 of the Negotiable Instruments Act, 1881.

2. The brief facts of the complaint are as follows: that the accused borrowed an amount of Rs.2,00,000/- from the complainant only for his business on 09.11.2012 The complainant has informed to the accused that he has kept the same for performing the marriage expenses of his son. The accused has informed to the complainant that he is borrowing the amount for the time being adjustment for his business and the same will be return within a month. The accused has also promised that he will pay the interest at the rate of 24% per annum. The complainant on 09.11.2012 has lend the amount which was kept for the marriage expenses and the accused acknowledging the same issued a cheque bearing NO.092865 drawn on ING Vysya Bank Limited Ramasamudram pertaining to his account NO.394011002354. It is humbly submitted that the accused has not returned the amount of Rs.2,00,000/- received by 2 him from the complainant within one month as he promised by him. The marriage of the complainant's son fixed to perform on 16-12-2012and the complainant has requested the accused to pay the amount due by him basing on the cheque. The accused has informed to the complainant that he will keep the amount in his account in the last week of December and to present the same. The complainant accordingly he has presented the cheque on 24.12.2012 in his account and the same has sent to ING Vysya Bank, Ramasamudram. The same was dishonoured with an endorsement the “Funds Insufficient” in his account. The cheque returned on 26.12.2012 and the complainant has informed the same to the accused and requested to arrange the amount. The accused has not given proper response. Hence the complainant has issued a legal notice on 05.01.2013 informing that the cheue issued by him bearing NO.092865 drawn On ING Vysya Bank Limited, Ramasamudram Branch pertaining to his account NO.C.A.A/c 394011002354 and requested to pay the amount within 15 days from the date of receipt of notice. The accused has not received the legal notice addressed t him and it was returned with an endorsement “refused”. The accused has knowledge about the dishonour of the cheque and issuance of notice by the complqainant. But the accused neither paid the cheque amount nor relied for the notice. The accused has issued the cheue knowing that there are no funds in his account. It is further submit that the issuance of the cheque by the accused without funds in his account is liable to punish under 138-A of NI Act.

3. The case was taken on file against the accused for the offence punishable under

Sec.138 r/w 142 of the Negotiable Instruments Act. On appearance of the accused the copies of documents are furnished to the accused U/s.207 Cr.P.C and examined the accused U/s.251

Cr.P.C., the accused denied the offence and pleaded not guilty and claimed to be tried.

4.During the course of trial on behalf of the complainant, the complainant himself is examined as PW.1 and S.Yeswanth examined as PW2 and got marked Exs.P.1 to P.5.

5.After closure of the evidence on behalf of the complainant, the accused was examined U/s.313 Cr.P.C explaining the incriminating evidence appearing against him in the evidence of PW.1 , he denied the same.

6.The counsel for complainant submitted his memorandum of written arguments and counsel for accused submitted his arguments.

7.The following points are determined for consideration:

3

(i)Whether the complaint was filed by complainant in due procedure as contemplated U/s.138 of Negotiable Instruments Act ?

(ii)Whether the Ex.P.1 cheque in question comes under cheque bounce case under NI Act since it is self cheque or bearer of the cheque ?

(iii) Whether Ex.P4 statutory legal notice served on the accused with correct address and the complaint maintainable basing on it or not?

(iv)whether the complainant is able to prove its case beyond all reasonable doubt against accused to make out her case for the offence u/s138 r/w 142 of Negotiable Instrument Act?

8.Points 1 to 4 are clubbed together and discussed for the sake of convenience.

9.It is the evidence of PW.1, who is the complainant herein, and filed his affidavit for examination in chief u/s.145 of NI Act by reiterating the contents of the complaint and

Ex.P1 to P5 marked and during his cross examination, he stated that the accused is son of elder brother of his brother in law and his brother in law is having 7 brothers and he given his sister to 4th brother of his brother in law, he further stated that except he took cheuqe from the accused he did not obtain any promissory note or acknowledgement. He further admitted that he himself written his name in the cheque after noted “self” at the place of pay in

Ex.P1 and further admitted that he has mentioned the date as 09.11.2012 in Ex.P1 with

his handwriting and the name written in Ex.P1 with blue ink and the amount of

Rs.2,00,000/- and signature is with black ink. He further admitted that he filed civil suit

before civil court pungunur for pertaining to the cheque amount and Ex.P1. He further

stated his brother in law by name Vijaya Kumar is residing at Ramasamudram. He further stated that he has no idea whether his advocate has mentioned in the complaint or legal notice or in his chief affidavit that he gave amount to accused in the presence of Yeswanth and he approached the accused personally on the specific date. He further stated that Ex.P1 cheque, it is mentioned at the place of “pay” as “self” (S.Muralidhar) or barer and further admitted that he is employee Tirupati Co-operative bank and he present Ex.P1 cheque for collection in said Co-operative Bank, Tirupati where he is working. A specific suggestions put to PW1 in his cross-examination to the effect that his brother in law Vijaya

Kumar even though the cheque is not valid got it returned by influenced bank authorities funds insufficient and the accused himself written in Ex.P1 on his self and the same is kept in the house and himself committed of Ex.P1 from the house of accused along with his sister and his brother in law and the same is filed before this court against the accused due to disputes between accused and Vijaya Kumar and accused never borrowed any amount from him and 4 also never issued Ex.P1 to him for discharge of his legal enforceable debt and that this offence is not come under purview of Negotiable Instrument Act, but the witness denied the same.

10.PW2 S.Yeswanth who filed his affidavit for examination in chief and during his cross-examination he stated that the complainant is maternal uncle the accused is his cousin and his father and his brothers are 7 in number and the properties situated at Ramasamudram still in their joint possession. He further stated that he has not mentioned in his chief affidavit that in his presence the complainant gave Rs.1000/- currency note in two bundles and further stated that the accused did not issue any acknowledgement or executed any promissory note at the time he borrowed Rs.2,00,000/- from the complainant and the accused himself filled cheque in his presence, he further admitted that at the place of “pay”, it is written as “self” and the name of accused i.e., S.Muralidar written in blue ink so also the date and remaining filled with black ink including signature of accused and the signature of the accused not on back side of the Ex.P1 cheque. A suggestion is given to him by the defence counsel that no money transaction in between accused and complainant in his presence and himself complainant nd his mother and father committed theft of self cheque of accused and the same is filed before the court as if the accused borrowed amount from the complainant and the same is created and foisted a false case against accused after collusion as the parents of accused did not agree for partition of the landed property situated at Ramasamudram Village, but witness denied the same.

11.Admittedly, the counsel for complainant is junior paternal uncle of the accused and the complainant is brother in law of the junior paternal uncle of accused and PW2 is son of complainant's counsel and also there are civil disputes pending before Hon'ble II Addtional

District Judge, Madanapalli.

12.It is a matter of fact that the complainant also filed civil suit vide

O.S.No.117/2012 against the accused on the file of Senior Civil Judge, Punganur for

realization of the amount under alleged cheque.

13.Evidently, there is no proof regarding means of complainant, sources of lending such huge amount available with him without even taking any receipt or letter or undertaking or promissory note.

