Smt.radhika Nettem

C.C.No. 134 / 2015 DT:29-04-2019

IN THE COURT OF SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS FOR TRIAL OF

CASES UNDER A.P. PROHIBITION AND EXCISE ACT-CUM-III ADDITIONAL JUNIOR CIVIL

JUDGE, AT VIZIANAGARAM

(Monday, this the 29th day of April, 2019)

Present: Smt.N.Radhika, Spl. Judl. Magistrate of First Class for trial of cases under A.P. Prohibition and Excise Act-Cum-III Addl. Junior Civil Judge Vizianagaram.

CALENDER CASE No. 134/2015

BETWEEN:

Kanakala Giri Kumar, S/o. Appala Naidu, Hindu, Aged about 35 years, resident of East Balaji street, Vizianagaram.

…COMPLAINANT. AND:

Palla Srinivasa Rao, S/o. Suryanarayana, Hindu, Aged about 30 years, Business, Resident of Jarajapu veedhi, Near Kalla Naidu Mandiram, Vizianagaram.

…ACCUSED

This case is coming before me on 25-04-.2019 for final hearing in the presence of Sri K. Srihari Sharma, learned counsel for the Complainant and Sri G. Tirupathi Rao, learned counsel for theAdvocate for the Accused upon hearing both sides, considering the material available on record and the matter having stood over for consideration till this day, this court delivered the following:-

-:JUDGMENT:-

1.This is a complaint filed by the Complainant under Section 138 of

Negotiable Instrument Act, 1981 (herein after refer to as N.I.Act for the sake of brevity and convenience) against the Accused herein for the following allegations: 1 OF 15

C.C.No. 134 / 2015 DT:29-04-2019

2. The Complainant is well known to the Accused. On such acquaintance, on 5-8-2014 the Accused borrowed an amount of Rs. 6,00,000/- from the Complainant for his family necessities and the Accused executed a promissory note for the said amount and agreed to repay the same either to the Complainant or to his order on demand.

The Complainant demanded the Accused several times for repayment of the said loan amount, for which, the Accused issued a Cheque bearing No. 490779, dated: 5-10-2014 for Rs. 3,00,000/- (Rupees Three Lakhs only) drawn on State Bank of India, M.G.Road,

Vizianagaram towards part satisfaction of the said debt amount.

2.1It is further case of the Complainant that he presented the said cheque in his bank account through Syndicate Bank, Vizianagaram, but the said cheque was returned unpaid through cheque return Memo dated: 6-11-2014 due to “funds insufficient” in the account of the Accused.

2.2It is the further case of the Complainant that he got issued a registered lawyer notice on 15-11-2014 to the Accused i.e. within 30 days after receipt of the information from the Bank and the same was returned with an endorsement as intimation served. After awaiting statutory period, the Complainant filed this complaint praying this Court to punish the Accused.

3. On receipt of Complaint, the Additional Judicial Magistrate of the First

Class, Vizianagaram took the case into Cognizance for the offence under Section 138 of N.I. Act 1881 punishable under Section 142 of N.I.Act against the Accused and 2 OF 15

C.C.No. 134 / 2015 DT:29-04-2019 assigned C.C.No. 43/2015. Having received the summons, the Accused made his appearance and at that stage, this case was made over to this Court from the Court of

Additional Judicial Magistrate of the Firs Class, Vizianagaram as per the directions of

the Hon’ble District Court, Vizianagaram in order P.R.No. 58/2015-A, dated: 27-3-2015 for disposal according to law and assigned C.C.No. 134/2015.

4. The copies of the case documents are furnished to the Accused as contemplated Under Section 207 of Code of Criminal Procedure, and he was examined

Under Section 251 Cr.P.C. The substance of accusation for the offence Under Sec 138 of N.I. Act was read over and and explained to him in Telugu for which he denied and claimed to be tried.

5. During the trial, the Complainant himself examined as PW.1 and got exhibited

Ext.P.1 to P.5. No oral or documentary evidence is adduced by the Accused.

6. After closure of the prosecution evidence let in by the Complainant, the

Accused was examined under section 313 Cr.P.C. by explaining the incriminating material found against him in the evidence of Complainant witnesses, for which the plea of the Accused is one of the total denial and reported for evidence, but subsequently,the Accused reported no evidence on his behalf and hence his evidence is closed.

7. Heard learned counsel for the Complainant and learned counsel for the

Accused. 3 OF 15

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8. Now the point arise for my determination is, Whether the Complainant has proved the guilt of the Accused for the offence under Section 138 ofN.I.Act, 1881 beyond all reasonable doubt?

9. POINT:

In order to determine the above said point, PW.1 has to prove the following ingredients.

i) Whether PW.1 presented Ext.P.2 Cheque to the Bank within

stipulated period as required under Section 138(a) of N.I.Act?

ii) Whether PW.1 got issued Ext.P.4 legal notice within stipulated period

to the Accused for dishnour of Ext.P.2/Cheque as required under

Section 138(b) of N.I.Act, if so, whether the same was served upon

the Accused?

iii) Whether the Return endorsement made by the Bank Authorities would attract Section 138 of N.I.Act?

iv) Whether Ext.P.2 Cheque was issued towards legally enforceable debt?

10.Ingredient No.(i):

i) Whether PW.1 presented Ext.P.2/Cheque to the Bank within

stipulated period as required under Section 138(a) of N.I.Act?

10.1It is the case of PW.1 that the Accused issued Ext.P.2 Cheque on 5-10-2014 and PW.1 presented the same in his banker i.e. Syndicate Bank, Vizinagaram for collection . On perusal of Ext.P.3 cheque return Memo, it is clear that Ext.P.2 Cheque was dishonoured on the ground “funds insufficient,” but not on the ground that

Ext.P.2 Cheque was presented beyond the period of limitation.

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C.C.No. 134 / 2015 DT:29-04-2019 10.2 From the entire cross examination of PW.1, it is not the case of the Accused that PW.1 did not present Ext.P.2 cheque in his banker. Further in the entire cross examination of PW.1, even there is no suggestion that PW.1 did not present Ext.P.2 cheque within the time stipulated . Hence, this Court is of the considered opinion that

PW.1 has presented Ext.P.1 cheque with his banker within the time stipulated as required under Section 138(a) of N.I.Act, 1881. Accordingly, this ingredient is answered infavour of the Complainant and against the Accused.

