Sri Radha Krishna Krupa Sagar

1

IN THE COURT OF THE IV ADDL.METROPOLITAN SESSIONS JUDGE;

HYDERABAD.

Present: Dr.V.Radha Krishna Krupa Sagar, IV Addl .Metropolitan Sessions Judge, Hyderabad.

Dated this the 1st day of May, 2015

CRIMINAL APPEAL No. 1175/2012

From what court this appeal is preferredII Special Magistrate, Hyderabad. Number of the case in that Court C.C.NO. 203 OF 2012

Number of the appeal Crl.A.No.1175 of 2012

Name and description of the Dalmia Cement (Bharath) Limited,Having appellant/complainantits registered office at Dalma\iapuram, Trichy District. Sales Office at 3rd Floor, Amshiri Shamera, Old Lancer Lanes, 31, S.D. Road, Secunderabad.-25 Rep. By its Asst. Manager Sales Accountant, A.Shymala Rao S/o. Raghava Rama Murty, aged 50 years.

Name and description of the 1 M/s. Lakshmi Narasimha Traders Rep. respondents/accused:By its Proprietor Mr. P. Narasimha Reddy, S/o. Gangi Reddy R/o. 1/229, Akkyapalli, Govt. ITI Cirle, Kadapa.

2 Mr. P. Narasimha Reddy, S/o. Gangi Reddy, Prop: Sri Lakshmi Narasimha Traders, R/o. 1/1812, Yerramukkapalli, Kadapa. 3 State of AP, rep. By its Add.PP. The sentence and law under which order Accused are found not guilty for the offence was passed in the lower courtunder section 138 of NI Act and accordingly they are acquitted under section 255(1) Cr.P.C.

Whether confirmed, modified or In the result, this appeal fails and is Reversed, if modified the Modification:dismissed confirming the impugned judgment dated 30-11-2012 of learned II Special Magistrate, Hyderabad in C.C.No.203 of 2012.

DATE OR ON WHICH

Presentation18-12-2012

Filing19-12-2012

Notice issued by the Court19-12-2012

Bail bond if appellant is let out on bail- - - - -

Appellant is ordered to be appear31-1-2013 2

DATE OR ON WHICH

Hearing23-4-2015

ORDER 1-5-2015

This appeal is coming on for hearing before me, upon perusing the petition and record of evidence and proceedings and of appeal and upon duly considering the same after hearing the arguments of Sri M/s. G. Ashok Reddy, Advocate, Counsel for the appellant/complainant and Sri V.R.Reddy Kovvuri, Advocate for the Respondents/accused and having stood over for consideration till this day this court delivered the following:

:J U D G M E N T :

1 .A private complainant filed this Criminal Appeal Under section 372 Cr.P.C seeking to set aside the judgment dated 30-10-2012 of learned II Special Magistrate, Hyderabad in C.C. No. 203 of 2012 and prays for conviction of respondents/accused for an offence

Under Section 138 of Negotiable Instruments Act.

2R1 and R2 herein were A1 and A2 before learned trial court and after due trial they were found not guilty for the offence under section 138 of Negotiable Instruments

Act and under impugned judgment, they were acquitted of the offence.

3 For the sake of convenience the appellant is referred as complainant and respondents herein are referred as accused for the sake of convenience. The

Negotiable Instruments Act, 1881 referred as N.I.Act, for the sake of brevity.

4 On 10-10-2011 complainant filed a private complaint before the learned trial court stating that it is an incorporated company engaged in manufacturing and marketing cement. A2 is Proprietor of A1 proprietary concern. Accused are stockists for complainant and accused are located at Kadapa. In its usual course of business complainant has been supplying cement to the accused and a running account is maintained. Towards payment of the outstanding dues, accused issued a cheque

dated 5-8-2011 for Rs. 3,97,814/- drawn on Indus Ind Bank Limited, Kadapa branch. On

presentation of this cheque, banker returned it unpaid endorsing “funds insufficient” in the account of the accused. Cheque return memo date 9-8-2011 was received by 3 complainant on 10-8-2011. On 26-8-2011 complainant got issued a legal notice demanding the accused to repay the cheque amount within 15 days from the date of the receipt of notice which was dispatched by way of registered post and also by way of courier post. On 30-8-2011 notices were returned unserved with postal endorsement that “addressee refused to receive the notice”. Accused failed to repay the cheque amount. With these allegations complainant sought for prosecution and punishment of the accused for the offence under section 138 of N.I.Act.

6 Learned trail court took cognizance for the offence under section 138 of N.I. Act and secured the presence of the accused. They were furnished with copies of documents. Accused were examined under section 251 Cr.P.C for the offence under section 138 of N.I. Act. They denied the allegations and pleaded not guilty.

7 At the trial, Sales Account Assistant Manager of the complainant company who was duly authorized by company testified as PW1. Ex.P1 to P15 were marked.

8 Incriminating evidence available on record was offered to the accused under section 313 Cr.P.C seeking their explanations. They denied the truth of the entire evidence Thereafter accused testified as DW1 and Ex.D.1 to D6 were marked.

9 After hearing arguments on both sides and after scrutiny of the evidence on record, learned trial court found that signature on Ex.P4 cheuqe was admitted by accused and such cheque was dishonoured for insufficiency of funds in the account of accused as evidenced Ex.P.5, and Ex.P.6 and therefore it presumed, in terms of

Section 139 of N.I.Act, that the accused had given such cheque towards repayment of the debt. Then it considered the evidence on both sides to find out whether the accused rebutted the presumption or not. Defence of the accused was that the said cheque was issued in blank along with another cheque to the complainant as security at the time when accused was appointed Distributors/Stockiest for the company and this cheque was never issued towards disharge of any debt or liability. Learned trial court found favour with that contention by relying on certain facts and circumstances available on record. It observed going by Ex.D1 bank account statement of accused, on which 4 account Ex.P.4 cheque was drawn. It was seen from that the serial number of cheques prior to Ex.P.4 and subsequent to Ex.P.4 were spent in regular course of events in the year 2009 itself and therefore there was no probability of issuing Ex.P.4 cheque in the year 2011. It observed that one of the employees of the complainant company and the accused fought against each other and in that regard crime no. 212/2010 as per Ex.P15 was registered and that case was tried as C.C.No.397 of 2010 and a judgment of conviction was recorded against this accused and others as per Ex.D.3 certified copy of the judgment and as against that the present accused preferred Crl.A.No.154 of 2011 which is pending before the appellate court as evidenced by Ex.D6 memorandum of appeal. Thus, even by 2009-2010, the relationship between accused and complainant company was not good and was strained and in those circumstances it was improbable that accused could have given Ex.P.4 cheque in the year 2011 and those circumstances it indicate that this cheque must have been given much earlier as security but not towards discharge of debt. It further observed that accused detected that one of the employees of complainant company was playing fraud and raised false invoices and had taken stock from the complainant company. In that regard way back in the year 2010 under Ex.D2 notice accused alerted the complainant company. Subsequently, complainant company complained against its own employee to police and crime no.10 of 2011 was registered and its certified copy is Ex.D4. It observed that it is in that context of such facts, it dis-believed Ex.P.14 delivery challans filed by the complainant.

It further observed that even as per the evidence of PW1 none of those challans were signed by any of the employees of accused. From all those facts and circumstances, it observed that the subject matter cheque was given as security and it was not a cheque given towards discharge of liability. For these reasons it found that accused rebutted the presumption. Finally, learned trial court found the accused not guilty and acquitted them.

