Smt S.Saritha

1

IN THE COURT OF THE I ADDL. JUDL.MAGISTRATE OF FIRST CLASS

AT NIZAMABAD

Present: Smt. S.Sarita, I Addl. Judl. Magistrate of First Class, Nizamabad.

Monday the 26th day of April, 2017.

CC. No. 930/2013

Between :-

Mettu Shankar S/o Sayanna, 43 years, Pvt. Employee R/o Amberpeth,

Nizamabad...Complainant

And

Pale Venugopal Reddy S/o Ganga Reddy, 42 years, Business Prop. Vijay Sai Hire Purchase R/o Flat No.403,

Baswa Residency, Near Baswa Garden ..Accused

FunctionHall,Vinayaknagar, Nizamabad.

This case was coming before me on 20.4.2017 for final hearing in the presence of Sri Shive Mangal Singh, Sri D.Nageshwer, Advocate for the complainant and Sri G.V.Krupaker Reddy, Advocate for the accused and having stood over till this day for consideration this court delivered the following :-

JUDGMENT

1.This Calendar Case is filed by the complainant against accused for the offence punishable U/Sec.138 of Negotiable

Instruments Act (for brevity, “N.I.Act”).

2.The brief averments of the complaint are that on 15.11.2012 the complainant gave an amount of Rs.4 Lakhs to accused as hand loan at the complainant's residence in the presence of Lws.1 and 2 namely Mettu Sailu and Kolkat Tukaram and the accused gave the complainant a cheque of Bank of India,

Br. Nizamabad dtd:15.11.2012 bg.no. 010306 for the said amount, drawn in the name of complainant by way of security, towards repayment of the said amount and due discharge of legal debt 2 and requested the complainant to present the same for collection after one month, so that by that time accused will make arrangements for clearing the same. In view of the close relationship the complainant did not obtain from the accused any pronote or acknowledgement, evidencing the payment of the said amount. After one month the complainant asked accused for repayment of the said loan amount and accused has asked the complainant to wait for one more month, hence the complainant was forced to wait for some more time for getting back the said amount. After waiting for one more month, the complainant sent the said cheque for collection to the accused bank, through his bank i.e. Corporation Bank, Br. Nizamabad but, the same was dishonoured as “Funds Insufficient” in the account of accused.

Later the complainant got issued a legal notice dt:12.2.2013 to the accused for repayment of said loan amount covered by the said cheque within (15) days of receipt of above notice and the said notice was received by the accused on 15.2.2013 an dneither he repay the said cheque amount to the complainant nor he gave any reply to it, as such the complainant has filed this complaint.

Thus, the accused has committed an offence under Section 138 of Negotiable Instruments Act. Hence, the complaint.

3.Sworn statement of the complainant was filed and the complaint was taken on file for the offence U/Sec.138 of

N.I.Act against the accused. On appearance of the accused

before the court, he was furnished with copies of case

documents as required U/Sec.207 of Cr.PC. When the accused was examined U/Sec.251 of Cr.PC regarding the accusation made against him in the complaint, he denied the same and pleaded not guilty.

3

4.To substantiate the case of the complainant, the complainant got examined himself as PW.1 and also examined

PW.2 and got marked Exs. P1 to P6. The accused examined himself as DW1.

5.Ex.P1 is the original cheque bg.no.010306, dated 15.11.2012,

Ex.P2 is the original deposit voucher, dated:30.1.2013, Ex.P3 is the Cheque return memo, dated:2.2.2013, Ex.P4 is the office copy of Legal notice, dated:12.2.2013, Ex.P5 is the courier counter file, dated:15.2.2013 and Ex.P6 is the original acknowledgment, dated:15.2.2013.

6.After completion of the complainant's side evidence, accused was examined U/Sec.313 Cr.PC., to explain the incriminating circumstances appearing against him in oral and documentary evidence. The accused denied the evidence and reported defence evidence.

7.Heard both the sides.

8.On careful consideration, the point that arises for effective adjudication before this court is:-

Whether the complainant has established his case against the accused for the offence under Sec.138 of NI Act beyond all reasonable doubt?

Point:-

9.Before adverting to the rival contentions, it is apt to quote the relevant provision of the Act for better appreciation of evidence on record and Section 138 NI Act connotes as follows:

“138 Dishonour of cheque for insufficiency etc., of funds in the account:- Where are cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that 4 account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punishment 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:

Provided that nothing contained in this section shall apply unless:

a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, which ever is earlier;

b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within one month of the receipt of information by him from the bank regarding the return of the cheque as unpaid;

and

c) the drawer of such cheque fails to make the payment of the said amount of money, to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice;

Explanation: For the purpose of this section, “debt or other liability” means a legally enforceable debt or other liability.”

10.On a close scrutiny of the above said sections, it is manifest that the offence under section 138 of NI Act can be completed only with the concatenation of a number of acts i.e, 1) drawing of the cheque on an account maintained by the drawer;

2) presentation of the cheque to the bank within the period of 6 months from the date of its issuance: 3) returning the cheque unpaid by the drawee bank; 4) giving notice in writing to the 5 drawer of the cheque demanding payment of the cheque amount within one month from the date of its returning; and 5) failure of the drawer to make payment within 15 days of the receipt of the notice. If the complainant fails to comply any one of the conditions supra, the accused is entitled to acquittal.

11.The essential ingredients of section 138 are that there must be a debt or other liability legally enforceable, that a cheque must be given by the debtor in favour of the creditor in discharge of the said debt or liability, in whole or in part and that cheque should be returned by the bank for insufficient of funds to the credit or the debtor to honour the cheque.