11. Ingredient No.(ii):

ii) Whether PW.1 got issued Ext.P.4 legal notice within stipulated period to the Accused for dishonour of Ext.P.2/Cheque as required under

Section 138(b) of N.I.Act, if so, whether the same was served upon

the Accused?

11.1PW.1 deposed that on 6-11-2014 he received information about dishonour of cheque from his banker and he got issued Ext.P.4 legal notice on 15-11-2014.

According to Section 138(b) of N.I.Act, the legal notice is to be issued to the Accused within thirty (30) days from the date of dishonour of Cheque from the bank. In this case on hand, a perusal of Ext.P.4/Legal notice and Ext.P.5/Returned postal cover, it is evident that PW.1 got issued Ext.P.4/Legal notice to the Accused within nine (9) days from the receipt of information from the bank about the dishonour of Ext.P.2 cheque.

11.2It is the contention of the learned counsel for the Complainant, the address mentioned in the Returned postal cover and on the summons of Accused are one and the same, the Accused received summons, but got returned the legal notice and as such Ext.P.4/Legal notice is deemed to have been served on the Accused.

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C.C.No. 134 / 2015 DT:29-04-2019 11.3It is the contention of the learned counsel for the Accused that the Accused did not receive any notice and he did not return any legal notice.

11.4A perusal of postal address, mentioned on Ext.P.5/Returned postal cover and address mentioned on Court summons are one and the same. The record discloses that the Accused received Court summons. In the entire cross examination of PW.1, there is no dispute about the address mentioned on Ext.P.5/Returned postal cover is not correct and the address mentioned in the postal cover and the address mentioned on Court summons are not one and the same. A perusal of Ext.P.5/Returned postal cover disclosed that it was returned with an endorsement as not claimed which is a deemed service.

11.5According to Section 27 of General Clauses Act, 1897, “if any notice is sent to the person by way of Registered Post with Acknowledgement due with correct address and it is returned on any ground, it is a deemed service of the notice unless the contrary is proved”. Since the Accused is not disputing the addresses mentioned in

Ext.P.4/Legal notice and on Ext.P.5/Returned postal cover, it is deemed that

Ext.P.4/Legal Noticee was served on him. In view of the above discussion, this Court is of the considered opinion that PW.1 got issued Ext.P.4/Legal notice within the stipulated period of limitation as provided under Section 138 (b) of N.I.Act and the same was deemed to have been served on the Accused under Ext.P.5. Accordingly, this ingredient is answered infavour of the Complainant and against the Accused.

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12.Ingredient No.(iii):

iii) Whether the Return endorsement made by the Bank Authorities would attract Section 138 of N.I.Act?

12.1As per the evidence of PW.1, Ext.P.2/Cheque was dishonoured with an endorsement “funds insufficient” . It is not the case of Accused that as on the date of presentation of Ext.P.2 Cheque by PW.1, he has sufficient funds in his account. Further, the Accused did not make even any suggestion that he has sufficient funds in his bank account. From the evidence of PW.1, coupled with Ext.P.3/Cheque return Memo, it is clear that the Bank Authorities returned Ext.P.2/Cheque for the reason “funds insufficient” in the account of the Accused. According to Section 148 of N.I.Act, 1881, production of bank slip or Memo having thereon, the official mark denoting that the cheque has been dishonoured, the bank slip or Memo is prima-facie evidence and the

Court shall presume that cheque has been dishonoured. However, the said presumption is rebuttal presumption. In the case on hand, the Accused did not produce any cogent and convincing evidence before this Court stating that he has sufficient funds in his Bank account at the time of presentation of Ext.P.2/Cheque. On the other hand, PW.1 has proved that Ext.P.2/Cheque has been dishonoured due to “funds insufficient” in the bank account of the Accused by exhibiting Ext.P.3/Cheque return memo. Section 138 of N.I.Act clearly stipulates that any cheque has been returned by the bank unpaid because of the amount standing in the credit of that account is insufficient to honour the cheque, it would attract Section 138 of N.I.Act.

Hence, this Court is of considered opinion that the endorsement made by Bank authorities on Ext.P.3/Cheque return memo would attract Section 138 of N.I.Act.

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Accordingly, this ingredient is answered infavour of the Complainant and against the

Accused.

13.Ingredient No.(iv):

iv) Whether Ext.P.2 Cheque was issued towards legally enforceable debt?

13.1PW.1 deposed that the Accused borrowed an amount of Rs. 6,00,000/- on 5-8-2014 under Ext.P.1 promissory note. As per the cross examination of PW.1, it is the case of Accused that PW.1 shown a false hope to the Accused that he will enable PW.1 to get a loan from 3rd party and obtained signed blank promissory note and signed blank cheque under Ext.P.1 and Ext.P.2 respectively towards security.

13.2In the cross examination, PW.1 deposed that he is a practicing Advocate at

Vizianagaram and he has lent Rs.6,00,000/- in cash to the Accused as debt on 5-8-2014.

PW.1 further deposed that he is not an income tax assessee and he knows the Accused since his child-hood. PW.1 further deposed that along with the Accused one

Shivakumar who is the scribe of Ext.P.1 promissory note and one G. Pushpa Kumar who acted as attester were also present when he gave the money. PW.1 denied suggestion that he has shown a false hope to the Accused that he will enable him to get loan from 3rd party and obtained the said signed blank promissory note under Ext.P.1 and singed blank cheque under Ext.P.2. PW.1 further denied suggestion that he never lent amount to the Accused and that he misused the cheque which was given to him by the

Accused for security and that he filed a false case against the Accused with all false allegations.

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C.C.No. 134 / 2015 DT:29-04-2019 13.3 It is the contention of the learned counsel for the Complainant that the

Accused has admitted his signature on Ext.P.1/Promissory note and Ext.P.2/Cheque and the Court can presume that Ext.P.2/Cheque was issued for legally enforceable debt due under Ext.P.1/promissory note.

