Smt.S.Praveena

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

AT HYDERABAD.

THURSDAY, THE 30TH DAY OF JUNE, 2015

Present: Smt S. Praveena, FAC II Addl. Metropolitan Sessions Judge, Hyderabad.

CRIMINAL APPEAL NO. 62 OF 2012

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

Case Number in that court C.C.No. 762 of 2005

Criminal Appeal Number C.A.No. 62 of 2012

Name and description of the appellant A. Prabhakar Rao S/o A.R. N Naidu Occ: Retired R/o Flat No.208, Subhaprada Apts., Malkajgiri, R.R Dist.,

Name and description of the RespondentsState of Telangana through S.I of Police, PS. Mirchowk Hyderabad

The law and sentence under which The accused was convicted for the charge the appellant was convicted before the lower under section 471 IPC and sentenced to courtundergo R.I for a period of 4 years and to pay a fine of Rs.5000/- indefault of payment of fine he shall under go S.I of a period of 6 months for the offence U/s 420 IPC. The accused sentenced to undergo R.I for a period of 2 years and to pay a fine of Rs.5000/- indefault of payment of fine he shall under go S.I of a period of 6 months for the offence U/s 417 IPC

Whether confirmed, modified or reversed and if In the result modified, the modification

DATE ON WHICH

Presentation of Appeal 24-1-2012 Filing of Appeal 24-1-2012 Notice issued to appellant to appear 25-1-2012 First appearance of Appellant 28-2-2012 Hearing of Appeal 03-4-2012 Judgment in the Appeal 30-6-2015

This Criminal Appeal is coming on for hearing before me, and upon perusing the grounds of appeal, lower court record, and considering the arguments of Sri. M/s Arun P. Gaikward, Advocate for the Appellant/Accused and Addl P.P for the Respondent/State, this Court has made the following :

J U D G M EN T

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1. The present appeal has been filed by the appellant-accused challenging the

Judgment of conviction dated 20-01-2012 in CC No 762 of 2015 on the file of VIII Additional

Chief Metropolitan Magistrate, Hyderabad, wherein and whereby, the appellant-accused was convicted for the offences under sections 420 and 471 of IPC and sentenced to undergo rigorous

Imprisonment for a period of four (4) years and to pay a fine of Rs 5,000/-, in default simple imprisonment for a period of six (6) months for the offence under Section 420 IPC and also sentenced to undergo rigorous Imprisonment for a period of two (2) years and to pay a fine of Rs 5,000/-, in default simple imprisonment for a period of six (6) months for the offence under

Section 471 IPC. Further, both the sentences shall run concurrently.

2The appellant herein is the accused and respondent is the State before the trial court. For the sake of brevity, the ranks of parties as referred to before the trial court are maintained.

3It is the case of the prosecution, in a nutshell, that on 21-05-2015, at 5.15 PM., the then

Branch Manager, Syndicate Bank, Pathergatthi Branch, Hyderabad who is examined as PW.2 preferred a complaint exhibit P.1 before Mirchowk police alleging that the accused-A. Prabhakar

Rao, who is a Railway Employee, approached his Bank on 15-07-2004 for personal loan of Rs 2 lakhs and after obtaining necessary documents and taking surety of one guarantor, loan was sanctioned to him and the amount was paid to him on 15-07-2004. The loan amount is to be repaid in 60 equal monthly installments at Rs 4,580/-. The accused, after paying only one installment, committed default in paying the monthly installments. In order to recover the balance installments, the bank made enquiries about the accused and it came to know that the accused retired from service on 29-09-2004 on attaining the age of superannuation of 60 years and he did not attend duty from 13-05-2003 till the date of his retirement and thus no salary was paid to him for the said period.

4It is further revealed from the said enquiry that pay slip produced by the accused to the bank at the time of obtaining loan discloses his salary as Rs 11,050/- whereas, his actual pay on that day was only Rs 10,600/- and that the accused while submitting the loan application mentioned his date of birth as 29-09-1954 which is incorrect since his correct date of birth was 29- 09-1944. Hence, the bank understood that the accused willfully misrepresented the bank by 3

Sfurnishing his wrong date of birth and income by producing a forged pay slip and fraudulently taken away the loan amount of Rs 2 lakhs and willfully failed to repay the said loan amount and thereby cheated the bank authorities.

5On receipt of report of PW.2, a case was registered in Crime No 86 of 2005 by Mirchowk police for the offences under Section 420 and 471 IPC and investigated into. During the course of investigation, the then Sub-Inspector of Police, Mirchowk police station, who is examined as

PW.4 visited the scene of offence and recorded the statement of PW.1-the Cashier of the Bank and

PW.2-Senior Branch Manager of the Bank and PW.3-Assistant Manager of the Bank. On 23-05- 2005, at 12.15 PM, PW.4 arrested the accused at his residence and sent him for remand. Pw.4 addressed a letter dated 15-06-2005 to the Chief Operating Manager, Railway Nilayam,

Secunderabad calling for date of birth and retirement particulars of the accused. He has received the particulars of the accused as the date of birth of the accused was 29-09-1944 and retired from service on 30-09-2004. Since the investigation conducted by PW.4 discloses that the accused cheated the bank by producing a false pay slip and date of birth certificate and availed the loan amount and thus, the Investigating Officer filed the charge-sheet against the accused for the offences under Sections 420 and 471 IPC.

6The case was taken on file for the offences under Sections 420 and 471 IPC against the accused. On appearance of the accused, copies of relevant documents were furnished to him as contemplated under Section 207 CrPC.

7Having considered the material record and hearing the counsel and Additional Public

Prosecutor, framed charges under Sections 420 and 471 IPC against the accused and the same were read over and explained to the accused in Telugu to which he denied the offences, pleaded not guilty and claimed to be tried.

8To prove the guilt of the accused, the prosecution has examined four (4) witnesses namely

P.Ws 1 to 4, besides relying upon exhibits P.1 to P.16.

4 9After closure of the prosecution side evidence, the accused was examined under section 313 CrPC, and explained the incriminating evidence appeared in the evidence of P.Ws 1 to 4 against him, to which he denied the same and reported, he has no defence evidence on his behalf.