12.In the present case on hand the evidence of PW.1 categorically goes to show that PW.1 has followed all the guidelines that is contemplated under sec.138 of NI.Act and that complainant got himself examined as PW.1 and got marked Ex.P1 to P6 in support of his documentary evidence. The oral evidence of PW.1 coupled with documentary evidence under Ex.P1 to P6 goes to show that PW.1 has followed all guidelines contemplated

U/Sec.138 of NI.Act to attract the ingredients for the offence

U/Sec.138 of NI.Act and the complainant has duly discharged himself from proving the preliminary burden that is cast upon him to prove that Ex.P1 cheque was issued by the accused in discharge of legally enforceable debt and now the burden of proving the case that the accused did not issued Ex.P1 to the complainant is shifted on the accused. Admittedly, the complainant has followed the procedure that is contemplated

U/Sec.138 of NI.Act by presenting Ex.P1 cheque in his bank and after it was dishonoured for reason “funds in sufficient”, PW.1 has sent the legal notice to accused waited for stipulated period 6 as prescribed under the act and when the amount under Ex.P1 cheque was not paid, finally PW.1 filed this complaint.

13.Now the point that arises is__

Whether Ex.P1 cheque was issued for legally enforceable debt liability or not by the accused to PW.1?

14.Sec.138 of NI.Act attracts only if the cheque is issued for discharging of legally enforceable debt or other liability.

15.In this case, admittedly on perusal of Ex.P1 goes to show that it was issued on 15.11.2012 for Rs.4,00,000/-.

16.In the present case on hand, the accused had admitted his signature on Ex.P1 cheque but, the accused has denied to have issued Ex.P1 cheque to complainant. It is the contention of accused that he is issued cheque to one one Sailu in the year 2007 and that the accused repaid the amount to him and complainant has misused the blank cheque which was given by accused to Sailu for wrongful gain. The plea taken by the accused is that he borrowed money from Sailu to that effect he issued a blank signed cheque and thereafter the accused repaid the amount and to substantiate this contention, accused got examined himself as DW.1. On perusal of ocular evidence of

DW.1 he has deposed that he obtained loan of Rs.4,00,000/- from Sailu and to that effect he issued four blank signed cheques to he said Sailu and the accused repaid the said amount to said Sailu in the year 2007. Accused as DW.1 further testified that he asked the said Sailu to return four blank cheques issued by him after repaying the amount but he told the accused that cheques issued by accused are not traceable and promised to return the same after some time. It is further 7 evidence of accused as DW.1 that the said Sailu has issued receipt to accused but the said receipt is not traceable.

17.Accused as DW.1 has denied to have acquaintance with the complaint and also denied about transactions of borrowing of amount that took place and also denied to have issued cheque to the complainant under Ex.P1. The plea taken by DW.1 in his oral evidence before this court was not at all taken as plea of defence when the accused was examined by this court under

Sec.251 Cr.PC nor the accused has taken plea that Sailu issued receipt to the accused after he made the alleged repayment to him. In the cross-examination of PW.1 the accused nowhere suggested to PW.1 during his cross examination that Ex.P1 cheque is one of the cheques that was alleged to have been given by the accused to Sailu. There is no suggestion from the side of accused to PW.1 that alleged receipt that was issued by the Sailu to the accused in the year 2007. In such case the evidence of

DW.1 to that effect deserves no appreciation of this court as

DW.1 has taken the said plea for the first time in his oral evidence without raising the said plea at the time of his initial examination by this court under Sec.251 Cr.PC. Even the plea taken by the accused in his oral evidence with regard to the alleged receipt issued by the father accused and also that he issued cheque to Sailu was not at all pleaded by the accused when he was examined U/Sec.313 Cr.PC.

18.As per the evidence of DW.1 he has issued four blank signed cheques to the Sailu and that PW.1 has misused one of the cheques. If really that was the case, nothing prevented to initiate proceedings against said Sailu immediately after receiving notice from the complainant.

8

19.There is no dispute with regard to Ex.P1 that it belongs to the accused and also that signature on Ex.P1 belongs to the accused. In the present case on hand, the counsel for accused has contended that preponderance of probabilities is sufficient in absence of proof. The learned counsel for accused has rightly pointed that the accused may discharge the burden and prove his case on the basis of preponderance of probabilities. The point of law which arises from various authorization even in the cases when the burden is on the accused the proof that is required to be given by him cannot be equated with the defence and character of proof, which normally rests on the complainant.

While the prosecution has to prove its case beyond reasonable doubt, the accused may discharge his burden and prove his case on the basis of preponderance of probabilities.

20.The accused has left the question unanswered as to why the accused kept quite till receipt of demand notice from PW.1 when Ex.P1 was said to have been given by him to one Sailu and not to PW.1. The bare word is not enough as it is necessary for the accused to show that his explanation is so probable that a prudent man ought to have to in the circumstances of the cases accept it. It necessarily fallows that if the case suggested by the accused leaves no question unanswered and unexplained even in the probabilities and in certain aspects is entirely unbelievable then it cannot be said that even on a preponderance of probabilities, he discharged his burden. In this case, accused has not discharged the burden on the basis of preponderance of probabilities which was based on the defence taken by the accused. The defence taken by the accused is highly improbable to make a prudent man to believe. The defence of the accused is total denial of the case of prosecution. Though, the learned 9 counsel for the accused tried to elicit that Ex.P1 was given to one Sailu in blank and not to PW.1 and that PW.1 filed this false case by misusing Ex.P1 was categorically denied by PW.1. Thus, the defence taken by the accused is not believable and not inspiring the confidence of this court and same is not substantiated with any substantial piece of evidence to support his version. If really that was the case that Ex.P1 cheque was not issued to PW.1, then nothing prevented the accused from taking legal action against the complainant and silence on the part of accused dross and adverse inference U/Sec.114 of Indian

Evidence Act. Except giving bald suggestion to PW.1 in cross examination nothing material was elicited from the mouth of

PW.1 and same is not sufficient to rebut the presumption

U/Sec.138 of NI.Act and the said suggestions is not absolve the accused from criminal liability for the offence U/Sec.139 of

NI.Act.

21.Further, the learned counsel for accused contended that

PW.1 does not have the capacity to learn money and also contended PW.1 does not have sufficient income and the question of lending huge amount to the accused does not arise. Adverting to the said contention of the accused it is pertinent to see that the question of having capacity to earn is secondary in the cases pertaining to NI.Act. When any person is income tax assessee such person is duty bound to show the money lent to others in his income tax return but, in this case on hand PW.1. It is not known whether the PW.1 is income tax assessee or not and in such case it is difficult to ascertain earning capacity of PW.1. Merely because PW.1 failed to prove his income capacity, the case of

PW.1 merely on the sole ground cannot be thrown away.