10 It is that judgment which is challenged in this appeal stating that learned trial court failed to appreciate relevant evidence and came to wrong conclusions. It is stated that accused as DW1 admitted the correctness of Ex.P.3 statement of account 5 maintained by complainant with reference to its transactions with accused, the amount outstanding due therein was sought to be repaid by the accused and therefore he gave

Ex.P.4 cheque dated 5-8-2011. Since outstanding due was established and since cheque was admittedly signed by accused, learned trial court ought to have convicted the accused. It is stated that Ex.P.14 delivery challans pertain to accused and they were signed by employees working under accused and learned trial court discarded them which is erroneous. It is said that the complainant filed a criminal case against one of those employees for committing fraud and that case does not indicate any loss sustained in that regard by the accused and therefore transactions between accused and complainant cannot be dis-believed. The theory that cheques given as security was not probablised by the accused. Learned trial court failed to raise necessary presumptions provided under section 118 and 139 of N.I.Act and failed to follow the law laid down by Hon’ble Supreme Court of India in that regard. Accused failed to lead cogent evidence to rebut the presumptions. Delievery challans under Ex.P.14 were signed by employees of accused. From cross examination of PW1, accused failed to elicit anything useful. Learned trial court had given undue importance to Ex.D4 and trial court failed to consider failure of giving reply notice by the accused. In his evidence

DW1 said that his brother in law Mr. Dharma Reddy used to look after his business and learned trial court accepted that without any evidence placed on record to believe such statements of DW1. It grossly erred in holding that there was strained relationship between the parties. The defence of the accused had taken here by him was never taken by him in CC No. 397 of 2010 covered by Ex.D3. Since accused did not suffer anything he did not file any case against the employees of complainant company concerning fraudulent transactions. Learned trial court had given undue importantance to Ex.D2 and D5 and in the absence of postal receipts indicating Ex.D.2 being posted to complainant, learned trial court ought to have found that accused did not issue Ex.D2 notice. For all these reasons it prays to upset the impugned judgment.

11 Leanred counsel for accused supported the impugned judgment on facts and law and submitted that it is a well reasoned judgment requiring no intereference.

6 12 Learned counsel on both sides submitted oral arguments.

13 From what is stated above, the following points emerge for consideration :

1) Whether Ex.P.4 cheque brings penal conseuqces under section 138 of

N.I.Act?

2) Whether the impugned judgment suffers from any error on law or fact?

POINTS 1 AND 2 ANSWERED:

14From the evidence on record and the impugned judgment and the grounds of appeal the following facts are found undisputed. Complainant is an incorporated company manufacturing cement and it has dealers/stockists at various places in the country. At Kadapa A1 Proprietory concern managed by A2 was one such stockist for the complainant. As per the record, in the year 2008 or 2009 the business transactions between parties commenced. From the evidence of PW1 and DW1 it is seen that from time to time complainant was supplying stock on credit and accused was making payments. A running account has been maintained in the books of complainant.

Ex.P.3 is statement of account. During cross examination of DW1 he was shown Ex.P.3 and he admitted it properly reflected all the payments he made to the complainant. He disputed an adjustment entry for Rs. 96,773/-. He disputed statement account that he was due to pay Rs.3,97,814/-. Thus, there is dispute between parties about indebtedness of accused.

15According to complainant and the evidence of PW1, accused was due to pay towards stock received by him and towards such repayment, he gave Ex.P.4 cheque dated 5-8-2011 for Rs. 3,97,814/-. PW1 said that accused came to his office and gave this cheque. In his evidence DW1 denied such fact but admitted his signature on the cheque and disputed the date mentioned on the cheque and stated that it was not given at that time and it was one out of two cheques he had given to complainant when he became its stockiest and such cheques were taken as security from him since complainant was to supply goods on credit basis. Since signature on cheque was admitted by accused, the learned trial court rightly drew presumption under section 139 7

N.I.Act and observed that it was presumed to have been given only towards discharge of debt or liability and therefore the contention in the grounds of appeal that the tiral court failed to follow the judgment of Supreme Court of India and failed to draw necessary presumptions in favour of complainant and against accused is incorrect on facts. It is undisputed that complainant presented this cheque for encashment and its banker dishonoured it and issued Ex.P.5 cheque return memo and informed it under

Ex.P.6 stating that because of insufficiency of funds in the account of the accused, this cheque was dishonoured. It was at that juncture, learned trail court put onus on the accused to rebut the presumption raised against him under section 139 of N.I.Act.

16 The facts narrated above indicate two defences on the part of the accused. One is that he had given this cheque only as security and not towards discharge of any enforceable debt or liability. The other defence of the accused is that he was not due to pay any amount to the complainant.

17 Coming to the first defence raised by the accused, there are several circumstances that are available from evidence and they were thoroughly dealt with by learned trial court which offered cogent reasons for accepting the contentions of accused. Learned trial court observed that there was every reason to believe that this

Ex.P.4 cheque was not given by accused in the year 2011 but was given by him in the year 2009 as security and not towards discharge of liability. That is challenged in this appeal.

18 In his evidence DW1 categorically stated that during the year 2008 and 2009 he spent all the cheques that bear the numbers anterior to Ex.P.4 and subsequent to

Ex.P.4. In support of it he filed Ex.D1 statement of account of his banker Indus Ind bank limited. On facts, learned trial court observed that there was no reason to believe that accused would skip Ex.P.4 and spend rest of the cheques. In that situation it found probability in the version of defence that this cheque would have been given in the year 2009 but not about two years later in the year 2011. Learned counsel for complainant submits that it is quite possible for accused to with hold one cheque out of his series of 8 cheques and he could have issued such cheque to the complainant. Such a possibility cannot be ruled out. But such stand was never suggested to DW1 during the course of cross examination. Therefore much credence cannot be given for the contention raised by the complainant. Therefore, the approach of the learned trial court on this aspect cannot be found fault with.

19 It is there in the evidence of DW and it is also admitted by PW1 that Mr. C. Obul

Reddy was an employee of the complainant company. On 20-11-2010 he lodged a complaint with police at Kadapa and that became crime no.212/2010 and it can be seen from Ex.P.15. In this it is alleged that this accused beat Mr.Obul Reddy. Therefore, offence under section 447, 323, 506 IPC were alleged against the accused. It is undisputed that crime was investigated into and that charge sheet was filed and trial was conducted and a judgment of guilt was pronounced as could be seen from Ex.D3 and an appeal was preferred as could be seen from Ex.D6. According to the grounds of appeal, this accused did not spell out any facts he is contending in the present case when he was tried in the above referred criminal case and therefore there is no merit in the contentions of the accused. I find absolutely no merit in this contention. The other case was a dispute between two persons concerning physical fight. There was no need and occasion for this accused to speak the context in which he had given the present subject matter cheque to the complainant company. The trial was completed and that criminal case was disposed of on 15-9-2011. The presence subject matter cheque pertains to an alleged date of 5-8-2011. Above case is only one circumstance to show that relationships between the accused and employees of the complainant company were strained. It was only in that context, learned trial court rightly observed that it was quite improbable for accused to go to complainant and hand over Ex.P.4 cheque in the year 2011 since by then criminal cases were pending between him and employees of the company. Therefore, there is no error in the appreciation of evidence on this aspect by the learned trial court. It may be added that neither the complaint nor the evidence of

PW1 indicate the date on which accused handed over this cheque physically to complainant. Looking at all the circumstances, there is every reason to believe that this 9 cheque might not have been given by the accused to the complainant in the year 2011.

In other words, it is quite probable to think and there are reasons to think that it might have been given much earlier by the accused and that means it was only towards security but not towards repayment of any debt.

20 In the grounds of appeal it is stated that by virtue of Ex.P.14 delivery challans, it is proved that complainant received goods and towards repayment of it, he gave Ex.P.4 cheque. Ex.P.14 shows all the transactions between 17-12-2009 and 29-1-2010.