10The trial Judge, after considering the oral and documentary evidence placed before him and hearing both the counsel appearing for the accused and Additional Public Prosecutor, convicted the accused for the offences under Sections 420 and 471 IPC and sentenced to undergo rigorous Imprisonment for a period of four (4) years and to pay a fine of Rs 5,000/-, in default simple imprisonment for a period of 6 months for the offence under Section 420 IPC and he is also sentenced to undergo rigorous Imprisonment two (2) years and to pay a fine Rs 5,000/-, in default simple imprisonment for a period of 6 months for the offence under Section 471 IPC. Further both the sentences shall run concurrently. Hence, the present appeal.

11Heard both sides.

12The learned counsel appearing for the accused argued that the evidence of P.Ws 1 to 4 are not the directly useful to sentence the accused. Further, exhibits P.1 to P.16 are not the original documents and all are Photostat copies. The learned trial Judge marked Photostat copies as a secondary evidence ignoring to follow the mandatory provision laid down under Sections 62 to 66 of Indian Evidence Act. He further argued that exhibit P.1-salary certificate produced by the accused along with exhibit P.2 loan application clinchingly shows that the accused has stated that his date birth as 29-09-1954. The learned trial Judge erred in holding that the contents in exhibits

P.2, P.10 and P.16 are proved and on the strength of the said exhibits P.2, P.10 and P.16 sentence the accused for the offence with which he is charged. The prosecution has miserably failed to explain as to what happened to the originals and why the originals were not filed before the trial court and why the procedure lay down under Indian Evidence Act is not followed and as such, exhibit P.2 cannot be relied upon. It is further submitted by the learned counsel appearing for the accused that the learned trial Judge wrongly taken into consideration of exhibit P.10 which is a

Xerox copy in the said exhibit P.10 there is a mention with regard to date of birth of the accused has falsely mentioned and thus, the learned trial Judge held that the accused misrepresented the bank and basing on exhibit P.10 found the accused guilty of the offence under Section 471 IPC. If 5

Sthe exhibit P.10 is executed for consideration, there is no other evidence to sustain the sentence under Section 471 IPC. In support of his arguments, he relied upon a decision reported in (1)AIR 1994 Supreme Court 591 (between Government of Andhra Pradesh and others Vs

Karri Chinna Venkata Reddy and others), wherein it is held that “Indian Evidence Act-1872, Sections 62, 63 – Documentary evidence – Admission by way of Photostat copies – Objection as to tampering of record and fictitious nature of document not raised and hence not considered by High Court –

Admission of secondary evidence improper – Genuineness of document was fundamental question hence, copies should have been accepted in evidence, after examining original records”.

(2)AIR 1975 Supreme Court 1748 (between Ashok Dulichand Vs Madhavlal Debe and another), wherein it is held that:

“(A) Evidence Act (1872), Section 65 (a) – Election petition – Photostat copy of manuscript of leaflet – Successful candidate not shown to be in possession of the original – Document, not above suspicion – Leading of secondary evidence – Not permissible”.

(3)AIR 1966 Supreme Court 1457 (Between the Roman Catholic Mission Vs State of

Madras, wherein it is held that; “(A) Evidence Act (1872), S.65 – Original not produced at any time – No foundation laid down for establishment of right to give secondary evidence –

Copies of original not admissible in evidence”.

The learned counsel appearing for the accused submits that the trial court commits serious error in placing reliance on the attested copies of documents which are marked as exhibits without offering any explanation for non-production of original documents. Section 65 of Indian Evidence Act, secondary evidence is admissible on a proper explanation regarding non-production of the original documents. There being no explanation offered by the prosecution while marking Photostat copies of exhibits, they do not deserve for consideration. Once the attested copies, which have been exhibited as are excluded for consideration there is no material on record that the accused misrepresented the bank regarding the date of birth and salary particulars. In such a case, the 6 conviction and sentence of the accused for the offences under Sections 420 and 471 of IPC cannot be sustained. In support of his contention reliance has been placed on the following decisions:

18. AIR 1966 SUPREME COURT 1457

19. AIR 1975 SUPRREME COURT 1748

20. AIR 1994 SUPREME COURT 591 13The first cited decision reported in AIR 1966 Supreme Court 1457, the Hon’ble Supreme

Court was dealing with a situation where the original documents not produced at any time and parties failed to lay foundation for establishment of right to give secondary evidence. So, the documents stated to be in admissible in evidence.

14The second cited decision reported in AIR 1975 Supreme Court 1748, the unsuccessful candidate challenged the election of returned candidate on the ground that elected candidate have made defamatory statement in writing. The unsuccessful candidate failed to explain as to what were the circumstances, under which Photostat copy was prepared and who was in possession of original documents at the time its photograph was taken. The Hon’ble Supreme Court held that the photo copy being not above suspicion, the petitioner could not be permitted to lead secondary evidence in the shape of photostat copy where there was neither any averment nor any material to show that the original document was in possession of successful candidate.

15In third cited decision reported in AIR 1994 SUPREME COURT 591, the Hon’ble

Supreme Court held that “genuineness of the document was fundamental question, hence copies should have been accepted in evidence after examining the original records”.

16The prosecution contends that the accused wrongly noted his date of birth in exhibit P.2- loan application and so also in exhibit P.10-salary certificate. Exhibit P.2 says the date of birth of the accused is 29-09-1954 and the same is noted in exhibit P.10-salary certificate also. Since the accused is author of exhibit P.2 application, certainly it can be believed that he has noted down of the particulars of exhibit P.2 loan application and that the accused put his date of birth in exhibit

P.2 as 29-09-1954. Admittedly, exhibit P.10 salary certificate was produced by accused along with exhibit P.2-loan application. Exhibits P.2 and P.10 clinchingly show that the accused has stated his 7

Sdate of birth as 29-09-1954 while obtaining the loan from the bank. But exhibit P.15 letter dated 15-06-2005 addressed to Chief Operating Manager, Railway Nilayam for production of date of birth and retirement particulars of the accused for which, the Chief Personal Officer issued a reply under exhibit P.16 dated 16-06-2005 stating the correct date of birth of accused as per his service register as 29-09-1944 and he retired from service on 30-09-2004.