14.I have gone through the evidence, it is the evidence of PW1 that accused has also 5 promissed that he will pay the interes at the rate of 24% per annum. But there is no evidence or explanation whether the accused paid any interest till the cheque was sent to bank for collection or not. No doubt, the accused is relative, but the complainant did not obtain any receipt or acknowledgement from the accused about receiving of such huge amount from him.

15.It is the main contention of the accused that there are relationship and due to partition of properties and Ex.P1 is self cheque of the accused and the same is committed theft by PW1 along with his sister in law in the house of the accused, due to disputes between accused and S.Vijaya Kumar (counsel for complainant) and accused never borrowed any amount from the complainant and he never issued Ex.P1 to the complainant for discharging of his legal enforceable debt and this offence is not come under purview of NI Act.

16.In order to discharge of the same, the initial burden is always on the complainant and after he prove the same then the burden shifted to accused under N I Act. In the present case in hand, the complainant has proved his case that he has such capacity to give huge amount to the accused.

17.It is the evidence of PW1 that the marriage of son of PW1 was fixed on 16.12.2012 and the complainant retired from his services in the year 2012 and received the retirement benefits from the department, but the complainant if really got such amount from his retirement benefits, nothing is prevented to him to file said documents or bank account or at least file the marriage card of PW1 son about fixing marriage on 16.12.2012 and he gave said amount to the accused. There is no single document placed by the complainant before the court to believe that he gave such huge amount to accused without taking anything from the accused. So, there is no evidence from the complainant to that effect.

18. As can be seen from the legal notice, contents of the complaint, sworn statement of the complainant and also chief affidavit of complainant as PW1, no where PW1 mentioned that in the presence of PW2 he gave such huge amount to accused, but at first time during his cross-examination, PW1 stated that in the presence of PW2 at his house, he gave Rs.2,00,000/- to accused on 09.11.2012, except he took cheque from the accused, he did not obtain any promissory note or acknowledgement. No doubt, the PW2 who is son of the counsel for complainant and said counsel is junior paternal uncle of the accused and the complainant is brother in law of the counsel for complainant by name S.Vijaya Kumar. Further, said Vijaya

Kumar along with 4 others, filed O.S.No.11/2013 on the file of Hon'ble II Additional District 6

Judge, Madanapalli against accused and 10 others for partition of the schedule property

mentioned therein and the counsel for complainant herein by name S.Vijaya Kumar filed his affidavit in I.A.74/2013 in O.S.11/2013 on the same court for appointment of advocate- commissioner.

19.So, from the record, there are civil disputes between accused family and family members of the counsel for complainant including the complainant who is none other than brother in law of the counsel by name S.Vijaya Kumar. Further, the contents of chief affidavit of PW2 i.e., paras 1 to 4 are totally omissions and contradicting and said contents never spoken by complainant/PW1 in his evidence or mentioned the same in his legal notice or sworn statemnt as discussed the point as earlier. So, merely PW2 was introduced by the PW1 in this case as witness with new evidence, such type of evidence cannot be looked into, it is only afterthought.

20.So far as the contention of the accused pertaining to the Ex.P1 that it is self cheque of accused and he never issued the same to the complainant for legal enforceable debt, hence the complaint is not maintainable under Section 138 of N.I Act.

21.I have gone through Ex.P1, admittedly, it is self cheque of bank of accused and all the handwriting in it belongs to accused in black ink and the name after “self” the name of

S.Murilidar inserted with blue ink. PW1 also admitted in his cross-examination that Ex.P1 cheque, it is mentioned at the place of pay as “self” (S.Muralidhar) or barrer. PW2 also admitted that the accused himself filled the cheque and the name of the complainant i.e.,

S.Muralidhar written in blue ink so also the date and remaining filled with black ink including signature of accused and he further admitted that at the place of pay, it is written as “self”. So, on face of Ex.P1, and on admissions of both PW1 and 2, it made clear that Ex.P1 is a self cheque of accused. The name of the complainant shown after “self” as S.Muralidhar with blue ink. When it is “self” cheque of accused, how the name of complainant as Murlidhar is inserted after the place of “self” is to be proved by the complainant, because, it is not dispute that the accused himself written or inserted the name of S.Muralidhar after the place of “Self”.

22.It is relevant time to extract Section 87 of N.I Act as under

Effect of material alteration : Any material alteration of Negotiable Instrument renders the same void as againt anyone who is a party they too at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common 7 intention of the original parties. Alteration of indorsee, and any such alteration, it made by indorse, discharges his indorser from all liability to him in resepct of the consideration thereof.

23.At this stage it is relvent to define section 6 of Negotiable Instrument Act as under.

“A 'cheque' is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise on demand”.

24.So from the evidence of record coupled with the admissions, and on face of the

Ex.P1, it is very clear that Ex.P1 cheque is “self” cheque of accused and the same is not issued by accused to complainant for any legal enforceable debt by inserting the name as

S.Muralidhar after the place of pay “self” and once it is self cheque of accused, the cheque in question will not come under purview of N.I Act, hence the question of statutory legal notice got issued or refused and the accused failed to repay the same does not arise at all since, the complainant is not maintainable under Negotiable Instrument Act.

25.As can be seen from the document i.e., written statement i.e., Ex.P5, filed by accused in O.S.No.117/2012 on the file of Senior Civil Judge, Punganur, the accused also taken said plea at the earliest point of time that Ex.P1 is “self” cheque of him. Further, it is not necessary to discuss about issuance of legal notice to correct address of accused or not because already it is decided that complaint is not maintainable under N.I Act sicne, Ex.P1 cheque is self cheque of the accused, so question of issuance of statutory legal notice does not arise at all. Further, during cross-examination of PW1, a suggestion also given to him by the defence cousnel that his brother in law Vijaya Kumar managed registered post for servicing of notice by managing postal department and got it returned as refused, ofcourse, the witness denied the same, but PW1 admitted that his brother in law Vijaya Kumar is residing at

Ramasamudram and he is advocate for complainant in this case. But, the complainant did not take any steps to examine any postal department to disprove the contention of the accused and to prove his contention that the legal notice was refused by accused.

26.It is settle law that any advance taken by way of any loan of more than

Rs.20,000/- was to be made by way of an account payee cheque only. An accused for discharging the burden of proof placed upon him under a statute need not examine himself.

He may discharge his burden on the basis of the material alredy brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different.

8

27.I would like to extract the ingrendients of 138 of Negotiable Instruments Act and 3 conditions, which have to be fulfilled by the person, for better appreciation “(a) the cheque to be presented to the bank within a period of six months from the date of which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque, within 15 days of the receipt of the 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 to the holder in due course of the cheque within fifteen days of the receipt of the said notice”.

Under section 139 of Negotiable Instruments Act.

“Presumption in drawer 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”.

28.The offences under Negotiotial Instruments Act are technical offences and the parties are follow the procedure laid down under the N.I. Act.

29.The counsel for complainant relied upon a decision reported in Sri Desh Deepak

Vs. State and another reported in

1) Crl.M.C.No.21025 in the High Court of Delhi at New Delhi

2) V. Venkatesh Vs. Shivalingaiah in CRL.R.P.NO.684/2011 in the HIgh Court of Karnataka, Bangalore.

3) G.Someswar Rao Vs. Samineni Nageswar Rao and another in

Crl.A.No.1353/2009 in the Supreme Court of India

30.I have gone through the above said decisions with due respect the proposition of law is not applicable in the present case in hand. Since, the facts are not one and the same.