According to the accused by 2009 itself he stopped doing business with complainant and these delivery challans do not indicate proper information and such stocks were not received by accused and these delivery challans were not signed by accused or his men. PW1 in his cross examination categorically admitted that the persons who signed

Ex.P.14 challans were not the persons working under accused. All this evidence shows that accused is no way responsible for Ex.P.14 challans. That is challenged by complainant in the grounds of appeal. I find no merits in that challenge. DW1 deposed that he came to know fraud concerning cement sales was occurring in Kadapa from the midst of the year 2009 and therefore suspecting trouble and to avoid misunderstandings he issued under Ex.D2 a notice dated 28-7-2010 to the complainant. As per Ex.D5 postal acknowledgement that was served at the address of the complainant. In Ex.D2 he has mentioned that he had come to see a delivery challan no.220 dated 11-7-2009 indicating the name of A1 and it did not bear his signature and it was a fraudulent document. It was in that context he alerted the complainant. That such fraud took place because of mis-deeds of employees of complainant is admitted by PW1 and further on a complaint of complainant crime was also registered as FIR 10 of 2011 by Kadapa police as per Ex.D4. In Ex.D4 complainant has mentioned four or five traders of

Kadapa complaining to it about fraudulent delivery challans and in that regard it detected the fraud by one Mr. S. Ramanaiah and lodged complaint. Thus, it is crystal clear that one Mr. Ramanaiah played havoc with the complainant company and its stockists and he raised false delivery cahllans and that was under investigation by police. These facts lend credibility to the stand of the accused in his challenge to 10

Ex.P.14 delivery challans. All these facts are not met by complainant in any manner. It simply alleged that it did not receive Ex.D.2 notice and for that the argument raised is that postal receipt is not filed by accused. As long as there is postal acknowledgment from the complainant failure of filing postal receipt makes no difference. While PW1 said that Ex.P.14 delivery challans do not bear the signatures of accused or his men, the ground raised in the grounds of appeal states something contrary to it. There are no circumstances to take that contention into consideration and therefore the same is negatived and the findings of the trial court on this aspect are accurate.

21 DW1 said that there was no employee working under him. PW1 said that

Ex.P.14 challans were not signed by any of the employees of the accused. Thus the burden is on complainant to prove that it had actually supplied those goods to this accused and Ex.P.14 challans legitimately came from accused. It had not filed any document nor examined any one to prove either it supplied the goods or the goods were received by the accused so as to think that the accused was due to pay any money concerning Ex.P.14 challans. In the grounds of appeal, it is stated that in the fraud played by Mr. S. Ramanaiah of complainant company, Ramanaiah was remanded as per Ex.D4 and there, there are no averments indicating Ramanaiah did fraud by way of challans concerning aqccused herein. Based on this it is alleged that fraud of

Ramanaiah had nothing to do with the accused. I find no merit in it. Final result of investigastion of that crime is not known to this court and complainant did not file copies of charge sheet against Ramanaiah so as to enable this court to know that

Ramanaiah did not commit any fraud concerning delivery challans of this accused. Even otherwise it is quite probable that police would not have completely unearthed the fraud.

It might not have reached all the victims of Ramanaiah. Therefore the remand report by itself cannot clinch the issue. When no one is sure whether Ex.P.14 delivery challans belonged to the accused, there is no fool proof evidenced to mulct liability on the accused. Hence, this contention of appellant/complainant is negatived.

22 It is true that for Ex.P.7 notice issued by complainant accused did not respond and that aspect remained unchallenged. However, that by itself cannot be a 11 proof positive in favour of the complainant especially since similar conduct was exhibited by complainant for Ex.D2 notice of the accused given in the year 2010. More over, there are clear circumstances shown by accused that Ex.P.4 cheque went into the hands of complainant way back in the year 2009 by which time there was no debt due from accused. Such cheque which was not given towards discharge of liability could not bring penal consequences under section 138 of N.I.Act. I find no merit in the argument.

Judgment of the trial court indicates that the learned trial court perfectly appreciated all facts and law. Both the points are answered against the appellant/complainant.

23 In the result, this appeal fails and is dismissed confirming the impugned judgment dated 30-11-2012 of learned II Special Magistrate, Hyderabad in C.C.No.203 of 2012.

Dictated to the Steno Grade-I, transcribed and typed by him, corrected and

pronounced by me in the open court on this the 1st day of May, 2015.

Sd/- V.R.K.K.Sagar,

IV ADDL. METROPOLITAN SESSIONS JUDGE

HYDERABAD

// t.c.f.b.o //

Superintendent

Copy to:- II Special Magistrate, Hyderabad. (Sending the case records in CC.No.203/2012 of II Special Magistrate, Hyderabad on the file of your court along with copy of Judgment in Crl.Appeal no.1175/2012 on the file of this court.)

1

IN THE COURT OF THE IV ADDL.METROPOLITAN SESSIONS JUDGE;

HYDERABAD.

Present: Dr.V.Radha Krishna Krupa Sagar, IV Addl.Metropolitan Sessions Judge, Hyderabad.

Dated this the 1st day of May, 2015

CRIMINAL APPEAL No. 351/2013

From what court this appeal is preferred VIII Special Magistrate, Hyderabad. Number of the case in that Court C.C.NO. 499 OF 2011

Number of the appeal Crl.A.No. 351 of 2013

Name and description of the Smt. B. Vimala, W/o Sri B. Locabhiram, appellant/complainantaged 65 years, occ: Housewife, R/o. Flat no.2-305, III floor, Divya Shakti Apartments, Hyderabad – 5000 016.

Name and description of the 1 Smt. S.Sailaja D/o. Sri D.V. Naidu, respondents/accused:aged 50 years, Occ: Housewife, R/o. H.No.8-3-229/55/8, Yousufguda Check post, Hyderabad- 500 045. 2 Smt. K. Vimala W/o. K.S. Ramaiah, aged 45 years, Occ: Business, R/o. Plot no.s 62, 63, B.V.R. Colony, Alwal, Secunderabad. The sentence and law under which order Accused 1 and 2 are found not guilty for was passed in the lower courtthe offence under section 506 Part-1 IPC and accordingly acquitted under section 255(1) Cr.P.C.

Whether confirmed, modified or In the result, this appeal fails and is Reversed, if modified the Modification:dismissed confirming the judgment dated 19-3-2013 of learned VIII Special

Magistrate,Hyderabadin

CC.No.499/2011. Furnish a free copy of

judgment to complainant/ appellant.

DATE OR ON WHICH

Presentation24-4-2013

Filing25-4-2013

Notice issued by the Court25-4-2013

Bail bond if appellant is let out on bail- - - - -

Appellant is ordered to be appear25-7-2013

Hearing17-4-2015

ORDER 1-5-2015 2

This appeal is coming on for hearing before me, upon perusing the petition and record of evidence and proceedings and of appeal and upon duly considering the same after hearing the arguments of Sri M/s. P. Krishna Arjun, Advocate, Counsel for the appellant/complainant and Sri. K. Ravinder Reddy, Advocate for the Respondents/accused and having stood over for consideration till this day this court delivered the following:

:J U D G M E N T :

1. A private complainant filed this criminal appeal under Section 372 Cr.P.C seeking to set aside the judgment dated 19-3-2013 of learned VIII Special Magistrate,

Hyderabad in C.C. No. 499 of 2011 and prays for conviction of respondents/accused for an offence Under Section 506 IPC.

2.R1, R2 herein were A1, A2 before the learned trial court and after due trial, they were found not guilty for the offence under section 506 IPC and therefore by the impugned judgment, they were acquitted by the learned trial court.

3.For the sake of convenience, appellant is referred as complainant and respondents are referred as accused as they were arrayed before the learned trial court. The Indian Penal Code 1880 is referred as IPC for the sake of brevity.

4.On 13-5-2005 complainant filed a private complaint before learned trial court stating that on 7-3-2005 these accused along with three or four other persons trespassed into her residence at Flat No.2-305, III Floor, Divya Shakti Apartments,

Ameerpet, Hyderabad and threatened her with dire consequences if she failed to pay

Rs. 6,75,000/- covered by promissory notes dated 21-7-2002, 30-7-2002, 20-8-2002 and 27-8-2002. The said pronotes are fabricated documents and they are not pronotes but are bonds requiring 3% additional stamp duty and they are inadmissible in evidence.