17As against this, the learned counsel for the accused argued that though exhibit P.16 reply given by the employer of the accused was marked through PW4, the employer of the accused was not examined by the prosecution. So, exhibit P.16 cannot be considered for the reason its author is not examined before the court, and as such, the lower court Judgment dated 20-01-2012 is liable to be set aside.

18In the light of the above contentions and the evidence brought on record, now, what has to been is that;

Whether the conviction and sentence of fine imposed against appellant-accused for the offences under Sections 420 and 471 IPC can be sustained?

19The accusation made against the accused is that he made the bank to believe that his date of birth as 29-09-1954 while availing the loan of Rs 2 lakhs. Exhibit P.2 is the attested copy of the loan application Ex.P.2. It is not disputed by the accused regarding his submission of loan application Ex.P.2 and availment of loan of Rs 2 lakhs. Exhibit P.2 has been marked through

PW.2. He categorically stated in chief-examination that the accused submitted exhibit P.2 attested copy of loan application. Nothing was suggested to him in cross-examination disputing the contents of exhibit P.2 attested copy of loan application. In exhibit P.2, the accused mentioned his date of birth as 29-09-1954. PW.4 collected the information from the employer of the accused with regard to the service particulars of the accused. Exhibit P.16 is the letter issued by the employer of the accused. The date of birth of the accused as mentioned in exhibit P.16 is 29-09- 1944 and he retired from service on 30-09-2004. Exhibit P.16 is marked through PW.4. Nothing is suggested to PW.4 disputing the date of birth as entered in service register; it shows the prosecution is able to establish its case against the accused beyond all reasonable doubt that the 8 accused furnished false information regarding his date of birth and availed personal loan of Rs 2 lakhs from the bank. Had the correct date of birth furnished by the accused to the Bank, PW.2 ought not have sanctioned the loan of Rs 2 lakhs. The evidence of P.ws 1 to 4 clearly establishes that the accused produced false documents and furnished false particulars and availed loan of Rs 2 lakhs. The trial court considered the material on record in a right perspective and found the accused guilty for the offence under Section 420 IPC. Therefore, the conviction of accused for the offence under Section 420 IPC does not warrant interference.

20Coming to the offence under Section 471 IPC. The prosecution failed to examine the employer of the accused to show that the salary certificate produced by him is fake. In the absence of any such positive evidence from the employer of the accused, the Investigating Officer failed to examine the employer of the accused with reference to the contents of salary certificate attested copy of which has been exhibited as exhibit P.10. Therefore, the conviction of the accused under Section 471 PC cannot be sustained and accordingly the sentence is set aside.

21With regard to the quantum of sentence for the offence under Section 420 IPC, the accused pleaded before the trial court that his wife has been suffering from cancer and he is a retired employee and aged about 70 years that there is none to look after his wife. Having regard to the age of accused and ailment of his wife, I am of the view that the sentence of two (2) years while maintaining the fine imposed by the trial court would meet the ends of justice.

22In the result, the appeal is partly allowed setting aside the conviction and sentence of the accused for the offence under Section 471 IPC while confirming the conviction of the accused for the offence under Section 420 IPC by reducing the sentence from four (4) years to two (2) years while maintaining the fine. The fine amount paid by the accused for the offence under Section 471 IPC is ordered to be refund after expiry of revision time.

Dictated to Stenographer, transcribed and typed to her, corrected and pronounced by me in

open court on this the 30th day of June, 2015.

II ADDL, METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

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

AT HYDERABAD.

THURSDAY, THE 1 st DAY OF JULY, 2015

Present: Smt. S. Praveena, FAC II Addl. Metropolitan Sessions Judge, Hyderabad.

CRIMINAL APPEAL NO. 657 OF 2012

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

Case Number in that court C.C.No. 20 of 2010

Criminal Appeal Number C.A.No. 657 of 2012

Name and description of the appellantK Arvind Reddy s/o K Anna Reddy Occ: Pvt Service through his GPA holder N Prabhakar Reddy,

Name and description of the RespondentsGilla Ravinder Reddy S/o G Dasharatha Reddy, Aged 37 yrs Occ: Business, R/o 1-7- 40/A SS Nagar, Habsiguda Hyderabad

The law and sentence under which The accused found not guilty for the charge the appellant was convicted before the lower under section 138 of N.I Act and the courtaccused is acquitted U/s 255(1) CrPC.

Whether confirmed, modified or reversed and if In the result, the appeal is dismissed modified, the modification

DATE ON WHICH

Presentation of Appeal 20-7-2012 Filing of Appeal 20-7-2012 Notice issued to appellant to appear 21-7-2012 First appearance of Appellant 19-10-2012 Hearing of Appeal 10-12-2012 Judgment in the Appeal 01-07-2015

This Criminal Appeal is coming on for hearing before me, and upon perusing the grounds of appeal, lower court record, and considering the arguments of Sri. M/s B. Vijaysen Reddy, Advocate for the Appellant/Accused and Sri, Advocate for the Respondent/Complainant, this Court has made the following :

J U D G M EN T

1The present appeal has been filed by the appellant-complainant challenging the Judgment of acquittal dated 31-05-2012 passed in CC No 20 of 2010 on the file of XV Addl., Judge cum

XIX Addl., Chief Metropolitan Magistrate, Hyderabad, FAC. XVI Addl., Judge cum XX Addl.,

Chief Metropolitan Magistrate, Hyderabad. Wherein and whereby, the appellant-complainant’s 2 complaint was dismissed by acquitting the accused for the offence under Section 138 of

Negotiable Instruments Act.

2The appellant is the complainant and the respondent is the accused before the trial Court.

For the sake of brevity, the ranks of the parties as referred to in the complaint are maintained.