31.Hence the points No.1 to 4 are answered accordingly.

9

32.On a consideration of the facts and circumstances of this case. The complainant primafacie has not proved the cheque in question issued by accused for legal enforceable debt or liability and the same is not proved by the complainant both oral and documentary evidence. Therefore, I am of the considered opinion that the complainant failed to prove its case beyond all reasonable doubt for the offence punishable u/s.138 r/w 142 N.I. Act. Hence the accused is entitled for acquittal.

33. In the result, the accused is found not guilty for the offence punishable U/s.138 r/w.142 of the Negotiable Instruments Act and accordingly he isacquittal U/s.255 (1) Cr.P.C.

Typed to dictation by Personal Assistant, corrected and pronounced by me in the open court, this the 12th day of May, 2015.

Sd/-P.Srinivas

III Addl.Judl. Magistrate of First Class, Tirupati .

Appendix of evidence Witnesses examined.

For Complainant :- For Defence :-

PW.1 S. Muralidhar -None-

PW.2 S. Yeswanth

Exhibits marked.

For Complainant :-

Ex.P.1 Dt.09.11.2012 Cheque for Rs.2,00,0000/-

Ex.P.2 Dt.26.12.2012: Return Memo

Ex.P.3 Dt.05.01.2013: Office copy of legal notice

Ex.P.4 Dt.12.01.2013: Return Postal Cover.

Ex.P.5 Certified coy of written statement filed by the accused in O.S.NO.117/13 on the file of Hon'ble Senior Civil Judge, Pungunur.

For Accused :- -Nil-

Material objects : Nil.

Sd/-P.Srinivas

III AJMFC

Tirupati //true copy//

III Addl.Judl. Magistrate of First Class, Tirupati .

10

IN THE COURT OF THE III ADDITIONAL JUDICIAL MAGISTRATE OF FIRST

CLASS, T I R U P A T I

CALENDER CASE NO.157 of 2013

Date of offence:09/11/12

Date of complaint:08/02/13

Date of taken on file:01/05/13

Date of apprehension of accused :06/09/13

Date of commencement of trial:22/10/13

Date of close of trial:07/05/15

Date of sentence of order:12/05/15

Complainant:S.Muralidhar, aged 59 years, S/o late S.Venkobrao, retired Employee Residing at Yogimallavaram, Thiruchanur Road, Tirupathi

Name of the accusedFather's NameAge in years

S.ManjunathS.Nanjundappa30

VillageMandalReligion Calling

Business,Residing Ramasamudram. Rev. Mandalam. Hindu at Digavapeta, Ramasamudram

Nature of offence u/Sec.138 r/w.142 of the Negotiable Instruments Act

Finding of the Accused is found not guilty court

Sentence of Order In the result, the accused is found not guilty for the offence punishable

U/s.138 r/w.142 of the Negotiable Instruments Act and accordingly he isacquittal

U/s.255 (1) Cr.P.C.

III ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS,

TIRUPATI.

To, The Hon'ble I Addl. District Judge, Chittoor.

Dis.No................./2015.

1

IN THE COURT OF THE III ADDITIONAL JUDICIAL MAGISTRATE OF FIRST

CLASS:: TIRUPATI

Present :: Sri P.Srinivas, III Additional Judicial Magistrate of First Class, Tirupati

Wednesday, the thirteenth (13th) day of May, two thousand fifteen

C.C.No.38 of 2013

The State of Andhra Pradesh, rep., by its, the Sub Inspector of Police, West Police Station. Tirupati (Cr.No.234/2012 of West Police Station)

...Complainant

-Versus-

A.Yeswanth, age 21 yrs, S/o Bramahaiah, D.No.2-174/B1, Giripuram, Tirupati, working at Sai Sneha wine shop, S.D. Road, Tirupati. Caste by Achary.

....Accused

This case is coming on 12-05-2015 before me for final hearing in the presence of the learned Assistant Public prosecutor for State and of Sri B. Murali Mohan and Sri A. Arumugam, Advocates for the accused and upon hearing their arguments and upon perusing the documents available on record and having stood over for consideration till this day, the court delivered the following:

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

1.The Sub Inspector of police West Police Station, filed charge sheet against the accused for the offence punishable u/s.34 (a) of A.P. Excise Act.

2.The brief facts of the case of the prosecution that : On 30.12.2012 at 9:15 am.,

Opposit Komalama Satram SD Road, Tirupati wherein accused woking at Sai Sneha Wine

Shop, SD road, Tirupati have possession of the following liquor bottles and selling liquors to the public without any license. The accused was arrested by LW6 and seized 1) Royal touch whiskey 180 ml bottles -19 each bottle Rs.50/-, 2) Honey bee brandy 180 ml bottles-20 each bottles Rs.70/-, 3) Mc Dowell Rum 180 ml bottles 10 each bottles RS.70/-, 4) bag bipper whiskey 180 ml bottles -3 each bottles Rs.70/-, 5) Mc Dowell whiskey 180 ml bottles 3 each bottles Rs.110/- and 90 ml bottles -3 each bottles Rs.60, 6) Mc Dowell VSOP Brandy 180 ml bottles -2 each bottles Rs.110 and 90 ml bottles -2 each bottles Rs.60/-, 7) Hayward Whiskey 180 ml bottles -3 each bottles Rs.70/-, 8) Old Tavern 180 ml bottles – 3 each bottles Rs.70/-, 2

9) Mc Dowell brandy 180 ml bottles -5 each bottles Rs.95/- and 90 ml bottles -17 each bottles

Rs50/-, 10) Mansion House brandy 180 ml bottles -5, each bottles Rs.105 and 90 ml, bottles -5 each bottles Rs.60/-, 11) Officers choice whiskey 90 ml bottles -5 each bottles Rs.40/- total bottles 105, value of Rs.6,880/- and separated 15 sample bottles i.e., each group one bottle for the purpose of chemical analysis under a cover of police proceedings. Basing on the police proceedings, a case in Cr.No.234/2012 u/Sec.34 (a) of A.P. Excise Act registered and investigated into. During the course of investigation, Lws1 to 3 were examined by LW6 and recorded their statements. He visited the scene of offence and prepared rough sketch of the scene of offence. On 30-12-2012 accused was arrested by LW6 and sent accused to this court for remand. LW6 prepared a letter of advise and forwarded the material objects (sample brandy bottle with liquor) to the Government Regional Prohibition and Excise Laboratory,

Chittoor for analysis. LW5 Chemical Examiner for Prohibition and Excise Laboratory,

Chittoor issued analysis report opining that the liquors are Indian made liquor and it is fit for

Human consumption and after completion of investigation LW6 laid charge sheet for the offence punishale u/Sec.34 (a) of A.P. Excise Act

3.The case was taken on file against the accused for the offence punishable u/s.34 (a) of A.P. Excise Act

4.On appearance of the accused, the copies of case documents were furnishd to him u/s.207 Cr.P.C. and he was examined u/s.239 Cr.P.C. in which the accused denied the offence punishable u/s.34 (a) of A.P. Excise Act and pleaded not guilty and claimed to be tried.