Accused are house wives and they ought not to have given hand loan by way of cash and they ought to have disclosed their source of income. Cash transaction beyond

Rs. 20,000/- is impermisible under Section 269 S of Income Tax Act. Complainant is a house wife and her daughter is a Law Graduate and her husband retired as DGM from

Ministry of Defence. Complainant suffers from diabeties and blood pressure and is aged woman.

3

In the complaint it is further stated that on each and every alternative day, these accused have been demanding for payment of the said money and have been threatening her with dire consequences in vulger language. With these allegations compalinant filed the above complaint requesting the court to refer the same to police under section 156 (3) Cr.P.C.

5.Learned trail court on perusal of a complaint and after recording sworn statment of complainant and her husband, took cognizance for the offence under section 506 IPC and refused to refer the complaint to the police. Thereupon it issued summons and accused made their appearance and a learned counsel appeared to defend them. After furnishing copies of documents, accused was examined under section 251 Cr.PC for the offence under section 506 Part-I IPC. Both the accused denied the allegations and pleaded not guilty.

6.At the trial, the complainant testified as PW1 and her husband testified as

PW2 and Ex.P1 to P17 were marked.

7.Incriminating evidence available on record was offered to the accused under section 313 Cr.P.C seeking their explanations. They denied the truth of the entire evidence. Accused did not adduce any evidence in defence.

8.After hearing arguments on both sides and after considering the entire material on record, learned trial court found that in the complaint the date of offence is mentioned as 7-3-2005. The complaint was filed on 13-4-2005 and the delay was not explained. As per complaint, date of offence is 7-3-2005. But in her sworn statement complainant said that it was on 7-6-2005 and thus she was contradicting her own statement. It observed that if really the incident occurred, the complainant would have gone to the police and compalined but she did not do so. PW2 was found to be a hearsay witness. It found that Ex.P-series documents show the civil litigation between both parties and as per evidence of PW1 after she made her appearance in the civil court, she filed the present complaint. It observed that complainant failed to establish any of the ingredients of Section 506 IPC. It observed that this complaint was filed 4 because of ill-feelings between both the parties. For these reasons, learned trial court found the accused not guilty and acquitted them accordingly.

9.It is that judgment which is challenged in this appeal stating that it is against law and weight of evidence. A victim could either lodge a complaint with court or file an information with police. For not filing information with police, the case of the complainant cannot be dis-believed. Evidence of PW1 is corroborated by PW2 and their evidence indicate accused abusing and demanding money and their threat to kill the complainant. PW1 experienced genuine fear and established the ingredients of

Section 503 IPC and therefore accused ought to have been convicted Under section 506 IPC. For these reasons, she prays to upset the impugned judgment.

10.Learned counsel for accused submitted that there is no credible evidence on record and even evidence adduced does not indicate complainant experiencing alarm at the alleged threats of accused and thus trial court rightly concluded absence of offence and impunged judgment warrants no interference.

11.Learned counsel on both sides submitted arguments. Learned counsel for complainant/appellant filed written arguments.

12.From what is stated above, the following points emerged for consideration :

1) Whether the evidence on record established any offence under section 506 IPC?

2) Whether the impugned judgment suffers from any error on law or fact?

POINT NO.1 AND 2 ANSWERED:

13.Undisputed evidence is that complainant is a woman and both accused are also women. As per the evidence of PW1, these accused filed civil suits against her for recovery of money and they were decreed and as against them she preferred appeals and they were allowed and the lower court judgments were set aside.

O.S. No. 654 of 2005, O.S.No.655 of 2005, S.No.656 of 2005 and O.S.No. 657 of 2005

were the Civil suits for recovery of money based on pro-notes filed by accused against 5 the complainant and others. Under Ex.P1 to P7 those suits were decreed. The above documents are certified copies of judgments and decrees. AS 320 of 2007, 330 of 2007, 321 of 2007 are appeals preferred as against lower court judgments and Ex.P.8 to P.13 are the certified copies of judgments and decrees of the appellate court which indicate that the appeals were allowed and trial court judgments were set aside. Though PW1 has not given evidence explaining Ex.P.14 to P17 they indicate that they are certified copies of judgments and decrees in O.S.No.1846 of 2005 and 1847 of 2005 wherein the

Civil Court declared the promissory notes standing in favour of accused as null and void. These are the documents that were exhibited in evidence. As per these documents, civil litigation have been pending between parties since 2005.

14.The case mentioned allegation of criminal intimidation allegedly occurred on 7-3-2005. Admittedly this complaint was not filed on that day or soon thereafter. As per Ex.P.1 and the subsequent suit documents accused filed the civil suits on 11-4-2005. The present complaint was filed thereafter on 13-4-2005. Thus, after the accused filed suits for recovery of money based on pro-notes this complaint came to be filed. Neither the complaint nor the evidence of PW1 offer any explanation as to what prevented complainant from lodging complaint till 13-4-2005 for the alleged offence occurred more than a month earlier on 7-3-2005. Delay in lodging FIR or delay in lodging a complaint, unless properly explained, would lead to suspicion about truthfulness of it since Law considers spontaneity and truth normally go together and delay breeds falsehood and embellishments. It is in the back ground of above referred facts now the crux of the case need be examined.

15.Complainant accuses that the accused criminally intimidated her in her own house. Section 503 IPC defines criminal intimidation and punishment for it is provided in Section 506 IPC. In terms of section 503 IPC whoever, threats another with injury to his person, reputation or property, with an intention to cause alarm to that person that is criminal intimidation. At para-7 of the written arguments, learned counsel

for complainant/appellant acknowledges the legal position stating that intention to cause

alarm in the mind of the victim is the gist of the offence. The evidence on record must 6 indicate accused threatening the complainant and as a result complainant experiencing fear/alarm. In page-4 of the complaint, complainant has mentioned that on every alternative day accused have been coming and demanding her to pay Rs. 6,75,000/- and threatening her with dire consequences and abusing her in vulgar language. Thus, the accused coming and doing those acts has been a routine affair occurring every alternative day. The fact that on all those several days though the accused did all that what is stated but the complainant did not initiate legal proceedings at any of those earlier occasions is a positive indication that she was not alarmed by the conduct of the accused and she was perhaps only annoyed by their conduct. Being intimidated is different from being annoyed. Causing annoyance is no offence under Section 503 IPC.

At page-3 of the complaint she has stated that on 7-3-2005 these accused along with 3 to 4 other persons trespassed into her residence and demanded her to pay the amount covered by pro-notes. PW1 in her examination in chief voluntarily stated that prior to that date of offence (7-3-2005) she had no acquaintance with accused. As per complaint these two accused and three to four others came into her house. Those three to four other persons are not made parties to the case. According to PW1, she had no acquaintance with these accused also till the filing of offence. It is for her to explain as to how she recognized these two accused out of a few people who came to her house.

She did not explain it anywhere. Even otherwise, the allegation in the complaint and evidence of PW1 that the accused entered into her house demanding her to pay money allegedly due from promissory notes is by itself no offence and at the least asking for payment of money is not criminal intimidation.

16.At the bottom of page-3 of her complaint, complainant has stated that accused and their henchmen threatened her with dire consequences if she failed to pay the demanded amount. Neither in complaint nor in her evidence, PW1 has explained what were the words uttered by the accused against her. Only she knows what the accused told her. Unless she tells the court, there is no source of information for the court to assess as to what accused allegedly told her would cause alram to a reasonable prudent man or not. Making an allegation that accused threatened with dire 7 consequences is an averment which is as vague as it could be. She would have at least narrated the incident with a little more clarity in her evidence as PW1. She did not do that. Strictly speaking in her evidence, she failed even to depose even so much little that was written in the complaint. She has not deposed on oath about accused threatening her with dire consequences. At page-2 of her examination in chief, this is what she has stated which I extract now. “ I filed the present case against the accused alleging that the accused along with some others came upon my house and demanded me to give the said amount forcibly and therefore I filed the present case to punish the accused”. Thus, she has said that she filed complaint with certain allegations. It is up to her to depose what actually happened but she has not chosen to say that on oath in the Court as a witness that accused threatened her with dire consequences. From the extract it can be seen that she has not even told about the threat or intimidation on the part of the accused. She was merely telling that they were forcibly asking her to repay the alleged debt. In these circumstances,the evidence on record failed to establish either alleged threats caused by accused or any alarm experienced by accused. This view in the context of the fact that even according to the complainant this has been a recurring occurrence between accused and complainant speaks for itself that alarm is conspicuously absent as the conduct of complainant would not enable a reasonable prudent man to think that she was really struck by alarm by the conduct of the accused.