3Concisely, the case of the complainant is that the complaint is filed by the General Power of Attorney Holder of the complainant – K. Arvind Reddy alleging that the accused having close acquaintance with the complainant, borrowed a sum of Rs 75 lakhs in the year 2007 from the complainant by pleading imminent necessities for his real estate business. The accused promised to repay the loan amount within the year, but failed to do so. After several persuasions of the complainant, the accused had issued cheque bearing No 641780 for a sum of Rs 50 lakhs and another cheque bearing No 318975 for a sum of Rs 25 lakhs, both the cheques dated 03-02-2009 drawn on UTI Bank Limited, CTO, Extension Counter, Office of Commissioner, Commercial

Taxes, Nampally, Hyderabad and requested the complainant to present the cheque issued for Rs 25 lakhs for collection. Accordingly, the complainant has presented the cheque bearing No 318975 which is marked as exhibit P.1 in his account with his bank namely HDFC Bank Limited,

Lakdikapool branch, Hyderabad and the same was returned unpaid along with the cheque return memo dated 13-03-2009 with an endorsement as ‘payment stopped by the drawer’. Thereupon, the complainant got issued a legal notice dated 12-04-2009 by registered post with acknowledgment due calling upon the accused to pay the bounced cheque amount within 15 days from the date of receipt of notice. The accused having received the legal notice, got issued a reply notice dated 04-05-2009 through the Advocate with false and baseless allegations. Thus, the accused is liable for the offence under Section 138 of Negotiable Instruments.

4Originally, this complaint was taken on file against the accused for the offence punishable under Section 138 of Negotiable Instruments Act as CC No 1176 of 2009 by the I Additional Chief

Metropolitan Magistrate, Hyderabad. After recording sworn statements of General Power of

Attorney holder of the complainant – N. Prabhaka Reddy and on appearing prima-facie case against the accused, while so, on 16-12-2009 the case was transferred to the Court of XVI Addl.,

Chief Metropolitan Magistrate, Hyderabad as per the orders of the Hon’ble Metropolitan Sessions 3

SJudge, Hyderabad in Dis No 3875/2009, dated 03-11-2009. On receipt of the case records, XVI

Addl., Chief Metropolitan Magistrate, Hyderabad assigned numbered as CC 1222 of 2007 and proceeded with the case against the accused.

5On appearance of the accused before that court, all the case documents on which the complainant has relied upon were furnished to him. While so, the case was transferred to XVI

Addl., Chief Metropolitan Magistrate, Hyderabad as per the orders of the Hon’ble Metropolitan

Sessions Judge in Dis No 2263 of 2010, dated 15-05-2010. On receipt of the case records, the trial

court assigned CC No 20 of 2010 and proceeded with the case against the accused.

6On appearance of the accused, copies of documents were furnished to the accused as contemplated under Section 207 CrPC and he was examined under Section 251 CrPC for the offence under Section 138 of Negotiable Instruments Act, by explaining the accusation made against him, for which he denied the offence, pleaded not guilty and claimed to be tried.

7In order to substantiate his case, the complainant examined his General Power of Attorney holder as P.W 1, besides marking exhibits P.1 to P.8.

8After closure of the evidence on the side of the complainant, the accused was examined under Section 313 CrPC by explaining the incriminating evidence appearing against him in the evidence adduced by the complainant, for which, he denied the incriminating circumstances, but he did not preferred to adduce any oral evidence, but got marked exhibits D.1 to D.5 during the course of cross-examination of PW.1.

9The trial Judge, after considering both the oral and documentary evidence placed by rival parties, acquitted the respondent-accused for the offence under Section 138 of Negotiable

Instruments Act. Hence, the present appeal.

10Heard both sides.

11The learned counsel for the complainant argued that the trial Judge erred in holding that the complaint is barred by limitation, though no serious objection is taken by the accused as to non-filing of the complaint within the statutory period of limitation. It is for the accused to specifically plead and prove that the complaint is filed beyond the period of limitation.

4 12He further argued that the trial Judge failed to appreciate that exhibit P.1-cheque has got no connection with exhibit D.1-memorandum of understanding. There was a separate transaction between Viswa Sai Construcltions and the appellant under exhibit D.1-memorandum of understanding whereas the exhibit P.1 was issued in the personal capacity of the accused for discharging another debt.

13It is also argued by the learned counsel for the complainant that the trial Judge ought to have seen that there is no material placed by the accused to prove that exhibit D.1-memorandum of understanding is connected with the exhibit P.1 cheque. Further, the accused did not enter into the witness box and was not able to rebut the presumption to disprove that exhibit P.1 was issued to discharge legal liability and therefore, adverse inference should have been drawn against the accused.

14He finally submitted that the trial Court ought to have seen that the judgment relied upon by the accused AIR 2005 SC 439 and 2011 (4) ALD 61 is not applicable to the facts of the case as issuance of cheque-exhibit P.1 is not disputed by the accused and thus, it is for the accused to prove as per Section 139 of Negotiable Instruments Act that the cheque was not issued towards discharge of liability, and as such the lower court Judgment is liable to be set aside.

15As against this, the learned counsel for the accused submitted that the trial Judge having considered the entire oral and documentary evidence brought before him on record, he rightly acquitted the accused as complaint is barred by limitation besides giving findings on all other issues, and as such the lower Court judgment does not required any interference.

16In the light of the above contentions and evidence brought on record, now what has to be seen is that

Whether the complaint is barred by limitation?

17Admittedly, there is no dispute with regard to the dishonoring of exhibit P.1-cheque on 18- 03-2009 through exhibit P.4-cheque return memo intimation along with exhibit P.3 cheque return memo dated 13-03-2009 and dispatch of exhibit P.5 statutory notice dated 12-04-2009 to the accused by registered post with acknowledgment due on 15-04-2009.

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S18 So, it is very clear that the complainant got issued exhibit P.5-statutory notice dated 12-04- 2009 to the accused within 30 days from the date of receipt of information from bank concerned and the said statutory notice was duly served on the accused.

19The plain combined reading of Sections 138 and 142 of Negotiable Instruments Act for making out the case under Section 138 of Negotiable Instruments Act, the ingredients are; (1)“The payee of cheque in case of non-payment of cheque is required to send notice within 30 days in writing to the drawer of the cheque from the date of receipt of information about non-payment demanding amount of cheque and (2)The drawer fails to make the payment of the amount within 15 days from the date of receipt of notice, there would be a case under Section 138 of Negotiable

Instruments Act, provided the action is taken for cognizance as provided under

Section 142 of the Negotiable Instruments Act”.