5.During the course of trial, on behalf of the prosecution, PWs-1 to 4 examined, and got marked Ex.P-1 to P.4, M.O.1 to 12 on behalf of the prosecution.

6.After closure of prosecution evidence, the accused is examined u/s.313 Cr.P.C.

with regard to incriminating material found in the evidence of prosecution witnesses, the accused denied the same and reported no defence evidence on his behalf.

7.Heard both sides.

8.Now the point for determination is

Whether the prosecution is able to prove its case beyond all reasonable doubt for the offence charged u/s.34 (a) of A.P. Excise Act against the accused?

9.The learned Assistant Public Prosecutor submitted her arguments stating that

PW1 and PW2 who are working in Municipal Corporation, Tirupati they themselves 3 proceeded to ST Nagar in general Inspection and moving in the town along with LW1

Municipal Commissioner and found the accused selling liquor bottles without having any license and then SI of police i.e., PW4 arrested the accused and seized M.O.1 to 12 under cover of Ex.P1 police proceedings and he brought the accused to police station and basing on

Ex.P1, he issued Ex.P2 FIR and PW4 also took 5 bottles of 5 brands for sample and the same were sent along with Ex.P3 letter of advise for analysis and PW4 sent the accused to court for judicial remand after receipt of Ex.P4 anlyst report he laid charge sheet, all the witnesses categorically deposed abot selling of liquor bottles by accused without having any lincense.

Hence the prosecution proved its case beyond all reasonble doubts, hence, the accused is liable to be convicted.

10.On the other hand, the defence cousnel submitted his arguments stating that the evidence of PW1 and 2 are different on face of their evidence and PW1 stated that they produced accused before west police station wheras PW2 stated that police were present at the shop of accused and they prepared police proceedings at that place and accused was taken to police station and PW3 evidence is another way to that of evidence of PW1 and 2 that he along with SI of police and staff proceeded to the shop of accused at that time LW1, PW1 and 2 came to said place and enquired PW4 what happened at that place then PW4 informed that accused selling liquor bottles without haivng any license and whereas PW4 evidence is different to that evidence of PW1 to 3 that himself PW1 to 3 and LW1 proceeded to SD Road and found accused present at that place with two boxes. He further argued that PW4 is investigation officer who registered crime cannot proceed with investigation since he detect the offence and prepared police proceedings registered the case filing charge sheet such investigation illegal decided by Hon'ble Hih Court of A.P in 2003 CRI L.J 3584 and

Chhattishgarah HIgh Court in 2014 CRI L.J 4683 and there are no corroborative evidence in between PWs.1 to 4 and no panchanama is prepared even though PW1 and 2 were present at the time of alleged detention of accused by PW4 and no explanation given by PW4 before the court in his evidence. Hence the prosecution miserably faield to prove its case beyond all reasonble doubts, hence the accused is entiled for acquittal.

11.At this stage, the evidence of PWs.1 to 4 and Exs.P1 to P4 and MOs.1 to 12 are sufficient for base conviction for the offence charged against accused after scritinizing their evidence with due care and caution.

12.As per the evidence of PW1 on record, he stated that himself along with LW1 and LW3 moving in the town for general insepection and reached SD road at 9:00 am., and they found the accused was present infront of one Sai Sneha wine shop by keeping liquor bottles in corton box by selling the same and on demand the accused fail to produce any 4 license they found 73 bottles of various liquor in said carton box and selling the same without having any licnese and they produced the accused before West Police Station along with 73 bottles of 180ml each and hand over the same to police for further action.

13.As far as the evidence of PW2 is concerned himself and PW1 followed LW1and they reached Sneha wine shop situated Sarojinidevi road, by the time the West police were present at that shop and they went there and found the accused and police with liquor bottles and the accused selling those liquor bottles to public without having any license and foun there were 73 liquor bottles in different varieties and also disposable glasses and the police took the accused and liquro bottles to police station after preparing police proceeding at that place.

14.As can be seen from the evidnece of PW1 and 2, their evidnce totally contradicting each other because PW1 never deposed the presence of accused at said Sai

Wine Shop with accused, but they found the accused with liquor bottles without having any license and they themselves produced the accused before West police station by handing over 73 liquor bottles, but PW1 never deposed they found disposable glasses and the police prepared any police proceedings after seized the liquor bottles. Further PW2 in his cross examination himself admitted that they did not give any report to police at the place of wine shop and did not put their signatures in the seizure proceedings.

15.It is the evidence of PW3 who is Head Constable, deposed that he along with two other constable followed SI of police on 30.12.2012 at 9:15 am., and proceeded infront of Sai Wine Shop situated at SD road, Tirupati and found accused was sitting by keeping two cartoon box in front of him. At that time LW1, PW1 and 2 came to said place and enquired

LW6 what happened at that place in turn, LW6 informed that accused selling liquor without having any license. Then SI of Police arrested the accused and seized 73 varieties of liquor bottles of 180 ml each under cover of police proceedings then they took the accused along with property to police station. During his cross examination he admitted that he is the scribe of police proceedings to the dictation of SI of Police and PW1, 2 LW1 did not put their signatures in said police proceedings, except himself and SI of police signed in said police proceedings, but no other persons signed on it and there are house nearly 100 yards from the wine shop. So the evidence of PW3 is totally different to that of evidence of PW1 and 2, which is not corroborated each other.

16.It is the evidence of PW4 who is investigation officer, he deposed his evidence by reitarating the contents of Ex.P1 police proceedings and his investigation and Ex.P2 to P4 and M.O.1 to 12 are marked through him during his cross examiation he admitted that LW1 5 never gave any special report to him at the time of preparing Ex.P1 police proceedings PW1, 2 and LW1 were present, except that persons, no other persons were present at the time of preparing Ex.P1 police proceedings, he further stated that PW1, 2 and LW1 did not sign on

Ex.P1 police proceedings. He further admitted that he is the complainant, investigation officer and he filed chare sheet.

17.I have gone through the Ex.P1 police proceedings, it is depicting that PW1 and 2, Lw1 along with staff proceeded to said place after receipt of information by PW4 and found the accused with above said contraband and he took some bottles as it is for samples.

When the independent persons i.e., PW1, 2 and LW1 were really present at the time of arrest and seizure of property, on what ground PW4 prepared police proceedings without preparing of mahazarnama by taking signatures of PW1, 2 and LW1 , even though they are much available at that place. Non preparing mahazarnama though the property seized after arrest of the accused in the presence of them is best known to PW4, it is fatal to the case of prosecution, further when it is a residential locality and there are number of houses at a distance of 100 yards from the said wine shop, on what reason PW4 did not secure any independent persons from that locality. There is no explanation from the prosecution to that effect. Furthermore, the evidence of PW4 not corroborated to the evidence of PW1 and 2 whose evidence is different to that of evidence of not only evidence of PW4 but also the contents of Ex.P1 police proceedings. Further, PW1 stated that they caught the accused and produced West police station, whereas PW4 stated that he along with PW1 and 2, LW1 proceeded to the scene of offence and caught the accsed. So, the evidence of PW1 to 4 are too contradicting each other.

18.Furthermore, admittedly, PW4 is the complainant and Invstigation Officer and filing of charge sheet in this case. Morover, all the bottles not sent to Analyst to know whether the seized bottles all are liquor bottles or not, so it creates a doubt in the mind of the court whether the remaining bottles are liquorr bottles or not?