17.The evidence of PW2 who is the husband of Pw1 is that he was not present in the house when this incident occurred and his wife telephoned and told about the incident. Thus, his evidence does not assist the Court in verifying any fact.

18.One of the circumstances considered by the learned trial court was as to why complainant did not go to police and complained the incident. In this appeal, learned counsel has argued that complainant has every right to go to a court and lodge a complaint as laid down in Amar Singh Vs. Balwinder Singh 2003 LawSuit (SC) 127.

The question is not about legal competence of complainant to file a complaint before a court. The question is as to why a victim who allegedly was subjected to criminal intimidation did not got to police since it is not the normal conduct of a victim to seek 8 rescue through police. Though learned trial court did not say it so many express terms a reading of the impugned judgment unmistakably shows that it was only in that context the learned trial court was assessing the facts and nothing more.

19.On a scrutiny of the entire record, I find that evidence on record has not established any of the ingredients required to prove the offence of criminal intimidation and trial court properly concluded saying that accused were not guilty. Appeal filed against the same, suffers from absence of any merits. For the reasons mentioned above, both points are answered against the appellant/complainant.

20.In the result, this appeal fails and is dismissed confirming the judgment

dated 19-3-2013 of learned VIII Special Magistrate, Hyderabad in CC.No.499/2011.

Furnish a free copy of judgment to Complainant/appellant.

Dictated to the Steno Grade-I, transcribed and typed by him, corrected and

pronounced by me in the open court on this the 1st day of May, 2015.

Sd/-V.R.K.K.Sagar,

IV ADDL. METROPOLITAN SESSIONS JUDGE

HYDERABAD

// t.c.f.b.o //

Superintendent

Copy to:- VIII Special Magistrate, Hyderabad (Sending the case records in CC.No.499/2011 of VIII Special Magistrate, Hyderabad on the file of your court along with copy of Judgment in Crl.Appeal no.351/2013 on the file of this court.)

1

IN THE COURT OF THE IV ADDL.METROPOLITAN SESSIONS JUDGE;

AT HYDERABAD.

Present: Dr.Sri.V.Radha Krishna Krupa Sagar, IV Addl.Metropolitan Sessions Judge, Hyderabad.

Dated this the 1st day of May, 2015.

CRIMINAL APPEAL No. 129 / 2013

From what court this appeal is preferred III Addl. Chief Metropolitan Magistrate, Hyderabad.

Number of the case in that CourtC.C.No.1495 of 2008

Number of the appealC.A.No.129 of 2013

Name and description of the Kethavath Baba S/o. Ramulu appellant/accused no.2aged 25 years, Occ: Office boy, R/o. H.No.10-4-771/238, Mahatma GandhiNagar,Masabtank, Hyderabad.

Name and description of the The State rep. By Sub Inspector of respondents;police, PS Banjara Hills, Hyderabad.

The sentence and law under which A1 to A3 were acquitted for the charge conviction was imposed in the lower under section 509 IPC. A1. A3 were found court: not guilty for the charge under section 325 IPC but were found guilty for the offence under section 323 IPC. A1 to A3 were found guilty for the offence under section 448 IPC. A2 (present appellant) was convicted for the offence under section 325 IPC.

Whether confirmed, modified or In the result, the appeal is partly allowed. I find appellant /A2 is not guilty for the Reversed, if modified the Modification: offence Under section 325 IPC, but he is found guilty for the offence under section 323 IPC. He is convicted and sentenced to pay a fine of Rs. 1,000/- and in default to suffer simple imprisonment for a period of three months. It is to be recorded that he has already remitted this part of the fine amount in the trial court. Rigorous imprisonment for one year imposed by learned trial court is set aside. Inspite of all other aspects, the trial court judgment stands confirmed. In the above referred manner to the above referred incident,theimpugnedjudgment

dated 23-1-2013 of learned III Addl. Chief

Metropolitan Magistrate, Hyderabad in C.C.No. 1495 of 2008 stands modified.

2

DATE OF OR ON WHICH

Presentation7-02-2013

Filing8-02-2013

Notice issued by the Court8-2-2013

Bail bond if appellant is let out on bail- - - -

Appellant is ordered to be appear25/3/2013

Hearing17-04-2015

JUDGMENT1-05-2015

This appeal is coming on for hearing before me, upon perusing the petition and record of evidence and proceedings and of appeal and upon duly considering the same after hearing the arguments of M/s.K. Ravi Kishore, Advocate & Associates for Appellant and Learned Addl. P.P., for Respondent and having stood over for consideration till this day this court delivered the following:

:J U D G E M E N T:

1. A convict (A2) for offences under sections 448 and 325 IPC filed this Criminal Appeal U/sec.374(3) (a) of Cr.P.C challenging his conviction and sentence limited to the offence under section 325 IPC and prays for his acquittal.

2. The respondent herein is the State on whose charge sheet A1 to A3 were tried before learned trial court. As against A1 to A3 charges were framed under sections 448, 325 and 509 IPC. After due trial, A1 to A3 were acquitted for the charge under section 509 IPC. A1, A3 were found not guilty for the charge under section 325 IPC but they were found guilty for the offence under section 323 IPC.A2 (present appellant) was convicted for the offence under section 325 IPC. A1 to A3 were found guilty for the offence under section 448

IPC. Various sentences were inflicted against those accused. A1 and A3 were satisfied with the trial court judgment and complied with punishment of fine and 3 remitted fine into the trial court and did not prefer any appeal. While A2 was convicted under section 448 IPC and was sentenced to pay a fine of Rs.1,000/- with default sentence of simple imprisonment for three months and he was further found guilty for the offence under section 325 IPC and was convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of

Rs.1,000/- with a default sentence of simple imprisonment for three months. He filed this appeal questioning his conviction and sentence under section 325 IPC alone.

3.The present appellant (A2) remitted the fine amount before the lower court and preferred an application under section 389(1) Cr.P.C and by virtue of orders in Crl.M.P. No. 120/2013 this court by order dated 12-2- 2013 suspended the execution of substantive sentence and he was released on bail. Therefore, throughout the pendency of this appeal the appellant has been on bail.

4.For the sake of convenience, appellant herein is referred as A2 and the respondent is referred as prosecution/State as was arrayed before the trial court. The Indian Penal Code, 1860 is referred as IPC for the sake of brevity.

5.After due investigation in crime no. 102 of 2008 Sub Inspector of

Police, Banjara Hills Police Station filed charge sheet as against A1 to A3 stating that de facto complainant Sri L. Ramulu is the husband of victim woman Smt. Laxmi. They own a building in which A1 was a tenant. On a particular day, A1 raised an allegation against Smt. Laxmi that her mobile charger was stolen. A quarrel took place between them. A2 is son of A3 and they live in a different house at a different place. In view of the earlier quarrel, it was on 25-8-2008 all the three accused criminally trespassed into 4 the house of land lady Smt. Laxmi and abused her in filthy language and pulled her out of the house and beat her with hands and legs causing injuries on her head, ears, stomach and from her private parts she suffered bleeding. Son of the victim who witnessed the incident took his mother to

Care Hospital and joined her there for medical treatment and informed his father who is Sub-Inspector of Asifnagar PS. On the complaint of said Sub-

Inspector, FIR was registered. Doctor who examined the victim lady found four injuries on her body and found 4th injury grievous in nature while the rest were simple in nature. During the course of investigation, police examined and recorded the statements of witnesses. On 28-1-2008 A1, A2 surrendered before the police and they were forwarded to court for remand.