13.4It is the contention of the learned counsel for the Accused that PW.1 has made the Accused to believe that PW.1 will enable the Accused to get a loan from 3rd party and obtained blank promissory note and cheque from the Accused towards security and that Accused never borrowed any amount from PW.1. The learned counsel for the Accused further submitted that in order to get wrongful gain from the

Accused, PW.1 filed this case.

13.5From the entire cross examination of PW.1, it is the specific case of the

Accused that PW.1 shown him a false hope that he will enable the Accused to get loan from 3rd party and obtained singed blank promissory note and cheque. From the entire cross examination of PW.1, it is not the case of Accused that the signatures on

Ext.P.1/promissory note and Ext.P.2/cheque are not that of his signatures.

13.6.When once signature on a Negotiable Instrument is admitted, there arises a presumption under Section 118(a) and Section 139 of N.I.Act that the said instrument had been made or drawn for consideration. Under Section 139 of N.I.Act, the Court has to presume, unless the contrary was proved that the holder of cheque received the same for discharge of, in whole or part, of any debt or other liability. 9 OF 15

C.C.No. 134 / 2015 DT:29-04-2019

Thus, in compliance of Section 138 of N.I.Act, the Court has to presume that cheque had been issued towards discharge of debt or liability. This presumption is a rebuttal presumption though the burden to rebut the presumption on the Accused is not as high as that of the presumption of burden of proof, that a cheque had been issued for debt or liability is on the Accused. In this case on hand, except cross examining PW.1, the Accused did not produce any cogent material before this Court to disbelieve the version of PW.1.

13.7Even assuming for a moment for the sake of argument, that PW.1 shown a false hope to the Accused that PW.1 will enable the Accused to get a loan from 3rd party and obtained signed blank cheque and the promissory note, but the

Accused did not elicit any favorable answer from PW.1 to support his contention and also when PW.1 enabled the Accused to get loan amount, whether the Accused got loan through PW.1, if so, what is the quantum of loan amount, from whom PW.1 enabled the Accused to get loan and whether subsequently the Accused cleared off the loan amount. The Accused may contend that though PW.1 obtained blank signed promissory note and cheque, PW.1 did not enable the Accused to get loan amount and subsequently, PW.1 did not return the same.

13.8 If the above said version of the Accused that PW.1 obtained blank signed cheque and promissory note, towards the security to enable the Accused to obtain loan is true, he would have taken steps like issuance of legal notice or lodging of complaint against the Accused to get back the blank signed promissory note and cheque said to have been obtained by PW.1 from him. Further, there is no explanation 10 OF 15

C.C.No. 134 / 2015 DT:29-04-2019 from the Accused for not taking any steps even after filing of this Complaint. Even if it is not the case of the Accused, that he issued legal notice to PW.1 demanding him to return the alleged blank signed cheque and promissory note. If the above said version of Accused is true, he would have got issued legal notice to PW.1 demanding him to return the blank signed promissory note and cheque. Hence, the contention of the

Accused that PW.1 obtained blank signed promissory note and cheque towards security in order to enable the Accused to get loan from the 3rd party is not believable and not acceptable.

13.9At this juncture, this Court came across the Judgment of Hon’ble High

Court of A.P. in B. Raghunandhan Reddy Vs. V. Rajasekhar Reddy 1 , wherein it was held that:

“ when once the Accused admitted his signature on pronote and cheque, the burden lies on him to show that the cheque in question has not been issued towards the legally enforceable debt”.

13.10 In this case on hand, there is no dispute about the signature of the

Accused on Ext.P.1/Promissory note and Ext.P.2/Cheque. Further, it is not in a dispute that Ext.P.2/Cheque does not belong to the Accused. Though the Accused cross examined PW.1 at length, he could not get any favourable answers to substantiate the case of the Accused . Hence, this Court is of the considered opinion that there is no clinching evidence on record to accept the case set-out by the Accused.

12015 (1)ALD (Crl) 861 AP 11 OF 15

C.C.No. 134 / 2015 DT:29-04-2019 13.12In view of the above discussion, this Court is of the considered opinion that the Accused had issued Ext.P.2/Cheque in-favour of the Complainant towards the part payment of the amount due under Ext.P.1/Promissory note. This ingredient is answered accordingly infavour of the Complainant and against the Accused.

14.In view of the forgoing discussion on ingredient Nos 1 to 4, this Court is of considered opinion that the Complainant has proved the guilt of the Accused beyond all reasonable doubt and Accused is liable for punishment for the offence under

Section 138 of Negotiable Instruments Act, 1881. The point is answered accordingly.

15.IN THE RESULT, the Accused is found guilty for the offence under Section 138 of Negotiable Instruments Act, 1881 and accordingly, he is convicted under Section 255(2) Cr.P.C.

Dictated to the Stenographer Grade III, transcribed by him, corrected, signed

and pronounced by me in open Court, this the 29 th day of April, 2019.

Spl. Judl. Magistrate of First Class for trial of cases under A.P. Prohibition and

Excise Act-Cum-III Addl. Junior Civil Judge

Vizianagaram

16. Heard the Accused on quantum of sentence. The Accused pleaded that he has wife, children and old aged mother, recently his father expired and if he is put behind the bars , they will become orphans and prayed the Court to take lenient view.

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C.C.No. 134 / 2015 DT:29-04-2019 16.1 The learned counsel for Accused prayed the Court to show mercy on the

Accused and impose fine instead of imposing sentence.

16.2 The offence proved against the Accused is under Sec.138 of N.I.Act, which is punishable with imprisonment for a term which may extend to two years or with fine which may extend to twice the amount of the cheque or with both.

16.3The learned counsel for the complainant has argued that this Court is having power to award compensation which is equivalent to twice the amount of cheque under Sec.357 (3)of Cr.P.C. On the other hand, the learned counsel for Accused vehemently argued that this Court has no power to award compensation and only power to impose fine upto Rs.10,000-00 only in view of Sec.29 of Cr.P.C.