19.Whenever, the Investigation Officer left the Polcie Station, another police officer was placed as SHO and whenever he detected any offence, he has to hand over the case record to SHO to take further action, furthermore, the S.H.O West Police Station the rank of Inspector of Police, but PW4 never hand over the case record to Station House Officer who is inspector of police to conduct further investigation after detecting the offence by himself.

But, in the isntant case, PW4 is the complainant and investigation officer and he also filed charge sheet, it is settled law that the Investigation Officer who is complainant and

Investigation Officer and filing of charge sheet, his evidence cannot be taken into consdieration.

6

20.The learned counsel for accused relied upon decision reported in

1) Gurujala Ramesh and others Vs. State of AP in 2003 Cri. L.J. 3584.

2) Roop Lal Helba Vs. State of Chattisgarh reported in 2014 Cri.L.J. 4683

21.I have gone through the above said decisions with due respect. The proposition of law in said decisions amptly applicable to present case in hand since the facts are one and the same.

22.In view of the facts and circumstances and in view of the material available on record, I am of the considered opinion that the prosecution miserably failed to prove its case beyond all reasonable doubts, hence the accused is entitled for acquittal.

23.In the result, the accusd is found not guilty for the offence u/sec.34 (a) of AP

Excise Act, he is acuitted u/sec.248(1) Cr.P.C. the accused is in jail and he shall be released forthwith if he is not required in any other case. MOs.1 to 12 are odered to be destroyed after expiry of appeal time.

Typed to dictation by Personal Assistant, corrected and pronounced by me in the open court this the 13th day of May, 2015.

Sd/-P.Srinivas

III Addl.Judl.Magistrate of I Class, Tirupati

Appendix of Evidence

Witnesses examined

For Prosecution For Accused

PW1 : D.Sridhar -Nil- PW2 : P.Shanumugam PW3 : M. Doraswamy PW4 : T. Muni Krishna

EXHIBITS MARKED ON BEHALF OF

Prosecution

Ex.P1: Police proceedings Ex.P2: First Information Report in Cr.No.234/2012 of West P.S. Ex.P3: Letter of advise Ex.P4: Two analyst reports

Accused:

-Nil-

Material Objects:

MO.1 : Royal touch wiskey of 180 m.l., each in 18 in number MO.2 : Honneybee Brandee of 180 m.l. bottles 19 in number MO.3 : Mc.Dowl Rum of 180 m.l. bottles in 9 in number. MO.4 : Bag Pipper Wiskety of 180 m.l bottles 2 in number 7

MO.5 : Mc.Dowell Wiskey of 180 ml bottles 2 in number MO.6 : Mc.Dowell VSOP Brandy of 180 ml bottle 1 in number and 90 m.l bottle 1 in number MO.7 : Haywards Whiskey of 180 m.l bottles 2 in number MO.8 : Old Tavers 180 m.l bottle 2 in number MO.9 : Mc.Dowl Brandy of 180 m.l 4 in number and 90 m.l bottles 16 in number MO.10: Manson house of 180 m.l bottled 4 in number and 90 m.l bottles 4 in number MO.11: Officers Choice Wiskey of 90 ml bottles 4 in number MO.12: sample bottles in 16 in number all varieties

Sd/-P. Srinivas

//true copy//III AJCJ Tirupati

III Addl.Judl. Magistrate of First Class, Tirupati.

8

IN THE COURT OF THE III ADDITIONAL JUDICIAL MAGISTRATE OF FIRST

CLASS, T I R U P A T I

CALENDER CASE NO.38 of 2013

Date of offence:30/12/12

Date of complaint:30/12/12

Date of taken on file:20/02/13

Date of apprehension of accused:30/12/12

Date of commencement of trial:11/03/15

Date of close of trial:12/05/15

Date of sentence of order:13/05/15

Complainant:Sub Inspector of Police, West Police Station, Tirupati in Cr.No.234

Name of the accusedFather's NameAge in years

A.YeswanthBramahaiah21

VillageMandalReligion Calling

D.No.2-174/B1, Giripuram, S.D. Road, Tirupati. Caste by Hindu Tirupati, working at Sai Achary. Sneha wine shop.

Nature of offence u/Sec.34 (a) of AP Excise Act

Finding of the Accused is found not guilty court

Sentence of Order In the result, the accused is found not guilty for the offence u/sec.34 (a) of

AP Excise Act, he is acquitted u/sec.248(1) Cr.P.C. the accused is in jail and he shall be released forthwith if he is not required in any other case. MOs.1 to 12 are ordered to be destroyed after expiry of appeal time.

III ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS,

TIRUPATI.

To, The Hon'ble I Addl. District Judge, Chittoor.

Dis.No................./2015.

1

IN THE COURT OF THE III ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS ::

TIRUPATI

Present:: Sri P.SRINIVAS, III Additional Judicial Magistrate of First Class, Tirupati

Friday, the fifteenth (15th) of day of May, two thousand fifteen.

S.T.C. No. 8 of 2009

The State of Andhra Pradesh, rep., its by the Food Inspector, Chittoor District, Chittoor.

.. Complainant

-Versus-

S.D.S. Babji, aged 48 years, S/o Dharmaji Rao, Owner of M/s Om Sai Ram Enterprises, D.No.4- 3-492, Giripuram, Tirupati, Chittoor District.

.. Accused

This case is coming on 14.5.2015 before me for final hearing in the presence of the learned Assistant Public Prosecutor for State and of Sri K.C.C.K. Reddy, Advocate for the accused and upon hearing their arguments and upon perusing the documents available on record and having stood over for consideration till this day, the court delivered the following :

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

1.This is a case filed by the Food Inspector, Chittoor District, Chittoor for the offence punishable u/Sec.7(v) of Food Adulteration Act 1954 and Sub-Rule 28 of Rule 49 and 50 (1) of Prevention of Food Adulteration Rules-1955 and punishable u/Secs.16(1) (a) (ii) of

Prevention of Food Adulteration Act, 1954.

2. The brief facts of the complaint are as follows: On 29.04.2008 at about 3:30 pm., he inspected the manufacturing unit of M/s Om Sairam Enterprises, D.No.4-3-492 Giripuram,

Tirupati by securing LW2 M.Vimala to be a witness and at that time accused was present and transacting the manufacture and sale of Om Ganga Brand PD water. During the inspection he found Om Ganga Brand PD water being manufactured in the said unit. LW1 also found stock of 1000x200 ml sealed packets with lable declaration as Om Ganga Branch packaged drinking water and enquired accused. Accused replied that the PD water was manafactured in the said unit for sale of human consumption without BIS certificate and accused said that he would apply for

Bis certification and food licence soon. He prepared a panchanama and obtined the signature of accused and LW1 Vimala and he also signed it. He sent a detailed report to the Director, IPM, 2

PH Labs and food (health) Administration, Hyderabad and in turn the Director Food (health) authority, A.P Hyderabad issued a written consent to launch prosecution against accused.

3. The case was taken on file against the accused for the offence punishable u/Sec.7(v) of Food Adulteration Act 1954 and Sub-Rule 28 of Rule 49 and 50 (1) of Prevention of Food Adulteration Rules-1955 and punishable u/Secs.16(1) (a) (ii) of Prevention of Food

Adulteration Act, 1954.