10

22.The accused has failed to prove his contention that he issued Ex.P1 cheque to Sailu and not to the PW.1. Thus, the accused has failed to rebut the presumption U/Sec.138 of

NI.Act. The version of accused is not believable and not inspiring the confidence of this court as presumption is got U/Sec.138 of

NI.Act that cheque was issued in discharging of legally enforceable debt by the accused under Ex.P1 and when Ex.P1 was presented the same was dishonoured and issuance of legal notice and the same was received by the accused but, failed to give reply nor repay the amount and simply kept quite. The accused has also failed to explain the circumstances as to how Ex.P1 went into the hands of PW.1. Therefore, the complainant has proved his case that cheque was issued in view of subsisting debt.

23.In the result, the accused is found guilty for the offence punishable Under Section 138 of Negotiable Instruments Act.

Typed to my dictation, corrected and pronounced by me in open court, this the 24th day of April, 2017.

I Addl. Judl.Magistrate of First Class, Nizamabad. In regard to the quantum of sentence:

24.The accused has submitted that he is residing at

Adarshnagar, Nizamabad, he is doing private work, he is having old aged parents, his family is completely dependent on his earnings, due to losses in business he could not clear the debt, resulting to birth of this case and he prayed this court to take lenient view and imposed only fine. Accused also submitted that the matter is settled in between him and complainant and a joint memo dt:24.4.2017 was filed wherein he agreed to pay Rs.2

Lakhs towards full and final settlement and till now he has paid

Rs.92,500/- (Rupees Ninety Two Thousands Five Hundred Only) out of Rs.2 Lakhs and that he is ready to pay the balance amout 11 towards compensation if give time of six (6) months. Perused the record and it is observed that memo is filed dt:24.4.2017 showing payment made by accused to the complainant for

Rs.92,500/-.

25.Upon considering the submission made by the accused and counsel for accused, this is not a fit case to invoke the provisions of Probation of Offenders Act, as invoking the provisions of probation of offenders Act, the purpose of introducing

Negotiable instrument Act would be defeated.

26.The core of this dispute is money, the complainant has invoked the provisions of Negotiable Instruments Act, is to get the accused punished, the accused as a clear intention to repay the debt has approached the complainant, on the other hand the complainant has also agreed to the proposal, predominantly the core subject of the disputes is been resolved, the offence committed by the accused is non serious offence, will not have any negative impact on society at large or not against the interest of public at large, the punishment imposed by this court would have negative impact on his family, the mitigating circumstances compel this court to take a lenient view, no prejudice and injustice would be caused to complainant if lenient view is taken.

This court is relying on the judgment of Hon'ble Apex

Court KAUSHALYA DEVI MASSADND Vs ROOPKISHORE

KHORE.1 :-

It was held in para 11: - Having considered the submissions made on behalf of the parties, we are of the view that the gravity of a complaint under the Negotiable Instruments Act cannot be equated with an 1. 2011 (4) SCC 593, 2011 (2) SCC (Cri) 472.

12 offence under the provisions of the Penal Code, 1860 or other criminal offences. An offence under Section 138 of the Negotiable Instruments Act, 1881, is almost in the nature of a civil wrong which has been given criminal overtones.

27.Therefore, in the facts and circumstances of the present case, this court deems it appropriate to impose compensation to be payable to the complainant by accused. It is needless to say the complainant shall have liberty to get the compensation awarded to him by taking recourse under section 421 Criminal

Procedure Code on failure of accused to pay the compensation within six months from today i.e., 26.4.2017.

28.In the result, the accused is found guilty for the offence punishable Under Section 138 of Negotiable Instruments Act.

The accused is convicted Under Section 255 (2) Criminal

Procedure Code and and he is sentenced toundergo simple imprisonment till rising of the court and he is directed to pay a fine of Rs. 1,000/- (Rupees One thousand only), in default of payment of fine, the accused shall suffer simple Imprisonment for a period of one (1) month. The accused is also directed to pay compensation of Rs.1,07,500/- (Rupees One Lakh Seven

Thousands Five Hundred Only) within six months from today i.e., 26.4.2017, in default of payment of compensation, the accused shall suffer simple Imprisonment for a period of six (6) months.

29.The accused is directed to execute bail bonds for

Rs.5,000/- with one surety as required under section 437-A of

Criminal Procedure Code, to appear before the Appellant Court.

30.Accused is informed about his right of appeal as per the directions of Hon'ble High Court of A.P., as held in the Judgment of Shaik Baba Vs. State of A.P. and the accused is also 13 informed that if he don't have means to engage an advocate to prefer an appeal, he is at liberty to approach District Legal

Service Authority, Nizamabad for free legal aid.

Typed to my dictation, corrected and pronounced by me in the open Court, this the 26th day of April, 2017.

I Addl. Judicial Magistrate of First Class Nizamabad.

APPENDIX OF EVIDENCE

WITNESS EXAMINED

FOR PROSECUTION: FOR DEFENCE:

PW.1: Mettu Shankar DW.1 Pala Venugopal Reddy

PW.2: Mettu Sailu

DOCUMENTS MARKED

FOR PROSECUTION:

Ex.P1 Original cheque bg.no.010306, dated 15.11.2012.

Ex.P2 Original deposit voucher, dated:30.1.2013.

Ex.P3 Cheque return memo, dated:2.2.2013.

Ex.P4 Office copy of Legal notice, dated:12.2.2013.

Ex.P5 Courier counter file, dated:15.2.2013.

Ex.P6 Original acknowledgment, dated:15.2.2013.

FOR DEFENCE:

Nil

I Addl.J.F.C.M.

1

IN THE COURT OF THE I ADDL. JUDL.MAGISTRATE OF FIRST CLASS

AT NIZAMABAD

Present: Smt. S.Sarita, I Addl. Judl. Magistrate of First Class, Nizamabad.

Monday the 26th day of April, 2017.