20In the present case, absolutely there is no dispute with regard to issuance of statutory notice and duly serving on the accused and receiving the reply notice dated 04-05-2009 from the accused as discussed supra. Further, the complainant received the information from the Bank concerned about dishonouring of exhibit P.1-cheque on 18-03-2009 through exhibit P.4-cheque return intimation along with exhibit P.3-cheque return memo dated 13-03-2009 and the complainant dispatched the exhibit P.5-statutory notice dated 12-04-2009 to the accused by registered post with acknowledgment due Ex.P.6 on 15-04-2009. Therefore, the complainant issued a statutory notice to the accused within 30 days from the date of receipt of information from the Bank concerned and the said statutory notice was duly served on the accused. The cause of action for filing of the complaint would arise after completion of 15 days from the date of receipt of statutory notice.

21In the present case, admittedly, the complainant failed to file any documentary proof in respect of date of service of statutory notice on the accused and even there is no averment in the complaint in respect of the date of service of statutory notice on the accused. In reckoning the period of limitation, the date of service of statutory notice to the drawer of the cheque is crucial.

22Admittedly, the complainant dispatched exhibit P.5-statutory notice to the accused from the

High Court post-office branch to the address of the accused situated at Habsiguda, Hyderabad.

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The distance between the High Court post-office where the statutory notice was dispatched and the place of address of accused is approximately about 12 km. The place of dispatch of statutory notice and the place of address of the accused are situated within the Hyderabad limits and the distance between two points is only 12 km. So service of notice is sought to be effected by the registered post in the local limits ordinarily service takes place within 2 or 3 days or maximum period of one week. It is assumed for a moment, the service takes place within one week from the date of dispatch of statutory notice and same would be received by the accused by 22-04-2009. In such case, the limitation starts from the date of expiry of 15 days ie from 08-05-2009 to 16th day.

The complaint, in the instance case, was filed on 09-06-2009 which is evident from the court seal affixed on the complaint, that is beyond the period of limitation. Even though, the date of service of statutory notice is crucial for computation of period of limitation for filing the complaint, the complainant did not take steps to file the proof of service. Even the complainant did not get mention the date of service of notice on the accused in the complaint or in the chief-evidence.

Therefore, the complaint filed by the complainant is not maintainable as it is barred by limitation.

23In view of my finding on the limitation for filing the complaint is negative, other issues whether the exhibit P.1 cheque is issued by the accused, if so, exhibit P.1 cheque is issued towards discharge of legally enforceable debt, if so, the accused committed the offence under section 138 of Negotiable Instruments Act, do not arrives for consideration. Since the complaint filed by the complainant is barred by limitation, the accused cannot be connected with the offence with which he is charged. Therefore, I have no hesitation to find that the complaint filed by the complainant is not maintainable as it is barred by limitation. Therefore, there are no grounds to interfere with the

Judgment of the trial court, accordingly, appeal fails and dismissed.

24In the result, the appeal is dismissed, the Judgment of lower Court passed in CC No 20 of 2010, dated 31-05-2012 be and hereby confirmed.

Dictated to Stenographer, transcribed and typed by her, corrected and pronounced by me

in the open Court, on this the 1st day of July, 2015.

FAC II ADDL, METROPOLITAN SESSIONS JUDGE,

HYDERABAD.

1 Fair Judgment in SC No 224 of 2013

IN THE COURT OF THE II ADDITIONAL METROPOLITAN SESSIONS

JUDGE:HYDERABAD

Present: Smt. S. Praveena, II Addl. Metropolitan Sessions Judge, Hyderabad.

WEDNESDAY, THE 1st DAY OF JULY, 2015

SESSIONS CASE NO. 224 OF 2013

(in PRC No. 48 OF 2012)

Committed by : Sri. V. Srinivasa Anjaneya Murthy, VIII Additional Chief Metropolitan

Magistrate, Hyderabad.

Crime Number and Police Station: 127 of 2012 of Rein Bazaar Police Station, Hyderabad.

Name and description of the accused : Shaik Sadiq @ Sadeq S/o Shaik Mahaboob Aged 34 years, Occ Auto Driver R/o H No 17-8- 371, Chawni Nade Ali Baig, Yakutpura, Hyderabad.

Name and description of the : The State of AP represented by the complainant Sub Inspector of Police, Rein Bazaar Police Station, Hyderabad.

Prosecution conducted by : Sri. Pratap Reddy, Public Prosecutor.

Accused defended by : Sri. S.S Nawaz, Advocate

Offence charged : Under sections 307 of IPC

Plea of the accused: Not Guilty

Finding of the Court: Not Guilty

Result : In the result, the accused is found not guilty of the offence punishable under Section 307 IPC and is acquitted under Section 235 (1) CrPC. Their bail bonds, if any, shall stand cancelled. The M.Os 1 and 2 shall be destroyed after expiry of appeal time.

J U D G M E N T

The then Sub-Inspector of Police, Rein Bazaar police station, Hyderabad filed charge-sheet against the accused-Shaik Sadeq @ Sadeq for the offence under Section 307 IPC alleging that;

The accused and P.Ws 1 and 2 are blood relatives. The accused and PW.1 are brothers PW.2 is the father of accused and PW.1. PW.1 along with his family is residing 2 Fair Judgment in SC No 224 of 2013 separately at Chappal Bazaar. Where as the accused is residing at Yakuthpura. The

PW.1 has only one daughter, PW.1 approached the accused and seeking his help in the arrangements of his daughter’s marriage, to which the accused refused and got annoyed and bore grudge against him. Since the PW.2 is residing with the accused, on 13-05-2012, PW.1 visited the house of the accused and had discussed with his father-

PW.2 about marriage arrangements and after having dinner, he along with PW.2 was sleeping on the terrace of the accused’s house. In the mid night at about 12.30 AM., on the intervening night of 13/14-05-2012, the accused came on terrace and wake up

PW.1 and started abusing him in filthy language stating that he blamed him in the family for not helping him in the marriage arrangements of his daughter, suddenly, became violent and picked up a wooden cot leg and beat him on his head with wooden cot leg with an intention to kill him. When PW.2 intervened to rescue PW.1, the accused also beat him with wooden cot leg due to which both P.Ws 1 and 2 received head injuries and fell unconscious. On coming to know about the incident, the Rakshak Team of

Rein Bazaar police station brought the injured to the police station and then took them to the hospital for treatment. On strength of PW.1 statement, a case is registered in

Crime No 127 of 2012 by the then Sub-Inspector of Police, Rein Bazaar Mohd Khaja and handed over the case file to the then Sub-Inspector J. Raja Shekar, for investigation. He visited the hospital and examined P.Ws 1 and 2 and recorded their

Section 161 CrPC statements. Then visited the scene of offence and conducted the panchanama for the observation of scene of offence and seized the incriminating material object from the scene of offence in the presence of panchayatdars namely

Mohd Farhan and Mohd Osman. Then the accused was apprehended and recorded his confessional statement. His investigation revealed that the accused, who is no other than brother of PW.1 and son of PW.2, committed the offence under Section 307 IPC and is liable for punishment.