4.On appearance of the accused the copies of documents are furnished to him

U/s.207 Cr.P.C and he was examined u/Sec.251 Cr.P.C., in which, the accused denied the offence and pleaded not guilty and claimed to be tried.

6.During the course of trial, on behalf of the complainant, Pws.1 and 2 were examined and got marked Exs.P1 to P6 on behalf of the prosecution.

7.After closure of the evidence on behalf of the complainant, the accused was examined u/Sec.313 Cr.P.C by explaining the incriminating evidence appearing against him in the evidence of PW1 & 2, in which he denied the same. No witnesses were examined and no documents were marked on behalf of the accused.

8.Heard both the sides.

9.Now, the points for determination is

1)Whether the prosecution has proved the guilt of the accused beyond all reasonable doubt for the offence punishable u/Sec. 7(v) of Food Adulteration

Act 1954 and Sub-Rule 28 of Rule 49 and 50 (1) of Prevention of Food

Adulteration Rules-1955 and punishable u/Secs.16(1) (a) (ii) of Prevention of Food Adulteration Act, 1954 or not?

2)To what relief?

10.The learned Assistant Public Prosecutor has submitted her arguments stating that

PW1, who is Gazetted Food Inspector, clearly and categorically deposed in his evidence before this court by reiterating the contents of Ex.P3 panchanama about his inspection of M/s OM Sai

Ram enterprises in the presence of PW2 and found OM Ganga Brand PD water being manufacture the unit and also found one thousand seald 200 ml each backet with lable declaration as OM Ganga Brand Packaged drinking water without BIS certificate, as such, he prepared Ex.P3 mahazarnama later, PW1 sent a detailed report to director IBM PH labs and food (health) Administration A.P Hyderabad and getting written consent for prosecution of the accused 3 for the offence charged against him. Later, he filed complaint in this court. She further argued that the Food Adulteration Cases are techincal Cases, even PW2 did not support the case of the prosecution, the evidence available on record from PW.1 with documentary proof cannot be discarded. So, the prosecution proved it's case beyond all reasonable doubt. Hence the accused is liable to be convicted.

11.On the other hand, the defence counsel submitted his arguments stating that PW1 did not seize said water packets whether it contains OM Sai Ram Enterprises in the presence of

PW2 and PW1 also failed to seize any document to show that whether the accused is the proprietor of said OM Sai Enterprises or not since PW2 who is said to be mahazar did not support the case of prosecution and the contents of mahazarnama is not proved by the prosecution and PW2 mediator as such stated that she do not know about the facts of the case and in her presence no food inspector took any water packets without containing BIS certificate. So, the evidence of PW1 and 2 are contradicting unless PW1 sent the water satchet to director along with his report without submitting any proof with regarding to ownership of shop, how a written consent was ordered to prosecute the accused under Ex.P4. Except the oral evidence of PW1 no documents evidence placed by prosecution. He further argued that there is no such M/s OM Sai

Ram Enterprises in D.NO.4-3-492, Giripuram, Tirupati, Chittoor District. Hence the prosection failed to prove it's case beyond all areasonable doubt, hence accused is enttield for acquitttal.

12.At this stage, it can be seen whether the evidence of PWs.1 & 2 coupled with

Exs.P1 to P5 is sufficeint for base conviction after scrutinising their evidence with due care and caution.

13.It is the evidence of PW1 who is Food Inspector deposed in his evidence by reiterating the contents of his complaint. During his cross-examination, he himself stated that the mediator who signed on mahazarnama is residing in Arundathi Street, Tirupati and the accused who alleged to be present and doing alleged business situated in Giripuram Tirupati, he further stated that he is the scribe of Ex.P3 mahazarnama, he further admitted that he has not mentioned in Ex.P3 the separate endorsement to the effect the contents of mahazarnama read over by accused and admitted by him to be true and thereafter put his signature. He further admitted that he has not taken one water sachet found by him and throusand sachets drained the said sachets and seized the same in order to send the same to director to accord sanction to prosecute the accused. He further stated that he has send requisition to director for sanction on 08.05.2008, but he has not filed said requistion copy before the court along with complaint. He further stated that Ex.P4 does not reflected what are the papers which includes mahazarnama, received by the director from me for according sanction, after perusing the same.

4

He further stated that there are number of houses at Giripuram in between alleged shop of accused i.e., alleged manufacturing unit. Some suggestions were given to him, but he denied the same.

14.It is the evidence of PW2 who is said to be mahazar, she stated that she does not know anything about the facts of the case and in her presence no food inspector took any water packets without containing BIS certificate. She further stated that on one day, she went to

Giripuram to her relatives house, the officer of neighbour of her relatives house at Giripuram, requested her to put her signature in white paper and Ex.P6 is her signature. As this witness did not support the case of prosecution as such, she was declared by APP as hostile and during her cross examination the contents of panchanama is confronted with the witness but the same is denied by the witness.

15.The main contention of the defence counsel is that the accused is no way concerned with that of M/s Om Sai Ram Enterprises, Giripuram, Tirupati Chittoor District and he never selling any water sachets and he was not in possession of water sachets as such PW1 has not secured any empty sachets of water packets and accused never violated the rules and Food

Adultration Act. So the burden is always on the prosecution to prove whether the accused is the owner of M/s Om Sai Ram Enterprises, Giripuram, Tirupati Chittoor District and found one thousand water packets of 200 ml each without containing BIS certificate or not.

16.It is not the case of the prosecution that PW1 seized those water sachets in order to send the same to director to accord sanction orders to prosecute the accused and the sanction order does not reflected the name of the Om Sai Ram on the sachets sheets. Hence, the sanction orders in no value in the eye of law.

17.I have gone through the Ex.P3 mediatorsnama, as if, the entire contents were happened in the presence of PW2 to the effect that PW1 inspected the shop of the accused who is present as proprietor of said M/s Sai Ram Enterprises in her presence. But PW1 never seized SSI license from accused even though that accused stated that he is having such SSI license as per the contents of Ex.P3, to find out who is the real owner of the said shop and in whose favour, the license of said shop stands. Non seizure of SSI lincense from accused is best known to PW1.

Further PW2 who is crucial witness, did not support the case of prosecution and the contents of

Ex.P3 is also not proved by the prosecution to the effect that in the presence of PW2, PW1 inspected the shop of the accused. No doubt, the food inspector evidence alone can be taken into consideration without corroboration of any independent mahazars, since his evidence is not like a police official. But, in the instant case, PW1 never tried to seize the water sachet or sent the 5 same to Director IPM, PH Labs and Food Health Administration, Hyderabad for sanction orders.

When PW1 knows that he found nearly one thoushand water sachets of 200 ml each without having BSI certficate, it is his duty to neither seized the same nor destroyed the same under a cover of mahazarnama, because according to him the water is not consumption for human being.