CC. No. 994/2013

Between :-

Mettu Arun Kumar S/o Sailu, 26years,PrivateEmployee

R/o Adarshnagar, Nizamabad. ..Complainant

And

Pala Venugopal Reddy S/o Ganga Reddy, 42 years, Business Prop. Vijay Sai Hire Purchase R/o Flat No.403,

Baswa Residency, Near Baswa Garden ..Accused

FunctionHall,Vinayaknagar, Nizamabad.

This case was coming before me on 20.4.2017 for final hearing in the presence of Sri D.Nageshwar, Advocate for the complainant and Sri G.V.Krupaker Reddy, Advocate for the accused and having stood over till this day for consideration this court delivered the following :-

JUDGMENT

1.This Calendar Case is filed by the complainant against accused for the offence punishable U/Sec.138 of Negotiable

Instruments Act (for brevity, “N.I.Act”).

2.The brief averments of the complaint are that on 15.12.2012 the complainant gave an amount of Rs.4 Lakhs to accused as hand loan at the complainant's residence in the presence of Lws.1 and 2 namely Mettu Abbaiah and Kolkat

Tukaram and the accused gave the complainant a cheque of Bank of India, Br. Nizamabad dtd:15.12.2012 bg.no. 030143 for the said amount, drawn in the name of complainant by way of security, towards repayment of the said amount and due 2 discharge of legal debt and requested the complainant to present the same for collection after one month, so that by that time accused will make arrangements for clearing the same. In view of the close relationship the complainant did not obtain from the accused any pronote or acknowledgement, evidencing the payment of the said amount. After one month the complainant asked accused for repayment of the said loan amount and accused has asked the complainant to wait for one more month, hence the complainant was forced to wait for some more time for getting back the said amount. After waiting for one more month, the complainant sent the said cheque for collection to the accused bank, through his bank i.e. ICICI Bank, Br. Nizamabad but, the same was dishonoured as “Funds Insufficient” in the account of accused. Later the complainant got issued a legal notice dt:11.2.2013 to the accused for repayment of said loan amount covered by the said cheque within (15) days of receipt of above notice and the said notice was received by the accused on 13.2.2013 and neither he repay the said cheque amount to the complainant nor he gave any reply to it, as such the complainant has filed this complaint. Thus, the accused has committed an offence under Section 138 of Negotiable Instruments Act.

Hence, the complaint.

3.Sworn statement of the complainant was filed and the complaint was taken on file for the offence U/Sec.138 of

N.I.Act against the accused. On appearance of the accused

before the court, he was furnished with copies of case

documents as required U/Sec.207 of Cr.PC. When the accused was examined U/Sec.251 of Cr.PC regarding the accusation made against him in the complaint, he denied the same and pleaded not guilty.

3

4.To substantiate the case of the complainant, the complainant got examined himself as PW.1 and also examined

PW.2 and got marked Exs. P1 to P5. The accused examined himself as DW1.

5.Ex.P1 is the original cheque bg.no.030143, dated 15.12.2012,

Ex.P2 is the deposit voucher, dated:1.2.2013, Ex.P3 is the Cheque return memo, dated:1.2.2012, Ex.P4 is the Legal notice,

dated:11.2.2013 and Ex.P5 is the 2 number of Air State Couriers

receipt dated 13.2.2013.

6.After completion of the complainant's side evidence, accused was examined U/Sec.313 Cr.PC., to explain the incriminating circumstances appearing against him in oral and documentary evidence. The accused denied the evidence and reported defence evidence.

7.Heard both the sides.

8.On careful consideration, the point that arises for effective adjudication before this court is:-

Whether the complainant has established his case against the accused for the offence under Sec.138 of NI Act beyond all reasonable doubt?

Point:-

9.Before adverting to the rival contentions, it is apt to quote the relevant provision of the Act for better appreciation of evidence on record and Section 138 NI Act connotes as follows:

“138 Dishonour of cheque for insufficiency etc., of funds in the account:- Where are cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt 4 or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punishment 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:

Provided that nothing contained in this section shall apply unless:

a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, which ever is earlier;

b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within one month of the receipt of information by him from the bank regarding the return of the cheque as unpaid;

and

c) the drawer of such cheque fails to make the payment of the said amount of money, to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice;

Explanation: For the purpose of this section, “debt or other liability” means a legally enforceable debt or other liability.”

10.On a close scrutiny of the above said sections, it is manifest that the offence under section 138 of NI Act can be completed only with the concatenation of a number of acts i.e, 1) drawing of the cheque on an account maintained by the drawer;

2) presentation of the cheque to the bank within the period of 6 months from the date of its issuance: 3) returning the cheque unpaid by the drawee bank; 4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount 5 within one month from the date of its returning; and 5) failure of the drawer to make payment within 15 days of the receipt of the notice. If the complainant fails to comply any one of the conditions supra, the accused is entitled to acquittal.

11.The essential ingredients of section 138 are that there must be a debt or other liability legally enforceable, that a cheque must be given by the debtor in favour of the creditor in discharge of the said debt or liability, in whole or in part and that cheque should be returned by the bank for insufficient of funds to the credit or the debtor to honour the cheque.

12.In the present case on hand the evidence of PW.1 categorically goes to show that PW.1 has followed all the guidelines that is contemplated under sec.138 of NI.Act and that complainant got himself examined as PW.1 and got marked Ex.P1 to P5 in support of his documentary evidence. The oral evidence of PW.1 coupled with documentary evidence under Ex.P1 to P5 goes to show that PW.1 has followed all guidelines contemplated

U/Sec.138 of NI.Act to attract the ingredients for the offence

U/Sec.138 of NI.Act and the complainant has duly discharged himself from proving the preliminary burden that is cast upon him to prove that Ex.P2 cheque was issued by the accused in discharge of legally enforceable debt and now the burden of proving the case that the accused did not issued Ex.P1 to the complainant is shifted on the accused. Admittedly, the complainant has followed the procedure that is contemplated

U/Sec.138 of NI.Act by presenting Ex.P1 cheque in his bank and after it was dishonoured for reason “funds in sufficient”, PW.1 has sent the legal notice to accused waited for stipulated period as prescribed under the act and when the amount under Ex.P1 cheque was not paid, finally PW.1 filed this complaint.