Thereafter A3 surrendered before the learned trial court and after due completion of investigation, charge sheet was laid.

6.The learned III Addl. Chief Metropolitan Magistrate, Hyderabad took cognizance for the offences under Section 448, 325 and 509 read with 34 IPC. The learned trial court secured the presence of all the accused, furnished them with copies of documents and after hearing both sides, framed charges under section 448, 325 and 509 IPC as against all the accused and the charges were read over and explained to them and all the accused denied the allegations and pleaded not guilty.

7. At the trail, victim lady testified as PW2, her husband who gave complaint to police testified as PW1, their son testified as PW3. Two neighbours testified as PW4 and Pw5. Sub-Inspector who registered FIR testified as PW6. The doctor at Care Hospital testified as PW7. The

Investigating Sub-Inspector testified as PW8. Ex.P.1 to P3 were marked.

8. The incriminating material available on record was offered to the accused U/sec.313 Cr.P.C seeking their explanations. They denied the truth 5 of the entire prosecution evidence. The accused did not adduce any evidence in defence.

9. After hearing arguments on both sides and after scrutiny of the entire evidence on record, learned trial court found that prior to this incident, there were no disputes between accused and prosecution witnesses and on a mere suspicion of theft of a mobile charger all the accused criminally trespassed into the house of land lady and beat her with hands and legs and caused four injuries on her body and learned trial court found that son of victim lady (PW3) and two neighbours PW4 and PW5 witnessed the incident and their testimony is consistent. By virtue of evidence of PW2 and PW7, the doctor, and Ex.P.3 medical certificate, learned trial court found vaginal bleeding for

PW2 which the doctor opined as grievous injury. In those circumstances, it found that all the accused were guilty for criminal trespass under section 448 IPC and found A1 and A3 guilty for the offense under section 323 IPC and found A2 guilty for the offense under section 325 IPC and found all of them not guilty for the offense under section 509 IPC.

10.It is that judgment which is challenged in this appeal, wherein it is stated that there are discrepancies in the evidence of PW1, PW2 and

PW7. PW7, the doctor, admitted that he gave only primary treatment to

PW2 the victim and further treatment was given by a Gynecologist and such facts are not found place in Ex.P.3 wound certificate and the doctor who gave only primary treatment is incompetent to give wound certificate. It is further stated that when a women is menstruating vaginal bleeding is possible and that was admitted by PW7 also. Learned trial court failed to notice all these aspects and for the failure of the accused to explain as to how PW2 suffered injuries, took a different view only as against A2 and learned trial court convicted him for the offence under section 325 IPC and 6 that shall be set aside.

11On behalf of the State/Prosecution, Learned Additional Public

Prosecutor submits that the impugned judgment properly analysed the evidence on record and reached correct conclusions and inflicted appropriate punishment and no interference is needed in this appeal.

12 Learned counsel on both sides submitted their oral arguments.

13 The point that arises for consideration:

1) Whether the evidence on record established the guilt of A2 for the offence U/s. 325 IPC? (2) Whether the impugned judgment suffers from any irregularities on law or fact?

POINTS 1 AND 2 ANSWERED :

14From what is available on record and from what is submitted by learned counsel for appellant and learned Add. Public Prosecutor, the fact that on 25-1-2008 at about 1-30 pm in the house of PW2 the victim woman the crime incident occurred and at that time with a view to commit offence all the three accused including this appellant criminally trespassed into the house is established and is not disputed.

15PW2 is the victim women and she said that all the accused caught hold her hair and beat her and this appellant fisted and kicked on her private parts causing bleeding injuries and she became unconscious.

PW3 was in that house and PW4 and PW5 who are neighbours to that house and all of them said the same fact in one voice. Thus, there is consistent evidence indicating A2 fisting and kicking on the private parts of PW2 which caused bleeding from vagina for PW2. Admittedly no weapons were used. Speaking about the nature of the injury, there is Ex.P.3 wound certificate and the evidence of PW7 the Chief Medical Officer of Care

Hospital. He said that on 25-1-2008 at 5-00 pm he examined PW2 and found abrasion on right ear, contusion on the right side vault and contusions 7 over both hands. According to him, these are simple injuries. Defence has not challenged it. According to PW7 and Ex.P.3 there is one more injury on

PW2 and that is tenderness with guarding (tightness of abdomen) and per vaginal bleeding. That is referred as grievous injury. It is based on that evidence, learned trail court convicted the accused/appellant for an offence under section 325 IPC. It is that which is under challenge now.

16Under the Indian Penal Code injury and hurt are different terms carrying different meanings. Section 44 IPC defines injury and by its terms it could be caused to a person to the body or mind, reputation or property.

Section 319 IPC defines hurt. It says that causing bodily pain or decease or infirmity to the body of another person is hurt. Section 320 IPC defines grievous hurt. As per this provisions there are eight categories of hurt which are designated as grievous. Therefore, if a wound suffered by individual falls within any of those eight categories, it is grievous hurt. If it does not fall within those designated categories, it is only hurt. Section 325 IPC prescribes punishment for causing grievous hurt. Thus from the above references, it is clear that grievous hurt and injury are distinct and different.

It is here the learned trial court committed error as it took the word of the doctor grievous injury and considered that as grievous hurt and convicted the appellant under section 325 IPC. Mere bleeding vagina alone is referred by the Doctor and he did not speak about privation of any member joint or fracture of any bone. According to the Doctor, PW2 was in hospital for treatment only for four days. In such circumstances, that injury does not fall under any of the categories mentioned in Section 320 IPC. Therefore, grievous injury suffered by PW2 is not grievous hurt as denied by IPC. In such circumstances, the grievous injury suffered by PW2 is only hurt as defined in Section 319 IPC and that is punishable only under section 323 IPC.

8

Since the hurt suffered by her is not grievous hurt, charge under section 325

IPC is not made out. Thus, for all those reasons, I find the appellant not guilty for the offence under section 325 IPC, but he is guilty for the offence under section 323 IPC. Earlier A1 and A3 were convicted in the same case for section 323 IPC and they were directed to pay Rs. 1,000/- as fine. In such circumstances, this court finds that a similar punishment for this appellant would meet the ends of justice. Rest of the impugned judgment is right on facts and law, except the aspect which is referred above. Hence, both points are answered accordingly.

17In the result, the appeal is partly allowed. I find appellant /A2 is not guilty for the offence Under section 325 IPC, but he is found guilty for the offence under section 323 IPC. He is convicted and sentenced to pay a fine of Rs. 1,000/- and in default to suffer simple imprisonment for a period of three months. It is to be recorded that he has already remitted this part of the fine amount in the trial court. Rigorous imprisonment for one year imposed by learned trial court is set aside. In respect of all other aspects, the trial court judgment stands confirmed. In the above referred manner to the above referred extent, the impugned judgment dated 23-1-2013 of learned III Addl. Chief Metropolitan Magistrate, Hyderabad in C.C.No. 1495 of 2008 stands modified.

Dictated to the Personal Assistant, transcribed by him, corrected

and pronounced by me in the open court on this the 1st day of May, 2015.

Sd/-V.R.K.K.Sagar,

IV ADDL. METROPOLITAN SESSIONS JUDGE

// t.c.f.b.o // HYDERABAD

Superintendent

Copy to:- III Addl. Chief Metropolitan Magistrate, Hyderabad (Sending the case records in CC.No.1495/2008 of III Addl. Chief Metropolitan Magistrate, Hyderabad on the file of your court along with copy of Judgment in Crl.Appeal no.129/2013 on the file of this court.)

1

IN THE COURT OF THE IV ADDL. METROPOLITAN SESSIONS JUDGE;

HYDERABAD.

Present: Dr.Sri.V. Radha Krishna Krupa Sagar, IV Addl. Metropolitan Sessions Judge, Hyderabad.