So, no steps is being taken by him. Hence non taking steps by PW1 at the earliest point of time is best known to him. Furthermore, unless he sent any sealed water empty sachet along with his report to Director for sanction orders to know whether it contains BIS Certificate or not, how a sanction orders under Ex.P4 is issued by Director on the basis of the report of PW1 without documentary evidence, except on oral evidence. Furthermore, PW2 evidence is clear that in her presence no food inspector took any water packet without containing BIS certficate. So, the evidence of prosecution witnesses is in two paralles and the contents of Ex.P3 mahazarnama is not proved by the prosecution. Further, during the cross examinatio of PW1 himself stated that

Ex.P4 does not reflected what are the papers which include mahazarnama, received by the director from him to accord sanction after perusing the same. PW1 also admitted that he has not taken any water sachets found by him amount throusand sachets draned the said sachets and seized the same in order to send the same to director according to sanction order to prosecute the accused.

18.Further, no water sachets are sent for chemical examination to know whether those water sachets are not fit for human consumption and also it does not containing BIS certificate.

Unless the crucial documents seized are placed before the court or get any expert order this court cannot believe the oral evidence of PW1 alone without corroboration of PW2 who is crucial witness and mahazardar in the case in hand.

19.So from the admissions and also evidence on record, it made clear that the prosecution failed to prove the facts to the effect that M/s Om Sai Ram Enterprises, Giripuram,

Tirupati, Chittoor District was in existence by the time of alleged inspection and the accused was owner of the said firm. The prosecution has also not tried to seize any SSI licence to find out who is the real proprietor of the said Om Sai Ram Enterprises, Giripuram, Tirupati.

20.The learned defence counsel submitted decision reported in the

1) State of Maharastra Vs Hirji Dhanji Shah reported in 1998 Cri.L.J.1828.

2) Maya Prakash Vs State of UP and another reported in 1998 Cri.L.J.2876.

21.I have gone thorugh the said decisions with due respect. The propositions of law is optly application to the present case on hand. Since the facts and circumstances are one and the same.

6

22.In view of the facts and circumstances and in the light of the evidence, I am inclined to note that the concerned Food Inspectors has foisted this case without collecting piece of paper to prosecute the accused or the culprits which ultimately effect the criminal justice delivery system. Hence, the accused is entitled for Acquittal.

23.In the result, the accused is found not guilty for the offence punishable u/Sec.7(v) of Food Adulteration Act 1954 and Sub-Rule 28 of Rule 49 and 50 (1) of Prevention of Food

Adulteration Rules-1955 and punishable u/Secs.16(1) (a) (ii) of Prevention of Food Adulteration

Act, 1954. Hence, he is acuquitted u/sec.255 (1) Cr.P.C. His bail baonds if any shalls tand canceled. After expiry of appeal time.

Typed to my dictation by the Personal Assistant, corrected and prounced by me in the open Court, this the 15th day of May, 2015.

III Addl.Judl.Magistrate of I Class, Tirupati.

APPENDIX OF EVIDENCE

FOR PROSECUTION FOR ACCUSED

PW1: V. Nageswar Rao-Nil- PW2: M. Vimala

EXHIBITS MARKED ON BEHALF OF

PROSECUTION

Ex.P1:- G.O.Ms.No.188, H M & Family Welfare (L2) dt:28.2.1991. Ex.P2:- Notification by Government. Ex.P3:- Panchanama dt.29.04.2008. Ex.P4:- Prosecution orders. Ex.P5:- Complaint dt.30.09.2008 Ex.P6:- Signature of PW2 in medation report.

ACCUSED

-NIL-

MATERIAL OBJECTS :- -NIL-

III AJCJ

Tirupati 7

Accused called present

Judgment pronounced. (V.S.J)

In the result, the accused is found not guilty for the offence punishable u/Sec.7(v) of Food Adulteration Act 1954 and Sub-Rule 28 of Rule 49 and 50 (1) of

Prevention of Food Adulteration Rules- 1955 and punishable u/Secs.16(1) (a) (ii) of Prevention of Food Adulteration Act, 1954. Hence, he is acuquitted u/sec.255 (1) Cr.P.C. His bail baonds if any shalls tand canceled. After expiry of appeal time.

III AJCJ, TPT

1

IN THE COURT OF THE III ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS::

TIRUPATI

Present :: Sri P.Srinivas, III Additional Judicial Magistrate of First Class, Tirupati

Friday, the fifteenth (15th) day of May, two thousand fifteen

C.C.No.252 of 2012

The State of Andhra Pradesh, rep., by its, the Sub Inspector of Police, M.R.Palli Police Station.

(Cr.No.66/2008 of M.R Palli Police Station)

...Complainant

-Versus-

1. Kotakonda Eswaramma, age 45 years, W/o K.Viswanadham, Vadde by caste, Coolie, D.No.6-232, Tarakaraa Nagar, Peruru Panchayat, Tirupati Rural.

2. Mallela Gurumurthy, aged about 35 years, S/o Late Venkata Nagaiah, Vadde by caste, Coolie, Udayamanikyam, Toppireddigari Palle Y.V.Palem (m).

3) Mallela Neelakantam, aged about 47 years S/o Late Venkata Nagaiah, Vadde by caste, Udayamanikyam, Toppireddigari Palle, Y.V.Palem Mandal.

(The case against A1 and A2 is abated on 04.10.2010 since died).

....Accused

This case is coming on 15-05-2015 before me for final hearing in the presence of the learned Assistant Public prosecutor for State and of Sri Gali Srinivasulu, Advocate for the accused and upon hearing their arguments and upon perusing the documents available on record and having stood over for consideration till this day, the court delivered the following:

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

1.The Sub- Inspector of police, M.R.Palli PS, Tirupati filed charge sheet against accused/A.1 to A.3, for the offence punishable u/s452, 427, 326, 324 r/w 34 IPC.

2.The brief facts of the case of the prosecution that : On the night 25.05.2008 at 12:30 am., while he and his wife and younger son Anilkumar Reddy were sleeping in the house, somebody knocked the door from out side calling his name, he opened the door thinking that some lorry driver of their tiles company. Some male persons entered into the house, though he obstructed them. The accused A1 to A3 and they were beat with iron rod on the left side of the head and caused bleeding injury and also beat with the same rod on the right thigh and left side back with common intension, immediately he was shifted to SVRR Hospital, Tirupati for 2 treatment. After completion of investigation LW13 laid charge sheet.

3.The case was taken on file against accuseed/A.1 to A.3 for the offence to punishable u/s452, 427, 326, 324 r/w 34 IPC.

4.On appearance of the accused/A.1 to A.3, the copies of case documents were furnishd to them u/s.207 Cr.P.C. and they were examined u/s.239 Cr.P.C. in which the accused/A.1 to A.3 denied the offence punishable offence punishable u/s452, 427, 326, 324 r/w 34 IPC and pleaded not guilty and claimed to be tried.

5.During the course of trial, on behalf of the prosecution, PWs-1 to 5 examined and got marked Exs.P-1 to P8, M.O.1 on behalf of the prosecution.

6.After closure of prosecution evidence, the accused/A.3 was examined u/s.313

Cr.P.C. With regard to incriminating material found in the evidence of prosecution witnesses, the accused/A.3 denied the same and reported no defence evidence on his behalf.

7.Heard both sides.

8.Now the point for determination is

Whether the prosecution is able to bring home the guilt of the offenses charged offence punishable u/s452, 427, 326, 324 r/w 34 IPC. against the accused/A.1 beyond all reasonable doubt?