6

13.Now the point that arises is__

Whether Ex.P1 cheque was issued for legally enforceable debt liability or not by the accused to PW.1?

14.Sec.138 of NI.Act attracts only if the cheque is issued for discharging of legally enforceable debt or other liability.

15.In this case, admittedly on perusal of Ex.P1 goes to show that it was issued on 15.12.2012 for Rs.4,00,000/-.

16.In the present case on hand, the accused had admitted his signature on Ex.P1 cheque but, the accused has denied to have issued Ex.P1 cheque to complainant. It is the contention of accused that he is issued cheque to one one Sailu in the year 2005 and that the accused repaid the amount to him and complainant has misused the blank cheque which was given by accused to Sailu for wrongful gain. The plea taken by the accused is that he borrowed money from Sailu to that effect he issued a blank signed cheque and thereafter the accused repaid the amount and to substantiate this contention, accused got examined himself as DW.1. On perusal of ocular evidence of

DW.1 he has deposed that he obtained loan of Rs.4,00,000/- from Sailu and to that effect he issued four blank signed cheques to he said Sailu and the accused repaid the said amount to said Sailu in the year 2007. Accused as DW.1 further testified that he asked the said Sailu to return four blank cheques issued by him after repaying the amount but he told the accused that cheques issued by accused are not traceable and promised to return the same after some time. It is further evidence of accused as DW.1 that the said Sailu has issued receipt to accused but the said receipt is not traceable.

7

17.Accused as DW.1 has denied to have acquaintance with the complaint and also denied about transactions of borrowing of amount that took place and also denied to have issued cheque to the complainant under Ex.P1. The plea taken by DW.1 in his oral evidence before this court was not at all taken as plea of defence when the accused was examined by this court under

Sec.251 Cr.PC nor the accused has taken plea that Sailu issued receipt to the accused after he made the alleged repayment to him. In the cross-examination of PW.1 the accused nowhere suggested to PW.1 during his cross examination that Ex.P1 cheque is one of the cheques that was alleged to have been given by the accused to Sailu. There is no suggestion from the side of accused to PW.1 that alleged receipt that was issued by the Sailu to the accused in the year 2007. In such case the evidence of

DW.1 to that effect deserves no appreciation of this court as

DW.1 has taken the said plea for the first time in his oral evidence without raising the said plea at the time of his initial examination by this court under Sec.251 Cr.PC. Even the plea taken by the accused in his oral evidence with regard to the alleged receipt issued by the father of accused and also that he issued cheque to Sailu was not at all pleaded by the accused when he was examined U/Sec.313 Cr.PC.

18.As per the evidence of DW.1 he has issued four blank signed cheques to the Mettu Sailu and that PW.1 has misused one of the cheques. If really that was the case, nothing prevented to initiate proceedings against said Sailu immediately after receiving notice from the complainant.

19.There is no dispute with regard to Ex.P1 that it belongs to the accused and also that signature on Ex.P1 belongs to the 8 accused. In the present case on hand, the counsel for accused has contended that preponderance of probabilities is sufficient in absence of proof. The learned counsel for accused has rightly pointed that the accused may discharge the burden and prove his case on the basis of preponderance of probabilities. The point of law which arises from various authorization even in the cases when the burden is on the accused the proof that is required to be given by him cannot be equated with the defence and character of proof, which normally rests on the complainant.

While the prosecution has to prove its case beyond reasonable doubt, the accused may discharge his burden and prove his case on the basis of preponderance of probabilities.

20.The accused has left the question unanswered as to why the accused kept quite till receipt of demand notice from PW.1 when Ex.P1 was said to have been given by him to one Sailu and not to PW.1. The bare word is not enough as it is necessary for the accused to show that his explanation is so probable that a prudent man ought to have to in the circumstances of the cases accept it. It necessarily fallows that if the case suggested by the accused leaves no question unanswered and unexplained even in the probabilities and in certain aspects is entirely unbelievable then it cannot be said that even on a preponderance of probabilities, he discharged his burden. In this case, accused has not discharged the burden on the basis of preponderance of probabilities which was based on the defence taken by the accused. The defence taken by the accused is highly improbable to make a prudent man to believe. The defence of the accused is total denial of the case of prosecution. Though, the learned counsel for the accused tried to elicit that Ex.P1 was given to one Sailu in blank and not to PW.1 and that PW.1 filed this false 9 case by misusing Ex.P1 was categorically denied by PW.1. Thus, the defence taken by the accused is not believable and not inspiring the confidence of this court and same is not substantiated with any substantial piece of evidence to support his version. If really that was the case that Ex.P1 cheque was not issued to PW.1, then nothing prevented the accused from taking legal action against the complainant and silence on the part of accused dross and adverse inference U/Sec.114 of Indian

Evidence Act. Except giving bald suggestion to PW.1 in cross examination nothing material was elicited from the mouth of

PW.1 and same is not sufficient to rebut the presumption

U/Sec.138 of NI.Act and the said suggestions is not absolve the accused from criminal liability for the offence U/Sec.139 of

NI.Act.

21.Further, the learned counsel for accused contended that

PW.1 does not have the capacity to learn money and also contended PW.1 does not have sufficient income and the question of lending huge amount to the accused does not arise. Adverting to the said contention of the accused it is pertinent to see that the question of having capacity to earn is secondary in the cases pertaining to NI.Act. When any person is income tax assessee such person is duty bound to show the money lent to others in his income tax return but, in this case on hand PW.1. It is not known whether the PW.1 is income tax assessee or not and in such case it is difficult to ascertain earning capacity of PW.1. Merely because PW.1 failed to prove his income capacity, the case of

PW.1 merely on the sole ground cannot be thrown away.

22.The accused has failed to prove his contention that he issued Ex.P1 cheque to Sailu and not to the PW.1. Thus, the 10 accused has failed to rebut the presumption U/Sec.138 of

NI.Act. The version of accused is not believable and not inspiring the confidence of this court as presumption is got U/Sec.138 of

NI.Act that cheque was issued in discharging of legally enforceable debt by the accused under Ex.P1 and when Ex.P1 was presented the same was dishonoured and issuance of legal notice and the same was received by the accused but, failed to give reply nor repay the amount and simply kept quite. The accused has also failed to explain the circumstances as to how Ex.P1 went into the hands of PW.1. Therefore, the complainant has proved his case that cheque was issued in view of subsisting debt.