Dated this the 27th day of April, 2015

CRIMINAL APPEAL No. 783 OF 2012

From what court this appeal is preferred VI Special Magistrate, Hyderabad

Number of the case in that CourtC.C.NO. 524 of 2011

Number of the appealC.A.No. 783 of 2012

Name and description of the M. Dhanunjaya Reddy, S/o. M. Bhiksham accused/appellantReddy, R/o. H.No.9-6-53/1/1 (Old), 9-6-123 (New), Durga Bhavani Nagar, Champapet, Hyderabad.

Name and description of the 1. Katari Pandu, S/o. K. Mutyalu, aged complainant/respondent:about 48 years, occ; Business, R/o. 9-9- 12/4/17,Reddycolony,Champapet, Hyderabad.

2. The State of A.P. Through P.S. Kanchanbagh, Hyderabad.

The sentence and law under which The accused is found guilty U/s.138 N.I. Act conviction was imposed in the lower courtand he is convicted u/s.255 (2) Cr.P.C., and sentenced to under go RI for a period of one year and shall pay compensation of Rs.90,000/- u/s.357(3) Cr.P.C., in default of payment of compensation, RI for a period of six months.

Whether confirmed, modified or In the result, this appeal fails and is dismissed Reversed, if modified the Modification:confirming guilt, conviction and sentence imposed against the accused on 3-8-2012 by learned VI Special Magistrate, Hyderabad in C.C.No. 524 of 2011. Furnish a free copy of judgment to Appellant/Accused.

DATE OR ON WHICH

Presentation23-8-2012

Filing24-8-2012

Notice issued by the Court24-8-2012

Bail bond if appellant is let out on bail- - - - -

Appellant is ordered to be appear27-11-2012

Hearing15-4-2015

JUDGEMENT27-4-2015

2

This appeal is coming on for hearing before me, upon perusing the petition, record and proceedings and upon duly considering the same after hearing the arguments of Sri G.Srinu, Advocate for the appellant/accused and Sri B.Pandu Ranga Rao, Advocate appearing for respondent/complainant and having stood over for consideration till this day this court delivered the following:

: J U D G E M E N T:

1.A convict for an offence Under Section 138 of Negotiable Instruments Act filed this Criminal Appeal Under Section 374(3) Cr.P.C seeking to set aside the judgment dated:3-8-2012 of learned VI Special Magistrate, Hyderabad in C.C.No.524 of 2011 and prays for his acquittal.

2.Respondent herein was the complainant on whose prosecution learned trial court found the appellant/accused guilty for an offence under section 138 of

Negotiable Instruments Act and by the impugned judgment convicted and sentenced him to undergo rigorous imprisonment for a period of one year and to pay compensation of Rs.90,000/- within 30 days from the date of judgment and in default to pay compensation, the accused has to undergo rigorous imprisonment for a period of six months.

3.Appellant filed Crl.M.P.No. 478/2012 before this court and this court in terms of section.389 (1) Cr.P.C suspended the execution of sentence and the appellant/accused was released on bail. Therefore throughout the pendency of this appeal, the appellant has been on bail.

4.For the sake of convenience appellant is referred as accused and respondent is referred as complainant as they were arrayed before the learned trial court. The Negotiable Instruments Act, 1881 is referred as N.I.Act for the sake of brevity.

5.On 11-4-2011 complainant filed a private complaint before the learned trial court stating that accused is his close friend and he was in financial needs and therefore approached him and borrowed Rs. 90,000/- from him. Accused promised to repay it within two months. However, he failed to repay it and after several demands for repayment, he issued a post dated cheque for Rs.90,000/- drawn on Deccan

Cooperative Urban Bank, Saidabad branch, Hyderabad towards discharge of liability.

3

On presentation of it for collection it was returned unpaid for "insuffiency of funds" in the account of the accused. On 10-3-2011 complainant got issued statutory notice which the accused received but failed to pay the cheque amount. With these allegations, he seeks prosecution and punishment of the accused for the offence under section 138 of

N.I.Act.

6.Learned trial court took cognizance for the offence under Section 138 of

N.I.Act, secured the presence of accused and furnished him with copies of documents and examined him Under section 251 Cr.P.C., for the offence under section 138 of

N.I.Act. The accused denied the allegations and pleaded not guilty and did not indicate any additional facts and did not indicate any specific line of defence.

7.At the trial, complainant testified as PW1 and got marked Ex.P.1 to P5.

8.The incriminating material available on record was offered to the accused under section 313 Cr.P.C seeking his explanations. He denied the truth of the evidence.

9.After hearing the arguments on both sides and after scrutiny of the entire evidence on record, learned trial court found as per evidence of PW1 he lent money to the accused and that Ex.P5 is reply notice given by accused which contains the contents admitting the debt. From the evidence of PW1, it observed towards repayment of that debt, accused issued Ex.P.1 cheque. At the trial, accused contended that he did not owe any money and he stood as a guarantor to Mr. Venkat Reddy in a chit fund transaction with the complainant and it is in that connection this cheque was given to the complainant by the accused as security and even after Mr. Venkat Reddy paid the complete amounts and even after complainant issued no due certificate, he maliciously utilised this cheque and filed this false case. Learned trial court observed that contention of the accused was contrary to his contention raised in Ex.P.5 reply notice.

Finally it found that the accused issued cheque only towards repayment of debt. For those reasons, it found him guilty for the offence under section 138 of N.I.Act and convicted and sentenced him as indicated earlier.

10.It is that judgment which is challenged in this appeal stating that the complainant failed to prove his relationship with the accused and failed to prove that 4 subject matter cheque was issued towards discharge of a debt and the evidence of

PW1 is self contradictory and his falsity was exposed in the cross examination. Learned trial court failed to appreciate the evidence and rendered a judgment against the probabilities of the case. The sentence imposed is excessive. No documents are filed indicating the debt. For all those reasons, he prays to upset the impugned judgment.

11.For respondent/complainant, learned counsel submitted that learned trial court properly appreciated the evidence and reached to proper conclusions and there is no warrant to interfer with it.

12.While appeal was coming for hearing, appellant/accused obtained numerous adjournments for submitting arguments and finally failed to submit any arguments. Learned counsel for complainant submitted oral arguments.

13. From what is stated above, the following points emerge for consideration:

1)Whether Ex.P1 cheque brings penal consequences under section 138 of N.I.Act?

2) Whether the impugned judgment suffers from errors on fact or law?

POINTS 1 AND 2 ANSWERED:

14.In his evidence PW1 said that he runs a Kirana Store and accused is

Building contractor and a design maker. He said that one Mr.Venkat Reddy is brother-in- law of accused and through him accused is known to him. PW1 said that to meet his financial needs, accused borrowed Rs.90,000/- and thereafter towards repayment of it gave Ex.P1 cheque. On its presentation, it was dishonoured for insufficiency of funds in the account of accused. Ex.P.2, P3 are cheque return memos which indicate on two occasions the cheque was dishonoured for the same reason of insufficiency of funds in the account of accused. PW1 said that he got issued Ex.P.4 notice demanding repayment within 15 days from the date of receipt of it. He said that accused issued

Ex.P.5 reply notice dated 15-3-2011.

15.Ex.P.1 cheque on its face indicate that it was drawn on 21-2-2011 for

Rs.90,000/- payable to complainant and is purportedly signed by accused. As per 5

Ex.P.2, P3 it was not dishonoured for the reason of signature not tallying with account holder/accused. It was dishonoured for insufficiency of funds in the account of accused.

Throughout trial accused has not denied his signature on this cheque and it is not his contention that it was not drawn on an account maintained by him with the bank.

16.As per Ex.P5 reply notice and as could be seen from cross examination of

PW1, accused admits that he gave this cheque to the complainant. By his sworn evidence PW1 discharged his initial burden that accused owed Rs.90,000/- from him and by Ex.P.1 he established that accused issued it towards repayment. In these circumstances, presumption under section 139 of N.I.Act arises and it is presumed that accused had given this cheque towards discharge of legally enforceable debt. Accused is entitled to rebut it.