16.4At this juncture, I came across the judgment of Hon'ble Supreme Court, decided in a case Somnath Sarkar Vs. Utpal Basu Mallick and another 2 , wherein their lordships held that , "Section 138 of N.I.Act does not contemplate grant of compensation and it envisages imposition of fine not exceeding twice the amount of dishonoured cheque and it is from out of this fine amount, the complainant be compensated under Sec.357(3) of Cr.P.C." . Further, it is a settled legal position that a

Special Enactment prevails over the General Law and the Negotiable Instruments Act, 1881 is a Special Enactment.

2.2013 LawSuit (SC)952 =2014 (1) ALT, Crl. 145 SC 13 OF 15

C.C.No. 134 / 2015 DT:29-04-2019 16.5In view of the above Judicial precedent, it is clear that this Court can impose fine up to twice the amount of dis-honoured cheque and in that fine only this

Court has to award compensation to the complainant under Sec.357(3) Cr.P.C. This case is of the year 2015. By considering the submissions made by the Accused and all the above facts into consideration, this Court is of the considered view that sentencing the

Accused to imprisonment for a period of One Year and sentenced to pay a fine of

Rs.4,50,000-00(Rupees Four Lakhs, Fifty Thousand only) would meet the ends of justice. Accordingly, the Accused is sentenced to undergo Rigorous Imprisonment for a period of One Year and to pay fine of Rs.4,50,000-00(Rupees Four Lakhs, Fifty

Thousand only) in default, the Accused shall undergo Simple Imprisonment for three (03) months. Out of the fine amount collected, an amount of Rs.4,40,000-00 (Rupees

Four Lakhs, Forty Thousand only) shall be paid to the complainant towards compensation under Sec.357(3) Cr.P.C., after appeal time is elapsed. The remaining amount of Rs.10,000/- (Rupees Ten Thousand only) shall be paid to the State to defray expenses incurred in the prosecution, after expiry of appeal time.

16.6 The period of detention already undergone by the Accused (NIL) shall be set off under Section 428 of Cr.P.C. The Accused was informed about his right to prefer appeal against the conviction and sentence of this court.

( Typed to my dictation, Corrected, Signed and pronounced by me in the Open Court on this the 29 th day of April, 2019).

Sd/- N.Radhika

Spl. Judl. Magistrate of First Class

for trial of cases under A.P. Prohibition and

Excise Act-Cum-III Addl. Junior Civil Judge

Vizianagaram

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APPENDIX OF EVIDENCE

WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT

PW.1K. Giri Kumar Complainant.

WITNESS EXAMINED OF BEHALF OF THE ACCUSED

-NIL-

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT

Ext.P1Original Promissory Note for 5-8-2014 Rs.6,00,000/-

Ext.P2Cheuqe for Rs.3,00,000/-5-10-2014

Ext.P3Cheque return memo6-11-2014

Ext.P.4Office copy of Lawyer Notice15-11-2014

Ext.P.5Returned cover. 19-11-2014

EXHIBITS MARKED ON BEHALF OF THE DEFENCE

-NIL-

MATERIAL OBJECTS MARKED

Sd/- N.Radhika

Spl. Judl. Magistrate of First Class for trial of cases under A.P. Prohibition and

Excise Act-Cum-III Addl. Junior Civil Judge

Vizianagaram 15 OF 15

C.C..No.377/2017 DT:30.04.2019

IN THE COURT OF SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS FOR

TRIAL OF CASES UNDER A.P. PROHIBITION AND EXCISE ACT-CUM-III

ADDITIONAL JUNIOR CIVIL JUDGE, AT VIZIANAGARAM

Present: Smt.N.Radhika Spl. Judl. Magistrate of First Class for trial of cases under A.P. Prohibition and Excise Act-Cum-III Addl. Junior Civil Judge Vizianagaram.

(Tuesday, this the 30th day of April, 2019)

C.C.NO. 377/2017

Between:

The State represented by the sub-Inspector of Police, Pusapatirega Police Station.

…Complainant.

AND:

1. Kornana Appalanaidu,

2. Jakkapu Suresh,

3. Pitta Ramana.…Accused.

This case coming before me on this day for final hearing in the presence ofSmt. M.Madhavi, learned Assistant Public Prosecutor for the Complainant/State and of Sri S. Haribabu, learned Counsel for the Accused, upon perusing the material papers on record, on hearing both sides 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 of illegal lifting and transportation of sand filed by

Sub-Inspector of Police, Pusapatirega P.S against the above noted

Accused Nos. 1 to 3 for the offences U/sec.447 and 379 of I.P.C, in 1 of 13

C.C..No.377/2017 DT:30.04.2019

Cr.No. 127 of 2016 with a prayer to punish the Accused for the alleged offence.

2.Brief averments of the charge sheet are as follows:- 2.1On 22-8-2016 at 10.30 hrs., PW.6/G.Kaladhar, S.I of Police,

Pusapatirega Police station, on receipt of information regarding illegal lifting and transportation of sand, conducted raid along with PW.5 and

LW.7/J. Rajesh, PC:1654 of Pusapatirega Police station and seized three

Tractors and Trailers from the scene of offence under Occurrence report as A.1 to A.3 escaped from the scene of offence by leaving the

Tractors and registered the same as a case in C rime no. 127/2016 under Section 447 and 379 of IPC and investigated into.

2.2During the course of investigation, on 23-8-2016, A1 to A.3 visited the police station and admitted their guilty of offence and that

PW.6 got drafted the confession report of A.1 to A.3 in the presence of

PWs 3 and 4 and served 41-A notice to the Accused. PW.6 examined the original owners of the Tractor and trailers of A.1 to A.3 as PW.1,

PW.2 and LW.3/P. Suryaprakash established the ownership of the

Tractors and after completion of the Investigation, PW.6 filed the charge sheet.

3.On receipt of the Charge sheet, the learned Additional

Judicial Magistrate of the First Class, Vizianagaram has taken this case

on file for the offences punishable under sections 447 and 379 of IPC 2 of 13

C.C..No.377/2017 DT:30.04.2019 against the Accused. Copies of case records as required U/s. 207

Cr.P.C., have been supplied to the Accused.