23.In the result, the accused is found guilty for the offence punishable Under Section 138 of Negotiable Instruments Act.

Typed to my dictation, corrected and pronounced by me in open court, this the 24th day of April, 2017.

I Addl. Judl.Magistrate of First Class, Nizamabad.

In regard to the quantum of sentence:

24.The accused has submitted that he is residing at

Adarshnagar, Nizamabad, he is doing private work, he is having old aged parents, his family is completely dependent on his earnings, due to losses in business he could not clear the debt, resulting to birth of this case and he prayed this court to take lenient view and imposed only fine. Accused also submitted that the matter is settled in between him and complainant and a joint memo dt:24.4.2017 was filed wherein he agreed to pay Rs.2

Lakhs towards full and final settlement and till now he has paid

Rs.92,500/- (Rupees Ninety Two Thousands Five Hundred Only) out of Rs.2 Lakhs and that he is ready to pay the balance amout 11 towards compensation if give time of six (6) months. Perused the record and it is observed that memo is filed dt:24.4.2017 showing payment made by accused to the complainant for

Rs.92,500/-.

25.Upon considering the submission made by the accused and counsel for accused, this is not a fit case to invoke the provisions of Probation of Offenders Act, as invoking the provisions of probation of offenders Act, the purpose of introducing

Negotiable instrument Act would be defeated.

26.The core of this dispute is money, the complainant has invoked the provisions of Negotiable Instruments Act, is to get the accused punished, the accused as a clear intention to repay the debt has approached the complainant, on the other hand the complainant has also agreed to the proposal, predominantly the core subject of the disputes is been resolved, the offence committed by the accused is non serious offence, will not have any negative impact on society at large or not against the interest of public at large, the punishment imposed by this court would have negative impact on his family, the mitigating circumstances compel this court to take a lenient view, no prejudice and injustice would be caused to complainant if lenient view is taken.

This court is relying on the judgment of Hon'ble Apex

Court KAUSHALYA DEVI MASSADND Vs ROOPKISHORE

KHORE.1 :-

It was held in para 11: - Having considered the submissions made on behalf of the parties, we are of the view that the gravity of a complaint under the Negotiable Instruments Act cannot be equated with an offence under the provisions of the Penal Code, 1860 or other 1. 2011 (4) SCC 593, 2011 (2) SCC (Cri) 472.

12 criminal offences. An offence under Section 138 of the Negotiable Instruments Act, 1881, is almost in the nature of a civil wrong which has been given criminal overtones.

27.Therefore, in the facts and circumstances of the present case, this court deems it appropriate to impose compensation to be payable to the complainant by accused. It is needless to say the complainant shall have liberty to get the compensation awarded to him by taking recourse under section 421 Criminal

Procedure Code on failure of accused to pay the compensation within six months from today i.e., 26.4.2017.

28.In the result, the accused is found guilty for the offence punishable Under Section 138 of Negotiable Instruments Act.

The accused is convicted Under Section 255 (2) Criminal

Procedure Code and and he is sentenced toundergo simple imprisonment till rising of the court and he is directed to pay a fine of Rs. 1,000/- (Rupees One thousand only), in default of payment of fine, the accused shall suffer simple Imprisonment for a period of one (1) month. The accused is also directed to pay compensation of Rs.1,07,500/- (Rupees One Lakh Seven

Thousands Five Hundred Only) within six months from today i.e., 26.4.2017, in default of payment of compensation, the accused shall suffer simple Imprisonment for a period of six (6) months.

29.The accused is directed to execute bail bonds for

Rs.5,000/- with one surety as required under section 437-A of

Criminal Procedure Code, to appear before the Appellant Court.

30.Accused is informed about his right of appeal as per the directions of Hon'ble High Court of A.P., as held in the Judgment of Shaik Baba Vs. State of A.P. and the accused is also 13 informed that if he don't have means to engage an advocate to prefer an appeal, he is at liberty to approach District Legal

Service Authority, Nizamabad for free legal aid.

Typed to my dictation, corrected and pronounced by me in the open Court, this the 26th day of April, 2017.

I Addl. Judicial Magistrate of First Class Nizamabad.

APPENDIX OF EVIDENCE

WITNESS EXAMINED

FOR PROSECUTION: FOR DEFENCE:

PW.1: Mettu Arunkumar DW.1 Pala Venugopal Reddy

PW.2: Kolkat Tukaram

DOCUMENTS MARKED

FOR PROSECUTION:

Ex.P1 Original cheque bg.no.030143, dated 15.12.2012 Ex.P2 Deposit voucher, dated:1.2.2013 Ex.P3 Cheque return memo, dated:1.2.2012 Ex.P4 Legal notice, dated:11.2.2013 Ex.P5 2 number of Air State Couriers receipt dated 13.2.2013.

FOR DEFENCE:

Nil

I Addl.J.F.C.M.

1

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

AT NIZAMABAD

Present: Smt.S.Sarita, I Addl. Judl. Magistrate of First Class, Nizamabad.

Wednesday the 19th day of April, 2017.

CC. No. 625 of 2016

Between :-

State: The Sub-Inspector of Police, Town-IV, P.S., Nizamabad. (Cr. No. 99/2016).

...Complainant

And

A1- Raghubeer Singh Mali S/o Bhure Singh, 45 years, Aadhivasi (ST), Balloon Seller, R/o Rajivnagar, Zopad Patty, behind Railway Station, Nanded.

A2-Aakash Kale @ Akshay Kale S/o Raghubeer Singh Kale, 20 years, Pardi, Balloon Seller, R/o 16/17/77, Pathan Dhaba back side, Mitmita Village of Aurangabad Tq & Dist.

A3-Babu Kale @ Ravi Kale S/o Ramsingh, 25 years, Pardi, Balloon Seller R/o 16/17/77, Pathan Dhaba back side, Mitmita Village of Aurangabad Tq & Dist.