17.In rebuttal, accused did not adduce any evidence. When examined under section 251 Cr.P.C and thereafter Under section 313 Cr.p.C accused did not offer any explanations against any fact stated by complainant. His first reaction to the case of the complainant is by way of Ex.P.5 reply notice. As per this notice, he admits borrowing the money and he stated that he repaid Rs. 5,000/- and then he gave him this cheque as security. As per Ex.P.5, it was not a blank cheque. In his reply notice, he prayed time for 3 to 6 months for repayment of debt and requested the complainant not to proceed further. As per Ex.P.5, it is clear that accused owed money and issued the cheque.

Thus, the entire case set up by complainant is virtually admitted by accused under

Ex.P.5. In such circumstances, the contention of the accused that the complainant failed to disclose the date of debt is immaterial. At the trial, it was suggested to PW1 that accused did not borrow money but stood as security for his brother-in-law Mr.

Venkat Reddy in connection with a chit fund transaction.PW1 denied that theory.

Therefore, it is for accused to bring material on record to prove probabilities of his defence. Accused did not bring his own brother-in-law Mr. Venkat Reddy to speak about such alleged chit fund transaction etc., Accused himself did not testify in support of his defence. Thus accused did nothing in probablising his defence. In fact, the stand he took while cross examining PW1 is opposite to the stand he took under Ex.P.5 reply 6 notice. Such oscillation on part of the accused makes him a person not credible. In the grounds of appeal, it is mentioned that while cross-examining PW1 his falsity is exposed. Such a tall statement has no basis since a perusal of cross examination of

PW1 shows nothing was elicited which is beneficial for accused. It shows no fact bearing on the credibility of PW1. Looking at the stand taken by accused that his failure to repay the debt even after several years, I find the sentence imposed is appropriate and not excessive. The trial court properly appreciated the facts and found that Ex.P.1 cheque was given towards discharge of debt only and it properly found that accused failed to repay the amount covered by Ex.P.1 cheque. In these circumstances, Ex.P.1 cheque rightly brings penal consequences under section 138 of N.I.Act and guilt of the accused is fully established. Hence both the points are answered against the appellant/accused.

18.In the result, this appeal fails and is dismissed confirming guilt, conviction and sentence imposed against the accused on 3-8-2012 by learned VI Special

Magistrate, Hyderabad in C.C.No. 524 of 2011. Furnish a free copy of judgment to

appellant/accused.

Dictated to Steno Grade-I, transcribed and typed by him, corrected

and pronounced by me in the open court this the 27th day of April, 2015.

Sd/-V.R.K.K.Sagar,

IV ADDL.METROPOLITAN SESSSIONS JUDGE,

HYDERABAD.

// T.C.F.B.O.//

Superintendent

Copy to:- The VI Special Magistrate, Hyderabad (Sending the case records in C.C.No.524/2011along with copy of order in Crl.A.P.No.783/2012 on the file of this Court)

1

IN THE COURT OF THE IV ADDL. METROPOLITAN SESSIONS JUDGE:

AT HYDERABAD

PRESENT :Dr.V.Radha Krishna Krupa Sagar, IV Addl. Metropolitan Sessions Judge, Hyderabad.

Dated This the 1ST day of MAY, 2015.

Crl. Revision Petition No. 89 /2015

In (Crl.MP.No.1613/2015) In (CC.No.305/2014 of XIII Addl. CMM, Hyderabad) Between:

Sachin Kumar Singh Thakur, W/o.Late Pratap Singh, Aged 30 years, Occ: Pvt. Employee, R/o.H.No.23-6-852/12, Shalibanda, Hyderabad. … Petitioner / Accused No.1

And

State of Telangana through PS : WPS, CCS, Hyderabad. … Respondent/Complainant

This Revision Petition is filed U/S.397 Cr.P.C. praying that for the reasons stated therein to set aside the order dated 10-04-2015 in

Crl.MP.No.1613/2015 of XIII Addl. Chief Metropolitan Magistrate, Hyderabad

as per law in the interest of justice.

This petition is coming up for hearing on 30-04-2015

before me in the presence of and upon hearing the arguments of

M/s. D. Vijaya Kumar & Others, Advocates for Revision Petitioner/Accused-1 and learned Addl. Public Prosecutor for the State and having stood over for consideration till this day this court delivered the following:

:: O R D E R ::

1.An accused filed this criminal Revision Petition under

Section 397 Cr.PC seeking to modify order dated : 10.04.2015 of learned

XIII Addl. Chief Metropolitan Magistrate, Hyderabad in Crl.MP No.1613/2015 in CC No.305 of 2014 and seeks for relaxation of certain conditions.

2.Respondent herein is the state and learned Addl. Public

Prosecutor made submissions.

3.Learned counsel on both sides submitted oral arguments.

2

4.From the material on record and from the submissions on both sides the following point emerges for consideration.

Whether the impugned order suffers from any illegality or irregularity or impropriety ?

POINT ANSWERED:

5.The following facts are not in dispute. Revision Petitioner is A1 and her Mother is A2 in CC No.305 of 2014. The trial of that case is pending

before learned XIII Addl. Chief Metropolitan Magistrate, Hyderabad. During

the course of investigation while granting bail to A1 the learned trial court directed her not to leave the Country without prior permission of the court.

About one year after such order A1 filed Crl. MP No.1613 of 2015 before the learned trial court seeking permission to go to USA for a period of two months to attend graduation ceremony of her sister-in-law by escorting her old aged mother (A2). After hearing both sides learned trial court allow the petition imposing the following conditions:

“ …... The petitioner/A1 is permitted to visit USA for a period of two months from 08.05.2015 to 15.06.2015 on her executing a personal bond for Rs.2,00,000/- with two sureties for a like sum each to the satisfaction of this court. She shall furnish her permanent / temporary addresses as well as her e-mail ID and telephone number for communication during her stay at abroad along with Memo. The petitioner/A1 with an undertaking to appear before this court in the event of exigencies as and when directed by this court. Failing to comply the above directions, the surety amount will be forfeited and paid to victim as compensation. Address a letter to the immigration officials accordingly.”

6.The present Revision is filed stating that Rs.2,00,000/- is a very big amount and petitioner has no financial capacity to comply with such harsh condition and the said condition is virtually curtailing the personal 3 liberty of petitioner and the trial court fail to give reason to impose such heavy amount of money. Therefore petitioner seeks reduction of it. Learned

Addl. Public Prosecutor submits that in the best interest of the case this court make a decision as it thinks just.

7.Having consider the entire record and the fact that the petitioner is a woman and is permanently employed in HSBC Bank at Hyderabad with permanent residence learned trial court allowed her to leave the Country for a limited period. The financial position of petitioner is a relevant factor for consideration while imposing terms and conditions. According to learned counsel the petitioner being not very rich is unable to meet the condition. In view of these submissions I find the condition imposed appears very onerous and is therefore irregular requiring interference. Rs.2,00,000/- imposed by the trial court for bonds is reduced to Rs.25,000/-. Rest of the terms stand intact. Hence point is answered accordingly.

8.In the result, this Crl. Revision Petition is allowed modifying the impugned order. Rs.2,00,000/- imposed by the trial court for bonds is reduced to Rs.25,000/-. Rest of the terms imposed by the trial court stand intact. To the extent mentioned above order dated : 10.04.2015 in Crl. MP

No.1613 of 2015 in CC No.305 of 2014 of learned XIII Addl. Chief

Metropolitan Magistrate, Hyderabad stands modified.

Dictated to G. Prasad, Typist, typed, corrected and pronounced

by me in the open court this the 1ST day of May, 2015.

Sd/-V.R.K.K.Sagar,

IV ADDL.METROPOLITAN SESSIONS JUDGE

HYDERABAD

// T.C.F.B.O.//

Superintendent

Copy to:- The XIII Addl Chief Metropolitan Magistrate, Hyderabad (Sending the case records in C.C.No.305 /2014 along with copy of order in Crl.R.P.No.89/2015 on the file of this Court)