4. At the time of framing of charges, this case was transferred from the Court of the Additional Judicial Magistrate of the First Class,

Vizianagaram to the Court of Judicial First Class Magistrate (Special

Mobile), Vizianagaram. Accused Nos. 1 to 3 were examined U/s. 239

Cr.P.C., by explaining the substance of the accusation constituting the offences punishable U/s. 447 and 379 of IPC, they pleaded not guilty and claimed to be tried. Accordingly, charges are framed for the offences u/sec.447 and 379 of I.P.C. When the matter was at the stage of part heard trail, the case record was transferred to this court, from the file of JFCM, Special Mobile Court, Vizianagaram, as per the orders of the Hon’ble District Court, Vizianagaram, vide proceedings order

P.R.No.151/2018-A, dated 8.10.2018, communicated in Dis.No.4527 Dt; 8.10.2018.

5. During the trial, the prosecution got examined P.Ws 1 to 6 and got exhibited Exs.P.1 to P.4. The learned APP given up the evidence of LW.7/J.Rajesh (PC:1654)of Pusapatirega Police station. The evidence of LW.3/P.Suryaprakesh is closed basing on the report field by the prosecution stating that his whereabouts are not known.

6.After completion of prosecution side evidence, Accused Nos 1 to 3 are examined under Sec.313 Cr.P.C, explaining them the incriminating material appearing in the testimonies of P.Ws 1 to 6. The 3 of 13

C.C..No.377/2017 DT:30.04.2019

Accused Nos 1 to 3 denied the same and reported to have no defence evidence.

7.Heard arguments of both sides. Perused the record.

8.According to the case of prosecution PW.6 is the

Investigation Officer, who detected the offence and P.W.5 is the

Constable, who assisted the Investigation Officer/P.W.5. PWs 3 and 4 are the mediators. PWs 1 and 2 are the original owners of the Tractor

Bearing No. AP 35 V 7524 and Trail bearing nO. AP. 35 V 7527 respectively. The testimonies of Pws.1 to 6 are very much available in the form of depositions and the same are not reproduced here to avoid repetition.

9.Now the Point germane for my determination is:-

"Whether the prosecution has proved and

established guilt of the Accused Nos 1 to 3 for the

offences punishable section 447 and 379 of IPC

beyond reasonable doubt ?"

10.POINT:

10.1In order to convict the Accused Nos 1 to 3 for the offences punishable U/sec 447 and 379 of IPC, the Prosecution has to establish that on 22-8-2016, Accused Nos 1 to 3 being the owners of three crime vehicles i.e. 1) AP 35 W 0322, Trailor No.AP 35 U 7972, 2)

Tractor bearing No.AP 35 W 2866, Trailor No.AP 35 W 2872 and 3)

Tractor bearing No.AP 35 V 7524, Trailor No. AP 35 V 7527 respectively, criminally trespassed into the Chamapavathi river bed belonging to the Government and loaded the sand into the tractor- trailer, without any license, or, authority and thereby Accused committed the offence.

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C.C..No.377/2017 DT:30.04.2019 10.2 In order to prove the guilt for the offences stated supra, the prosecution has placed its reliance upon the testimonies of Pws.1 to 6 coupled with Ex.P1 t P.4 10.3The learned Asst.Public Prosecutor would contend that, from the testimonies of Pws.1 to 3 coupled with Ex.P1 to P4, it is very clear that the Accused Nos 1 to 3 being the driver and owner of the tractor- trailors respectively, criminally trespassed into the Champavathi River bed and loaded the sand into the vehicle, without any license, or, authority, for selling the same for higher price and thereby all the

Accused committed the offences stated supra.

10.4The learned counsel for the Accused Nos 1 to 3 would contend that, no independent witnesses are examined, the

Investigation Officer/P.W.6 failed to follow the procedure for search and seizure and as such, the alleged seizure was not proved by the prosecution. Hence, he prayed to acquit the Accused Nos 1 to 3 since they are no way concerned with the case.

10.5 As stated supra, it is now for the prosecution to prove that

Accused No.1 was illegally loading and transporting the sand. To prove the above case, the Prosecution solely relied upon the evidence of PW- 5 and PW.5. Since P.W.5 and P.W.6 are official witnesses and they come under the category of highly interested witness, hence their evidence should be scrutinized with a little bit more care and caution, else any amount of prejudice will be caused to the accused.

5 of 13

C.C..No.377/2017 DT:30.04.2019 10.6PW.1 E. Pydibabu has deposed that he is the owner of the

Tractor bearing No. AP 35 V 7524 and at about two years ago, he sold away the same to A.3/Pitta Ramana under sale agreement, agreeing for consideration of Rs.2,00,000/- in the month of August, 2016 and on the date of agreement itself, he handed over its possession of Tractor bearing No. AP 35 V 7524 to A.3. PW.1 further deposed that thereafter, he came to know through A.3 that the said Tractor was involved in sand theft case basing on the report of police and that Original RC

Book of said Tractor is with his name till date and it was not transferred so far to the A.3 and PW.1 took custody of case property i.e. M.O.1/

Tractor bearing No. AP 35 V 7524 as per orders of the Hon’ble Court vide Crl.M.P.No.6883/2016, dated: 20-9-2016 on the file of the

Additional Judicial Magistrate of the First Class Court. In the cross

examination PW1 deposed that he is the owner of M.O.1 and he is in possession of it. PW.1 further deposed that he does not know facts of the case and does not know the Accused.

10.7 PW.2 K. Chandasekhar has deposed that he is the resident of Kella village, Gurla mandal and he is the owner of trailer bearing

No. AP 35 V 7527; and that about three years ago, he agreed to sell away the above said trailer to Accused No.3 of you, and he (PW.2) delivered the possession of the same to A.3 but, the ownership of the above said trailer was not transferred in the name of Accused No.3 and it stands in name of PW.2 at present and later PW.2 came to know that the Pusapatirega Police seized his trailer in a sand theft case and he immediately, went to the police station and later, he approached this Court and took interim custody of his trailer i.e. M.O.2, by filing a petition. The learned APP cross examined the witness as the witness 6 of 13

C.C..No.377/2017 DT:30.04.2019 turned hostile, but nothing could be elicited infavour of prosecution. In the Cross examination done by the Accused, PW.2 deposed that no transactions took place between him and A.3 with regard to M.O.2 subsequent to he taken over M.O.2 from the Court.