A4- Ganga Gokul Seriya S/o Gokul Seriya, 33 years, Pardi, Balloon Seller R/o Muradpoor Village PS Dharnawuda, Guna District of Madyapradesh.

...Accused

This case was coming before me on 10.4.2017 for final hearing in the presence of learned Assistant Public Prosecutor for complainant and Sri R.S.L.Goud, Legal Aid Counsel for accused and having stood over till this day for consideration this court delivered the following :-

JUDGMENT

The Sub-Inspector of Police, Town-IV, Police Station, 1.

Nizamabad has filed charge sheet in Crime No. 99/2016 for 2 the offence under sections 457, 380 and 511 of Indian Penal

Code against accused.

The brief averments of the charge sheet are that on 2.

the intervening night of 2/3.8.2016 the accused A1 to A4 came to Nizamabad by train at night hours and all the accused are went to Bank Colony, Vinayakanagar and gained entry into LW.1 house by breaking the door locks and searched for committing any theft, but there is no useful articles are find them. It is further alleged that LW.11-SI of Police, registered the report as a case in Cr.No.99/2016 under Secs.457, 380 and 511 IPC and investigated into the case and LW.11-SI of Police dispatched the FIR's to all concerned and examined and recorded the statements of witnesses, visited the scene of offence, situated at near

Baswa Garden, Vaishnavi residency, Nizamabad, conducted scene of offence panchnama and drawn rough sketch of the scene of offence before the mediators. On 4.8.2016 LW.10-

Circle Inspector of Police, Nizamabad Town was arrested the accused A1 in Crime No.182/2016 U/Sec.398, 333 IPC of Town-IV, Nizamabad and on 12.8.2016 arrested the A2 to

A4, duly conducted confessional and recovery panchnama

before the mediators, the accused persons confessed to

have committed this offence also LW.11 sent them to judicial custody. After completion of investigation LW11-

Sri R.Shankar, SI of Police has filed charge sheet and thus, the accused A1 to A4 committed offence under Secs.457, 380 and 511 IPC and liable for punishment. Hence, the charge.

This case was taken on file under Secs. 457, 380 and 3.

511 of IPC against the accused A1 to A4.

3 After appearance of the accused A1 to A4, necessary 4.

case documents were furnished to them, as required under

Section 207 Cr.PC. The accused A1 to A4 were examined under section 239 Cr.PC, charges for the offence

U/Secs.457, 380 and 511 was framed against them, read over and explained to them in vernacular language, for which they pleaded not guilty and claimed to be tried.

To prove its case, the prosecution examined PWs1 to 8 5.

and exhibited Exs.P1 and P5.

Ex.P1 is the Report, Ex.P2 is the Crime Detail Form, 6.

Ex.P3 is the Confessional Panchnama of A1, Ex.P4 is

Confessional Panchanamas of A2 to A4 and Ex.P5 is the First

Information Report.

After cosmpletion of the prosecution side evidence, 7.

the accused A1 to A4 were examined under sec. 313 Cr.PC to explain the incriminating circumstances appearing against them in oral and documentary evidence and the same was denied by the accused persons. The accused were called upon to enter defence, for which, they reported no defence.

Heard both the sides. 8.

Considering the submissions made on both sides, the 9.

point that fall for consideration is:

“Whether the prosecution has proved the guilt of accused for the offence punishable U/Secs.457, 380 and 511 IPC beyond all reasonable doubt”?

POINT:-

In order to prove the guilt of accused persons for 10.

offence U/Sec.457 IPC it is necessary to prove firstly that 4 there was lurking house trespass by night or house breaking by night. The second ingredient is that the hosue trespass or house breaking was in order to commit offence punishable with imprisonment and in some cases the offence may be theft. In this regard the evidence of PW.1 who is the defacto complainant has deposed that he was informed by

PW.2 that some unknown persons made an attempt to commit theft by break opening the locks of his flat in the night time and on seeing PW.2 those persons ran away.

The oral testimony of PW.2 is corroborating with the 11.

version of PW.1 and he has also deposed that he saw one person covering his face with cloth and harmed with stones and on seeing him they asked PW.2 not to raise alaram and threaten to hit with stones if he raised alaram. But, PW.2 raised cries out of fear and on hearing those cries those five unknown persons who came to commit theft became alert and ran away. Therefore, from the oral testimonies of

PW.1 and PW.2 it is evident that some unknown persons made an attempt of house breaking in the night time to commit theft in the house of PW.1 on the date of incident and it is also evident from the evidence of PW.2 that those persons break open the locks of the doors of the flat of PW.1 in order to commit theft in the house of PW.1. From the evidence of PW.2 it is evident that PW.2 had no opportunity to see the faces of the persons who came to commit theft in the house of PW.1 as they were covering their face with cloth.

The oral testimony of PW.3 also supports the version 12.

of PW.2 on all material aspects.

5 PW.4 who is one of the mediator for scene of offence 13.

panchnama has deposed supporting the case of prosecution that scene of offence panchnama was conducted in his presence by the police at the house of PW.1 and he observed locks of main doors of flat of PW.1 were break open.

PW.5 and PW.6 are the Investigating Officers and 14.

they both have deposed about their respective roles which they are done in investigation. Through PW.5 confessional panchnama of A1 to A4 was marked as Ex.P3 and P4 respectively. Through PW.6, First Information Report was marked as Ex.P5.

PW.7 is one of the mediator for confession of accused 15.

A2 to A4 and he has deposed that he was present at the time of recording of confessional statements of A2 to A4 along with LW.9 and that A2 to A4 voluntarily confessed that A2 to A4 attempted to commit theft in a apartment near Baswa Garden, Vinayaknagar, Nizamabad on the same day in the early hours and also confessed that they have committed theft in different areas at Hyderabad. PW.7 also testified that a knife was seized from the possession of A2 under cover of seizure panchnama.