9.At this stage it can be seen whether the evidence of PW1 to 5 coupled with Ex.P1 to P8, M.O.1 are sufficient for base conviction for the offence charge against the accused/A.3 after scrutinizing their evidence with due care and caution.

10.It is evidence of PW1 who is complainant and injured, he deposed his evidence by retriting his contents Ex.P.1 and during his cross-examination, he stated that accused/A.3 is residing in Yerravari Palem and it is a distance of 40 km from Tirupati and the younger sister of

A.3 is residing in his neighbor house and A.3 used to came to her sister house. He further admitted that he never witnessed that A.3 bite the left thum imprission of his wife, but the same is informed by his wife to him at the time she was admitted in the hospital. Some suggestions are given to him by the defence counsel, the same is denied by the witness.

11.As can be scene from the evidence of PW.1 at first time he identified A.3 is the person bite thumb finger of PW.2 on her left hand. I have gone through the Ex.P.1 wherein the name of A.3 is not mentioned and also Ex.P.4 FIR does not shown the name of A.3 as one of the culprits along with accused. Further, no Test Identification Parade conducted through him with the culprits and PW.1 also never stated before ASI that he can identified those persons who caused injuries to him. So, at first time, PW.1 identified A.3 and he bite thumb finger of PW.2 is 3 not corroborated with the medical evidence and his version is not accepted and also not relaied on.

12.It is the evidence of PW2 who is wife of PW.1, she deposed her evidence before the court and during her cross-examination she admitted that A.3 used to stay in the house of A.1 and she has no personal acquaintance with A.3 and herself went to police station and presented written report against A.1 and others and some suggestions given by defence counsel the same is denied by the witness.

13.As can be scene from her evidence she first time identified A.3 from before the court and she never stated that her finger was biten by A.3 to PW.1 at the hospital or any place and her evidence also not corroborated to the evidence of PW.3 and 4, who are independent witnesses.

14.I have gone through the Ex.P.8 wound certificate there is no such injury found on her left thumb finger and her evidence is also not corroborated with the medical evidence.

Hence, her evidence also not taken the consideration.

15.PW.3 and 4, who are said to be eye witnesses, but there never spoken anything about the facts of the case, as such they were declared by APP Hostile and during the respective cross-examination, Ex.P.2 and P.3 are confronted with their ealrier 161 Cr.P.C statements, but witness denied the same. Hence, there evidence is not much helpful the case of prosecution.

16.It is the evidence of PW5, who is investigation officer, he deposed his evidence by reiterating the contents of his investigation and Ex.P4 to P8 and MO.1 are marked through him and during his cross-examination, he stated that he did not seized any documents to show that the disputed land belongs to whom and further stated that he did not photographed the scene of offence and the rough sketch does not disclose the place of alleged scene of offence. some suggestions are given to him by the defence counsel the same is denied by the witness.

17.As can be scene from the evidence, he only arrested A.1 and A.3 and later he hand over CD file to LW.12, who, after receipt of wound certificate, he laid charge sheet, but actually

LW.7, who is who register the case and examined the witnesses including recorded their statements and observe the scene and prepared rough sketch and also seizer of MO.1 under cover of Ex.P.6 Mahazarnama. But the police neither served the summons nor produced not only

LW.7, but also mediators and LW.12. As such their evidence was closed by this court. Since it is a listed case and the primry accused i.e., A.1 and A.2 died and the case against them was abated.

Further the evidence of PW.5 is not corroborated evidence of PW.1 and 2 and the doctor who issued Ex.P.7 and P.8 wound certificates also not proved by the prosecution and those docuemtns are marked through PW.5.

4

18.In view of the facts and circumstances, in view of the material available on record,

I am of the considered opinion that the prosecution has miserable failed to prove its case beyond all reasonable doubt for the offence punishable u/s452, 427, 326, 324 r/w 34 IPC. Therefore accused/A1 is entitled for acquittal.

19.In the result, accused/A1 found not guilty for the offence punishable u/s452, 427, 326, 324 r/w 34 IPC. Hence, accused/A.1 is acquitted u/sec.248 (1) Cr.P.C. his bail bonds if any shall stands cancelled after expiry of appeal time. M.O.1 is ordered to be destroyed after expiry of appeal time.

Typed to dictation by Personal Assistant, corrected and pronounced by me in the open court, this the 15th day of May, 2015.

III Addl.Judl.Magistrate of I Class, Tirupati

Appendix of Evidence

Witnesses examined

For Prosecution For Accused

PW1 : K.Sahadeva Reddy -Nil- PW2 : K. Jyothamma PW3 : G. Bujjamma PW4 : M. Nagarjuna Reddy PW5 : Y.Syam Sundaram

EXHIBITS MARKED ON BEHALF OF

Prosecution

Ex.P1: Statement complainat Ex.P2: 161 Cr.P.C. Statement of PW3 Ex.P3: 161 Cr.P.C. Statement of PW4 Ex.P4: First Information Report in Cr.No.66/2008 of M.R.Palli P.S. Ex.P5: Rough sketch in Cr.No.66/2008 of M.R.Palli P.S. Ex.P6: Police proceedings Ex.P7: Wound certificate of PW1 Ex.P8: Wound certificate of PW2

Accused:

-Nil-

Material Objects:

M.O.1 : Asbestos cement pieces

Sd/-P. Srinivas

//true copy//III AJCJ Tirupati

III Addl.Judl. Magistrate of First Class, Tirupati.

5

IN THE COURT OF THE III ADDITIONAL JUDICIAL MAGISTRATE OF FIRST

CLASS, T I R U P A T I

CALENDER CASE NO.252 of 2012

(The case against A1 and A2 is abated on 04.10.2010 since died).

Date of offence:26/05/08

Date of complaint:26/05/08

Date of taken on file:24/09/08

Date of apprehension of accused:22/07/08

Date of commencement of trial:03/02/15

Date of close of trial:15/05/15

Date of sentence of order:15/05/15

Complainant: Sub Inspector of Police, M.R.Palli Police Station in Cr.No.66/2008

Name of the accusedFather's NameAge in years

1. Kotakonda EswarammaW/o K.Viswanadham45

2. Mallela GurumurthyLate Venkata Nagaiah35

3) Mallela NeelakantamLate Venkata Nagaiah47

VillageMandalReligion Calling

Vadde by caste, Coolie, D.No.6- Peruru Panchayat, Tirupati Rural Hindus 232, Tarakaraa Nagar Toppireddigari Palle Y.V.Palem (m). Vadde by caste, Coolie, Udayamanikyam

Vadde by caste, Udayamanikyam Toppireddigari Palle, Y.V.Palem Mandal

Nature of offenceu/Sec.452, 427, 326, 324 r/w 34 IPC

Finding of the courtAccused/A1 is found not guilty

Sentence of Order In the result, accused/A1 found not guilty for the offence punishable u/s.452, 427, 326, 324 r/w 34 IPC. Hence, accused/A.1 is acquitted u/sec.248 (1) Cr.P.C. his bail bonds if any shall stands cancelled after expiry of appeal time. M.O.1 is ordered to be destroyed after expiry of appeal time.

III ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS,

TIRUPATI.

To, The Hon'ble I Addl. District Judge, Chittoor.

Dis.No................./2015.