10.8 A perusal of the evidence of PW.1, it is evident that he deposed in his chief examination that he knows Accused No.3 and with regard to the sale transactions took place between him and A.3, whereas, in the cross examination, he categorically deposed that he does not know the facts of the case, so also Accused. Thus, PW1 gave two different versions in his examination in chief and cross examination and his evidence not that much helpful to the case of prosecution to prove the guilt of Accused.

10.9. PW.6 G. Kaladar, SI of Police has deposed that on 22-8-2016 at about 10.30 Hrs., he received credible information that the some persons are lifting the sand illegally and immediately, he along with

PW 5 and LW.7/A. Rajesh (PC 1654) proceeded to the Champavathi riverbed near Kupparla village and found three tractors and trailers and some persons are loading the sand in the trailers and on seeing them, the tractor drivers left their tractors and absconded from there.

PW.6 further deposed that the said three tractor numbers are 1)AP35

V 7524, and Trailer No. AP 35 V 7527; 2)AP35 W 2866 and the Trailer

AP-35 W 2872; 3) AP 35 W 322 and trailer No. AP 35 U 797. PW.6 further deposed that he prepared the Ext.P.3/Occurrence report and seized the tractors and trailers and brought the same to their PS by taking photographs and basing on Ext.P.3 he registered a case in 7 of 13

C.C..No.377/2017 DT:30.04.2019

Cr.No. 127/2016 for the offence u/s. 447 and 379 of IPC and issued

Ext.P.4/FIR.

10.10In the cross-examination PW.6 deposed that he did not give any intimation either to the Panchayat Secretary of nearby village or MRO concerned at the time of seizure. A perusal of

Ext.P.1/Occurrence report discloses that PW.6 prepared the same since no mediators are available at that time. According to the case of prosecution and the evidence of PWs 5 and 6 the alleged incident took place at the time of 10.30 AM. Generally, public belongs to the nearby villagers will be available at that time and also revenue officials will be in their duties at that time. It is not the case of prosecution and the evidence of PW.6 that he deputed any person to fetch mediators or the Revenue Officials, but they are not available. In the cross examination PW.5 deposed that he does not know whether PW.6 gave information to the revenue officials of Kooperla village, so also the

Sarpanch.

10.11 PW.6 in the Occurrence Report mentioned that no mediators are available, where as in his cross examination, he deposed that he did not give any intimation either to the Panchayat secretary of nearby village or MRO of concerned at the time of seizure. At least

PW.6 would have summoned Village secretary or Village Revenue

Assistant of nearby village since it is the specific evidence of Pws 5 and 6 that the incident took place near Kopperla and Nathavalasa villages.

Thus, it is the evident that PW.6 did not make any efforts to secure the presence of mediators or the revenue officials at the time of alleged seizure which creates a reasonable doubt in the version of prosecution 8 of 13

C.C..No.377/2017 DT:30.04.2019 with regard to conducting of Ext.P.1/Occurrence report at the place of offence.

10.12 Pw.6 further deposed that on the next day, A.1 to A.3 came to the police station and confessed that the above three Tractors belonging to them and that he (PW.6) verified the documents and A.1 to A.3 also confessed that on their instructions some persons were loading the sand in the tractors and trailers and A.1 to A.3 have no permission to that effect. PW.6 further deposed that he secured the presence of PWs 3 and 4 and prepared confession statement of the

Accused. It is the evidence of PW.3 that about two years ago on

Monday when he went to the Pusapatirega police station on his personal work, the police obtained his signature under Ext.P.2 on some written papers, but he does not know its contents. It is the evidence of

PW.4 that about two years on one day, he went to the Pusapatirega police station on his personal work and that the Police obtained his thumb impression on some written papers. Thus, Pws 3 and 4 did not support the evidence of PW.6 and turned hostile. Though the learned

APP cross examined PWs 3 and 4, but nothing could be elicited in- favour of the prosecution version. Further, the alleged confession statement of A.1 to A.3 was recorded by PW.6 who is a police officer and hence, the said confession is inadmissible in evidence and it is hit by Section 25 of Indian Evidence Act, 1872.

10.13It is the case of prosecution that on 22-8-2016

PW.5 and LW.7/Rajesh accompanied PW.6 to the place of incident and

PW.6 seized the tractors and trailors in their presence. It is the evidence of Pw.5 K. Dalibabu that on 22-8-2016 at about 10.30 AM he 9 of 13

C.C..No.377/2017 DT:30.04.2019 along with LW.7/J.Rajesh accompanied PW.6 /SI of police and proceeded to the Champavathi river bed near Kopperla village on reliable information and found some persons were lifting the sand illegally and when they reached the said place, they found three tractors and trailers and some persons were loading the sand in the trailers and on seeing them, the tractor drivers left their tractors and absconded from there; and that PW.6 prepared Occurrence report/Ext.P.3 and he along with LW.7 singed on it and the said tractor numbers are 1) AP 35 V 7524 and trailer No. 7527; (2) AP 35 W 2866 and trailer No.2972 and (3) AP 35 W 322 and Trailer No. AP 35 U 7972. In his further evidence,

PW.5 deposed that he cannot identity the said three drivers since they immediately after seeing them absconded from that place. Thus, there is no corroboration between the testimonies of PW.5 and PW.6 with regard to identification of the Accused at the scene of offence at the relevant point of time.

10.14 PW.6 further deposed that he served 41-A Cr.P.C. notices to

A.1 to A.3 and examined PW.2 and LW.3/Surya Prakash since the tractor bearing No. AP 35 V 7527 stands in the name of PW.2 and AP 35

U7972 stands in the name of LW.3. But, PW.2 turned hostile to the case of prosecution and LW.3/P.Suryaprakash is not examined by the prosecution.