2The VIII Additional Chief Metropolitan Magistrate, Hyderabad took cognizance of the offence under Section 307 IPC against the accused and registered the same as

PRC No 48 of 2012.

3 Fair Judgment in SC No 224 of 2013 3On appearance of the accused, copies of documents were furnished to them as contemplated under section 207 CrPC before VIII Additional Chief Metropolitan

Magistrate, Hyderabad. Since the offence punishable under Section 307 IPC is

exclusively triable by the Court of Sessions, the learned VIII Additional Chief

Metropolitan Magistrate has committed the case to the Sessions Division and the

Hon’ble Metropolitan Sessions Judge, Hyderabad made over the case to this Court for

disposal according to law.

4After receipt of the records from the Hon’ble Metropolitan Sessions Judge,

Hyderabad and on appearance of the accused, after hearing the learned Additional

Public Prosecutor and the defence counsel and on satisfying the prima-facie allegations, charge was framed against the accused for the offence under Section 307

IPC, read over and explained to them in his vernacular language for which, he denied the allegations and pleaded not guilty and claimed to be tried.

5In order to establish its case, the prosecution has examined three (3) witnesses out of them P.Ws 1 and 2 namely Shaik Basheer and Shaik Mahaboob are the injured persons, they are examined to speak about the manner in which the accused committed the offence against them. PW.3-J. Raja Shekar is the Investigating Officer, he examined about the investigation done by him and filing charge sheet.

6After closure of the prosecution side evidence, the accused is examined under

Section 313 CrPC explaining the incriminating circumstances in the evidence of prosecution witnesses to which he denied the same and reported that he has no defence witnesses.

7Heard the arguments of both sides.

8Now the point that arise for determination is Whether the prosecution has proved the offence under section 307 IPC against the accused beyond all reasonable doubt?

4 Fair Judgment in SC No 224 of 2013 9It is the case of the prosecution, that on 13-05-2012, while P.Ws 1 and 2 were sleeping on the terrace of accused’s house in the mid night at about 12.30 AM, the accused woke up PW.1 and abused him in filthy language saying that as to why he is blaming him among the family members for not assisting his daughter’s marriage arrangements, suddenly became violent and picked up a wooden cot leg and beat PW.1 on his head and caused head injury, when PW.2 intervened, the accused also beat him and caused bleeding injury. It is the case of the prosecution that the accused beat

P.Ws 1 and 2 with a wooden cot leg on their head with an intention to kill them, and thus he committed the offence under Section 307 IPC. But P.Ws 1 and 2 speak in their evidence that on that fateful day, while they were sleeping along with relatives outside the house of the accused, in the mid night, they were beaten by some unknown persons and then they fell unconscious and they regained conscious in the Osmania General

Hospital and they do not know who beat them. P.Ws 1 and 2 did not speak even a single word against the accused. Of course, P.Ws 1 and 2 are treated as hostile witnesses by the prosecution by treating them as hostile evidence, nothing is elicited from their cross as to why they have given a go-bye to the version in exhibits P.2 and

P.3. Therefore, the evidence of P.Ws 1 and 2, who are said to be the injured in this case is no-way useful to the prosecution to connect the accused with the alleged offence. It is further seen from the material on record, there is no other eye witness for the alleged offence.

10It is seen from the evidence of PW.3, who is the Investigating Officer, he speaks that on 14-05-2012, the then Sub-Inspector – Mohd Khaja, Rein Bazaar police station visited the hospital and recorded the statement of PW.1 and returned to police station and registered a case in Crime No 127 of 2012 for the offence under Section 307 IPC.

Then the case file was handed over to him for further investigation. During investigation, he examined the material witnesses – P.Ws 1 and 2 and conducted the panchanama at the scene of offence and seized Mo.1 in the presence of mediators, but the mediators are not examined by the prosecution. He further states that he has 5 Fair Judgment in SC No 224 of 2013 apprehended the accused with the help of his staff on 14-05-2012, arrested and produced the accused before the court for remanding him to judicial custody. The entire evidence of PW.3 speaks about investigation done by him and as such his evidence is not directly useful to the prosecution to connect the accused with which he is charged.

Therefore, absolutely there is no evidence on record to prove the prosecution case against the accused.

11In view of my foregoing discussions, I am of the view that the prosecution has miserably failed to prove its case against the accused beyond any reasonable doubt for the offence with which he is charged under section 307 IPC and as such, the accused is entitled for acquittal.

12In the result, the accused is found not guilty of the offence punishable under

Section 307 IPC and is acquitted under Section 235 (1) CrPC. Their bail bonds, if any, shall stand cancelled. The M.Os 1 and 2 shall be destroyed after expiry of appeal time.

Dictated to Stenographer, transcribed and typed by her, corrected and

pronounced by me in the open Court on this the 1st day of July, 2015.

FAC. II ADDL., METROPOLITAN SESSIONS JUDGE

HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR PROSECUTION:

PW.1 Shaik Basheer, complainant/injured.

PW.2Shaik Mahaboobi, Eye witness.

PW.3 J Raja Shekar, S.I of police, I.O and filed charge-sheet.

WITNESSES EXAMINED FOR DEFENCE: Nil

EXHIBITS MARKED FOR PROSECUTION:

Ex.P.1 Signature of PW1 on the complaint.

Ex.P.2 161 CrPC statement of PW1.