10.15 PW.6 further deposed that in obedience of orders of this

Court, he released the said three tractors and trailors to their owners.

It is true that there is no necessity to PW.6 to implicate Accused Nos 1 to 3 in this case, but it is not a sole ground to say that Accused committed the offence. It is true that it is the evidence of PWs 1 and 2 10 of 13

C.C..No.377/2017 DT:30.04.2019 that they came to know through Accused No.3 that their Tractor bearing No. AP 35 V 7524 and Trailor bearing NO. AP 35 V 7527 respectively are involved in the sand theft. But, it does not mean to say that Accused lifted the sand at the relevant point of time and loaded the same in M.O.1 and M.O.2 and in other Tractors.

10.16Further in the cross-examination PW.6 deposed that the did not file any document to show that the scene of offence is a

Government land. When it is the specific case of prosecution that the

A.1 to A.3 allegedly lifted the sand at the scene of offence which is a

Government land, the prosecution ought to have filed any document to show that it is a Government land. Further, it is the case of prosecution that PW.6 got photographed the scene of offence at the time of seizure of Tractors and Trailors. But, the prosecution did not exhibit any photographs to that effect.

10.17 All the above attending circumstances leads to create a reasonable doubt in the version of the prosecution with regard to identity of the Accused at the place of offence at the relevant point of time and lifting of sand by A.1 to A.3. It is settled legal position of law that when there is any reasonable doubt in the version of the prosecution, benefit of doubt shall be extended to the Accused and the prosecution failed to produce any cogent evidence to say that the

Accused Nos.1 to 3 were illegally loading and transporting sand for sale at higher price, by criminally trespassing into Champavathi River bed, belonging to Government. Under these circumstances, this Court is of the considered opinion that the prosecution failed to prove the guilt of the Accused Nos 1 to 3 for the offences Under Section.447 and 379 of 11 of 13

C.C..No.377/2017 DT:30.04.2019

I.P.C., and hence, Accused Nos 1 to 3 are entitled for acquittal under benefit of doubt. Accordingly, the point is answered.

12.IN THE RESULT, the Accused Nos.1 to 3 are found not guilty for the offences punishable under sections 447 and 379 of I.P.C, accordingly they are acquitted under section 248(1) of Cr.P.C. The bail bonds of the Accused Nos.1 to 3 shall remain in force for a period of six months as envisaged U/sec 437-A Cr.P.C.

12.1. M.O.1 i.e. Tractor bearing No. AP 35 V 7424 which was given to PW.1 towards interim custody as per or- ders in Crl.M.P.No.6883/2016, dated:20-9-2016, M.O.2 i.e.

Trailor bearing No.AP 35 V 7527 which was given to PW.2 towards interim custody as per orders in Crl.M.P.No.

6882/2016, dated: 20-9-2016, the Tractor bearing No. AP 35

W 0322 and Trailor bearing No. AP 35 U 7972 which was given to Accused No.1 towards interim custody as per the orders in

CrlM.P.No. 7189/2016, dated: 28-9-2016 and Tractor Bearing

No. AP 35 W 2866 & Trailor bearing NO.A P 35 W 2872 which were given towards interim custody to A.2 asper the orders in

Crl.M.P.No. 6748/2016 , dated; 9-9-2016 are ordered to be

made absolute, after expiry of appeal time.

Typed to my dictation, corrected, signed and pronounced by me in the open court court, on this the 30 th day of April, 2019.

Sd/-N.Radhika

Spl. Judl. Magistrate of First Class

for trial of cases under A.P. Prohibition and

Excise Act-Cum-III Addl. Junior Civil Judge

Vizianagaram

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C.C..No.377/2017 DT:30.04.2019

APPENDIX OF EVIDENCE

WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION

PW.1/LW.1E. Pydibabu.Owner of the Tractor bearing No.AP 35 V 7524

PW.2/LW.2K. Chandrasekhar. Owner of the Tractor bearing No.AP 35 V 7524

PW.3/LW.4P.SrinuMediators

PW.4/LW.5K. ButchibabuMediators

PW.5/LW.6K. DalibabuConstable who assisted PW.6

PW.6/LW.8G. KaladarInvestigation officer

WITNESS EXAMINED OF BEHALF OF THE DEFENCE

-NONE-

EXHIBITS MARKED ON BEHALF OF THE PROSECUTION

Ex.P1161 Cr.P.C. Statement of PW.2

Ex.P2Signature of PW.3 on confession report.

Ext.P.3Occurrence report,dated;22-8-2016

Ext.P.4Original First Information Report/dt:22-8-2016

EXHIBITS MARKED ON BEHALF OF THE DEFENCE

--NIL--

MATERIAL OBJECTS MARKED

M.O.1 i.e. Tractor bearing No. AP 35 V 7424

M.O.2 i.e. Trailor bearing No.AP 35 V 7527

Sd/-N.Radhika

Spl. Judl. Magistrate of First Class

for trial of cases under A.P. Prohibition and

Excise Act-Cum-III Addl. Junior Civil Judge

Vizianagaram

13 of 13

O.S.No.221/2018 DT: 26-04-2019

IN THE COURT OF SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS FOR

TRIAL OF CASES UNDER A.P. PROHIBITION AND EXCISE Act­CUM­III

ADDITIONAL JUNIOR CIVIL JUDGE, AT VIZIANAGARAM

Present: Smt.N.Radhika Spl. Judl. Magistrate of First Class for trial of cases under A.P. Prohibition and Excise Act­Cum­III Addl. Junior Civil Judge Vizianagaram. 

(Friday, this the 26th day of April, 2019)

ORIGINAL SUIT NO. 221 /2018

Between:

Potnuru Yerukulu…Plaintiff.

And:

Sarapenta Venkata Ramana…Defendant.