6 Fair Judgment in SC No 224 of 2013

Ex.P.3 161 CrPC statement of PW2.

Ex.P.4 F.I.R.

Ex.P.5 Observation cum seizure panchanama.

Ex.P.6 Seizure report

EXHIBITS MARKED FOR DEFENCE: NIL

MATERIAL OBJECTS MARKED:

M.O.1 is the Wooden cot leg M.O.2 is the Blood stained shirt

FAC II ADDL.METROPOLITAN SESSIONS JUDGE

HYDERABAD.

1

IN THE COURT OF THE II ADDL.METROPOLITAN SESSIONS JUDGE

AT : HYDERABAD.

Present : Smt. S. Praveena FAC II Addl. Metropolitan Sessions Judge, Hyderabad.

Dated this the 30th day of June, 2015.

Crl.R.P.No. 130 of 2015.

IN Crl MP No. 114/2015 in C.C.No. 346 of 2014 (On the file of IV Spl. Magistrate, Hyderabad.) Between:

Dodla Srinivas, s/o Tirupataiah Aged 32 yrs, Occ: Business R/o 12-8-388/6/2 Mettuguda, Secunderabad .....Revision Petitioner/Accused.

And

1) M/s Paras Finance Corporation rep by Mahaveer Kumar Jain At 6-1-871/7 Khairatabad Hyderabad

2) The state of Telangana Rep by Public Prosecutor, Hyderabad ….Respondent

This Crl. Revision Petition is coming for final hearing before me in the presence of Sri. M. Anand Kumar, Learned Counsel for the Revision Petitioner and upon perusing the case records and having stood over for consideration, this court delivered the following :-

: : O R D E R : :

This revision petition is filed by the revision petitioner-accused in Crl MP No 114 of 2015 in CC No 346 of 2014 on the file of IV Special Magistrate, Hyderabad assailing the order

dated 23-04-2015 passed by the learned IV Special Magistrate, Hyderabad in Crl MP No 114 of

2015 in CC No 346 of 2014. Whereby and where under, the learned IV Special Magistrate dismissed the miscellaneous application filed under section 45 of Indian Evidence Act.

2The facts, in brief, of the case giving raise to file in this revision petition by the revision petitioner-accused against the 1st respondent herein is the complainant in CC No 346 of 2014. The 1st respondent filed the complaint against the revision petitioner-accused alleging, interalia, that the revision petitioner-accused issued a cheque-exhibit P.4 towards discharge of 2 debt due to him, and he presented the said cheque for collection but the said cheque came to be bounced. Thereupon, he issued a statutory notice calling upon the revision petitioner-accused to pay the bounced cheque amount. The revision petitioner-accused did not choose to pay the bounced cheque amount despite the statutory notice. Therefore, the 1st respondent-complainant filed the complaint under Section 138 of Negotiable Instruments Act before the trial court.

3During the trial, the revision petitioner-accused moved Crl MP No 114 of 2015 to send the disputed cheque which is exhibited as Ex.P.4 to FSL for determining the age of ink.

The 1st respondent resisted the said petition by filing counter. The learned IV Special Magistrate considering the material brought on record and on hearing the learned counsel appearing for both the parties came to the conclusion that there is no scientific method available to find exact age of ink and thereby proceeded to dismiss the petition Crld MP No 114 of 2015 by order dated 23-04- 2015. Hence, this revision petition.

4Heard learned counsel appearing for the revision petitioner-accused and learned counsel for the 1st respondent-complainant.

5It is contended by the learned counsel for the revision petitioner-accused that the trial court has failed to take note that latest technology has been developed to know the age of ink and this aspect fell for consideration before Madurai Bench of High Court of Madras in 2011

CRI. L. J. 4152 (between A. Sivagnana Pandian Vs M. Ravichandran), wherein it has been held that “various scientific avenues are available for finding out age of ink in a document”, and therefore, the order impugned in the revision cannot be sustained, and consequently, miscellaneous application moved by the revision petitioner-accused before the trial court deserves to be allowed. A further contention has been advanced that the Judgment of Madras

High Court reported in 2010 CRI.L.J. 2917 (between R. Jagadeesan Vs N. Ayyasamy and another on which the reliance has been placed by the trial Judge has been considered by the

Madurai Bench of High Court of Madras in subsequent decision 2011 Crl.L.J. 4152 and held the document can be sent to Forensic Science expert to ascertain the age of ink in view of the availability of various scientific avenues.

3 6Per contra, the learned counsel appearing for the 1st respondent-complainant submits that the very revision itself is not maintainable in view of sub section (2) of section 397 CrPC.

According to learned counsel for 1st respondent-complainant, the order impugned in the revision petition is a interlocutory order and therefore, the revision is barred under section 397 (2) CrPC.

In support of his submission, a reliance has been placed on the following decisions; (1) 2010 CRI. L. J. 2917 (between R. Jagadeesan Vs N. Ayyasamy & Anr).

(2) SCC 2001 (Crl.) P. 1254 (between M/s Bhaskar Industries Ltd Vs M/s Bhiwani Denim & Apparels Ltd., & Others).

(3) 2007 CRI. L. J. 4100 (between T. Stanes and company Ltd. Coimbatore Vs Thiru, M. G. Mohamed Iqbal and Anr).

In response to the submissions made by the learned counsel for the 1st respondent-complainant, it is contended by the learned counsel for the revision petitioner-accused that the order impugned in revision petition cannot be termed as interlocutory order. Since any opinion of FSL on the age of ink has bearing on the final conclusion to be arrived at in the case.

7It is well settled that whether any order is interlocutory or not cannot be decided by merely looking at the order or merely because the order was passed at the interlocutory stage.

The safe test is that if the contention of the revision petitioner-accused, who moved the superior court in revision as against the order under challenge is upheld, would the criminal proceedings as a whole culminate, if they would, then the order is not interlocutory in spite of the fact that it was passed during any interlocutory stage. Even if the opinion of FSL is obtained, that opinion does not terminate the proceedings in CC No 346 of 2014. Therefore, I am of the view that the order impugned in revision petition is interlocutory order which squarely comes within the purview of Section 397 (2) of CrPC and accordingly, this revision petition is liable to be dismissed.

8In the result, the petition is dismissed.

Dictated to Stenographer, transcribed and typed to her, corrected and pronounced by me

in open court on this the 30th day of June, 2015.

FAC II ADDL. METROPOLITAN SESSIONS JUDGE:

HYDERABAD

1

IN THE COURT OF THE II ADDL.METROPOLITAN SESSIONS JUDGE

AT : HYDERABAD.

Present : Smt. S. Praveena FAC II Addl. Metropolitan Sessions Judge, Hyderabad.

Dated this the 30th day of June, 2015.

Crl.R.P.No. 129 of 2015.

IN Crl MP No. 112/2015 in C.C.No. 344 of 2014 (On the file of IV Spl. Magistrate, Hyderabad.) Between:

Dodla Srinivas, s/o Tirupataiah Aged 32 yrs, Occ: Business R/o 12-8-388/6/2 Mettuguda, Secunderabad .....Revision Petitioner/Accused.

And

M/s Paras Finance Corporation rep by Mahaveer Kumar Jain At 6-1-871/7 Khairatabad Hyderabad The state of Telangana Rep by Public Prosecutor, Hyderabad ….Respondent

This Crl. Revision Petition is coming for final hearing before me in the presence of Sri. M. Anand Kumar, Learned Counsel for the Revision Petitioner and upon perusing the case records and having stood over for consideration, this court delivered the following :-

: : O R D E R : :

This revision petition is filed by the revision petitioner-accused in Crl MP No 112 of 2015 in CC No 344 of 2014 on the file of IV Special Magistrate, Hyderabad assailing the order

dated 23-04-2015 passed by the learned IV Special Magistrate, Hyderabad in Crl MP No 112 of

2015 in CC No 344 of 2014. Whereby and where under, the learned IV Special Magistrate dismissed the miscellaneous application filed under section 45 of Indian Evidence Act.

2The facts, in brief, of the case giving raise to file in this revision petition by the revision petitioner-accused against the 1st respondent herein is the complainant in CC No 344 of 2014. The 1st respondent filed the complaint against the revision petitioner-accused alleging, interalia, that the revision petitioner-accused issued a cheque-exhibit P.4 towards discharge of debt due to him, and he presented the said cheque for collection but the said cheque came to be 2 bounced. Thereupon, he issued a statutory notice calling upon the revision petitioner-accused to pay the bounced cheque amount. The revision petitioner-accused did not choose to pay the bounced cheque amount despite the statutory notice. Therefore, the 1st respondent-complainant filed the complaint under Section 138 of Negotiable Instruments Act before the trial court.

3During the trial, the revision petitioner-accused moved Crl MP No 112 of 2015 to send the disputed cheque which is exhibited as Ex.P.4 to FSL for determining the age of ink.

The 1st respondent resisted the said petition by filing counter. The learned IV Special Magistrate considering the material brought on record and on hearing the learned counsel appearing for both the parties came to the conclusion that there is no scientific method available to find exact age of ink and thereby proceeded to dismiss the petition Crld MP No 112 of 2015 by order dated 23-04- 2015. Hence, this revision petition.

4Heard learned counsel appearing for the revision petitioner-accused and learned counsel for the 1st respondent-complainant.

5It is contended by the learned counsel for the revision petitioner-accused that the trial court has failed to take note that latest technology has been developed to know the age of ink and this aspect fell for consideration before Madurai Bench of High Court of Madras in 2011

CRI. L. J. 4152 (between A. Sivagnana Pandian Vs M. Ravichandran), wherein it has been held that “various scientific avenues are available for finding out age of ink in a document”, and therefore, the order impugned in the revision cannot be sustained, and consequently, miscellaneous application moved by the revision petitioner-accused before the trial court deserves to be allowed. A further contention has been advanced that the Judgment of Madras

High Court reported in 2010 CRI.L.J. 2917 (between R. Jagadeesan Vs N. Ayyasamy and another on which the reliance has been placed by the trial Judge has been considered by the

Madurai Bench of High Court of Madras in subsequent decision 2011 Crl.L.J. 4152 and held the document can be sent to Forensic Science expert to ascertain the age of ink in view of the availability of various scientific avenues.

3 6Per contra, the learned counsel appearing for the 1st respondent-complainant submits that the very revision itself is not maintainable in view of sub section (2) of section 397 CrPC.

According to learned counsel for 1st respondent-complainant, the order impugned in the revision petition is a interlocutory order and therefore, the revision is barred under section 397 (2) CrPC.

In support of his submission, a reliance has been placed on the following decisions; (1) 2010 CRI. L. J. 2917 (between R. Jagadeesan Vs N. Ayyasamy & Anr).

(2) SCC 2001 (Crl.) P. 1254 (between M/s Bhaskar Industries Ltd Vs M/s Bhiwani Denim & Apparels Ltd., & Others).

(3) 2007 CRI. L. J. 4100 (between T. Stanes and company Ltd. Coimbatore Vs Thiru, M. G. Mohamed Iqbal and Anr).

In response to the submissions made by the learned counsel for the 1st respondent-complainant, it is contended by the learned counsel for the revision petitioner-accused that the order impugned in revision petition cannot be termed as interlocutory order. Since any opinion of FSL on the age of ink has bearing on the final conclusion to be arrived at in the case.

7It is well settled that whether any order is interlocutory or not cannot be decided by merely looking at the order or merely because the order was passed at the interlocutory stage.

The safe test is that if the contention of the revision petitioner-accused, who moved the superior court in revision as against the order under challenge is upheld, would the criminal proceedings as a whole culminate, if they would, then the order is not interlocutory in spite of the fact that it was passed during any interlocutory stage. Even if the opinion of FSL is obtained, that opinion does not terminate the proceedings in CC No 344 of 2014. Therefore, I am of the view that the order impugned in revision petition is interlocutory order which squarely comes within the purview of Section 397 (2) of CrPC and accordingly, this revision petition is liable to be dismissed.

8In the result, the petition is dismissed.

Dictated to Stenographer, transcribed and typed to her, corrected and pronounced by me

in open court on this the 30th day of June, 2015.

FAC II ADDL. METROPOLITAN SESSIONS JUDGE:

HYDERABAD