This suit is coming on 25­4­2019 for final hearing before me in the presence of Sri M. Sankara Rao, learned counsel for the Plaintiff and the Defendant remained exparte, upon hearing arguments, upon considering the material available on record and the matter having been stood over for consideration till this day, the Court doth order and delivered the following:

­:JUDGMENT:­

1.This is a suit filed for recovery of Rs.1,20,073/­ with costs and subsequent interest, basing on the promissory note dated: 14­05­2015, with the following averments:­

2.The Defendant borrowed an amount of Rs.70,000/­ from the

Plaintiff on 14­05­2015 for discharging his sundry debts , and on the same 1 of 4

O.S.No.221/2018 DT: 26-04-2019

day Defendant executed a demand promissory note in favour of the

Plaintiff, for the said amount agreeing to repay the same with interest @ 24% per annum, either to the Plaintiff, or, to his order, on demand.

Thereafter, inspite of repeated demands made by the Plaintiff, the Defendant did not choose to make the payment. Hence, the suit.

3.After registering the suit, summons were issued to the

Defendant by way of publication in Prajasakhti Telugu Daily News paper and the publication filed on 22­4­2019. But, the Defendant failed to attend

before the Court, no representation on his behalf and hence, he was set ex­

parte on 22­4­2019.

4. During the trial, the plaintiff himself examined as P.W.1 and got exhibited Ex.A1 and Ex.A.2

5. Heard. Perused the record.

6. Now the point germane for my determination is, “Whether the

Plaintiff is entitled to recover the suit amount, as prayed for”?

(i) The Plaintiff as P.W.1 testified that the Defendant borrowed an amount of Rs.70,000/­ from him on 14­5­2015 and executed Ex.A1 promissory note. P.W.1 further testified that inspite of repeated demands, 2 of 4

O.S.No.221/2018 DT: 26-04-2019

the Defendant did not choose to make payment and hence, he got issued

Ext.A.2/Legal notice demanding the Defendant to make payment, but the

Defendant failed to do so. To substantiate his contention, the Plaintiff got exhibited Ex.A1 and Ex.A.2.

(ii) The evidence of P.W.1 remained unchallenged. As per the evidence of P.W.1 coupled with Ex.A.1, it is clear that the Defendant borrowed an amount of Rs.70,000/­ from PW.1 on 14­5­2015 inspite of repeated demands made by PW.1, the Defendant did not make payment and hence the Plaintiff got issued legal notice under Ext.A.2. It is the evidence of

PW.1 inspite of issuance of legal notice also, the Defendant did not repay the said debt amount to P.W.1, for the reasons best known to him. 

(iii) Hence, from the evidence of P.W.1 coupled with Ex.A1 and Ex.A.2, this Court holds that the Plaintiff has proved the suit claim and the Plaintiff is entitled to recover the suit amount, as prayed for. Point is answered accordingly.

7. IN THE RESULT, the suit of the Plaintiff is decreed with costs against the Defendant for a sum of Rs. 1,20,073/­ (Rupees One Lakh,

Twenty Thousand and Seventy Three only) with subsequent interest at the rate of 12% per annum from the presentation of the suit till the date of 3 of 4

O.S.No.221/2018 DT: 26-04-2019

decree, and thenceforth, at the rate of 6% per annum till realization, on the

principal sum of Rs.70,000/­ (Rupees Seventy Thousand only).

Typed to my dictation, Corrected, Signed and pronounced by me in the open Court, this the 26 th day of April, 2019.

Sd/­N.Radhika Spl. Judl. Magistrate of First Class for trial of cases under A.P. Prohibition and Excise Act­ Cum­III Addl. Junior Civil Judge, Vizianagaram.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintif For Defendant

-NONE P.W.1- P. Yerukulu

DOCUMENTS MARKED

Sl.No.For PlaintiffSl.No.For Defendant

Ex.A1Original Promissory note Dt:14­5­2015 for Rs.70,000/­. -NIL-

Ex.A.2:Office Copy of Legal Notice dated: 2­5­2018

Sd/­N.Radhika Spl. Judl. Magistrate of First Class for trial of cases under A.P. Prohibition and Excise Act­ Cum­III Addl. Junior Civil Judge, Vizianagaram.

4 of 4

CC 186/2019 Dt: 29-04-2019

IN THE COURT OF SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS FOR TRIAL OF

CASES UNDER A.P. PROHIBITION AND EXCISE ACT­CUM­III ADDITIONAL JUNIOR

CIVIL JUDGE, AT VIZIANAGARAM

(Monday, the 29th day of April, 2019)

Present: Smt.N.Radhika Spl. Judl. Magistrate of First Class for trial of cases under A.P. Prohibition and Excise Act­Cum­III Addl. Junior Civil Judge Vizianagaram. 

CALENDER CASE No. 186 of 2019

BETWEEN: State represented by the Proh & Excise Sub­Inspector, Proh & Excise Station, Vizianagaram. … Prosecution AND

Korada Narayana Rao, S/o Late Sanyasi Age 60 years, Caste Kapu, R/o Indiranagar Colony, Vizianagaram Town. 

...Accused

This case is coming before me for hearing in the presence of Smt.Madhavi, learned Assistant Public Prosecutor for the Prosecution and upon hearing considering the material available on record and the matter having stood over consideration till this day, this court delivered the following:­

::JUDGMENT::

Prosecution filed a report stating that Accused died and enclosed the Photostat of

Death Certificate of Accused. The report is recorded. Hence, case against the Accused is abated as died.

(Typed to my Dictation by Typist, corrected and pronounced by me in the Open Court on this the 29 th day of April, 2019).

Sd/­ N.Radhika

Spl. Judl. Magistrate of First Class for trial of cases under A.P. Prohibition and Excise Act­Cum­III Addl. Junior Civil Judge Vizianagaram. 

Pg no. 1 of 1

CC 186/2019 Dt: 29-04-2019

Pg no. 2 of 1

Police present. Accused present. Judgement pronounced Vide Separate typed one. In the result, A1 is found not guilty for the offence punishable under section 324 and 354 of IOC Further

A1 and A2 are found not guilty for the offence punishable under Section 323 and 506 r/w 34 IPC

Accordingly, they are acquitted under section 248(1) of CrPC The bail bonds of the Accused shall remain in force for a period of six months as envisaged U/sec. 437-A of CrPC

Spl.Judl.I Class Magistrate (Excise), -cum-III Addl. Junior Civil Judge, Vizianagaram.