PW.8 is one of the mediator before whom confession 16.

statement of accused A1 was recorded and he has deposed supporting the case of prosecution that A1 voluntarily confessed that he committed theft in the house of his neighbour and also confessed to have committed theft in different areas of Nizamabad by coming from Maharastra in train. PW.8 identified his signature and that Ex.P3 was the confession which was prepared in his presence. PW.7 and 6 PW.8 who are the mediators before whom the confessional statements of accused A1 to A4 were recorded they both have supported the case of prosecution and also identified the accused persons before this court. Nothing was elicited from the mouth of PW.7 and PW.8 who are the mediators in order to discredit or disbelieve their version. No suggestions were made to PW.7 and PW.8 suggesting that accused A2 to

A4 did not confessed before PW.7 and PW.8 as deposed by

PW.7 and PW.8 in their evidence before this court and that

A1 to A4 are noway concerned with this offence. Except giving bald suggestions to PW.7 and PW.8 nothing material could be elicited which is favourable to the defence. It is also not the plea of defence that A1 to A4 are falsely implicated by the police. There is no plea taken by the defence to consider that A1 to A4 are innocent. The defence has not challenged the evidence of PW.7 and PW.8 on any aspects except by suggesting PW.8 that he does not know the contents of Ex.P3 but the said suggestion was categorically denied by PW.8. PW.7 and PW.8 have identified A1 to A4 without any hesitation before this court and their evidence before this court goes to show that the confession made by A1 to A4 before PW.7 and PW.8 was voluntarily. The defence has also not disputed the voluntariness in giving confession by A1 to A4 under Ex.P3 and P4. Therefore, the un-challenge evidence of PW.7 and

PW.8 categorically goes to show that A1 to A4 were the persons who lurked house trespass by night on the date in order to commit theft in the house of PW.1. Therefore, the unshaken oral testimony of PW.7 and PW.8 categorically establishes that A1 to A4 attempted to commit theft on the date of incident in the house of PW.1.

7 For the reasons and discussion made above the 17.

prosecution has proved the guilt of accused persons for offence under Sec.511 IPC.

In the result, the accused A1 to A4 are found guilty 18.

for the offence under section 511 Indian Penal Code.

Dictated to the Personal Asst., transcribed by her, corrected and

pronounced by me in open Court, this the 19th day of April, 2017.

I Addl. Judl. Magistrate of First Class, Nizamabad.

19.Heard the accused A1 to A4 on quantum of sentence and they pleaded mercy of this court court to take lenient view on sentence stating that they have small children and family who are totally dependent on them and if they are sentenced to jail their family will be put to starvation. The learned APP has brought to the notice of this court that A1 to A4 are involved in three (3) cases before this court and one session case is pending against A1 to A4 before Hon'ble

Sessions Court at Nizamabad and also that the accused

persons are involved in cases and undergoing trial at

Hyderabad.

20.On perusal of record it is observed that A1 to A4 are involved in two (2) other cases along with this case before this court. Therefore, this court feels that this is not fit case to invoke Probation of Offenders Act. Considering the plea of the accused persons and also keeping the nature of offence in mind this court feels to take lenient view by sentencing A1 to A4 to undergo Simple Imprisonment for ten (10) months and to pay fine of Rs.50/- (Rupees Fifty Only) each accused for offence punishable under Sec.511 IPC, I/D 8 to pay fine A1 to A4 shall undergo Simple Imprisonment of one (1) week.

21.Accused A1 to A4 are informed about their right of appeal to the District and Sessions Court, Nizamabad as per the directions of Hon'ble High Court of A.P., in Shaik Baba

V. State of A.P. (2002 (1) ALD (Crl.) 335 A.P., and on questioning about the means to prefer appeal, they replied that they have no means to prefer appeal.

22.In the result, the accused A1 to A4 are convicted under section 248 (2) Criminal Procedure Code for an offence punishable under section 511 Indian Penal Code and the accused A1 to A4 are sentenced to undergo Simple

Imprisonment for a period of ten (10) months and to pay fine of Rs.50/- (Rupees Fifty Only) each accused and I/D to pay fine A1 to A4 shall undergo Simple Imprisonment for a period of one (1) week. The accused A1 to A4 are given the benefit of set off under section 428 Criminal Procedure

Code from 29.9.2016 to till date is set aside under Sec.428

Cr.PC. The accused A1 to A4 shall undergo the above sentences concurrently with the sentences imposed in other cases i.e., CC No.626/2016 and CC No.629/2016 by this court.

Dictated to the Personal Asst., transcribed by her, corrected and

pronounced by me in open Court, this the 19th day of April, 2017.

I Addl.Judl. Magistrate of First Class Nizamabad.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE

P.W.1: Goli Anil Reddy None P.W.2: Abdul Raoof P.W.3: Pasula Narayana 9 P.W.4: Dugyani Srinivas P.W.5: Sri N.Yadaiah P.W.6: Sri R.Shankar P.W.7: Vurati Ravikumar P.W.8: Symukam Jagadheeshwar

DOCUMENTS MARKED

FOR PROSECUTION FOR DEFENCE

Ex.P1 Report Nil

Ex.P2 Crime Detail Form

Ex.P3 Confessional Panchnama of A1

Ex.P4 Confessional Panchanamas of A2 to A4

Ex.P5 First Information Report.

I Addl. JFCM.

10

CALENDER AND JUDGMENT

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

AT NIZAMABAD.

Judgment in Calender Case No. 625 of 2016 on the file of I-Addl. Judicial

Magistrate of First Class Court, Nizamabad.

Name of complainant State: The Sub-Inspector of Police, Town-IV, P.S., Nizamabad. (Cr. No. 99/2016).

Names of Accused A1- Raghubeer Singh Mali S/o Bhure Singh, 45 years,Aadhivasi(ST),BalloonSeller, R/o Rajivnagar, Zopad Patty, behind Railway Station, Nanded. A2- Aakash Kale @ Akshay Kale S/o Raghubeer Singh Kale, 20 years, Pardi, Balloon Seller, R/o 16/17/77, Pathan Dhaba back side, Mitmita Village of Aurangabad Tq & Dist. A3- Babu Kale @ Ravi Kale S/o Ramsingh, 25 years, Pardi, Balloon Seller R/o 16/17/77, Pathan Dhaba back side, Mitmita Village of Aurangabad Tq & Dist. A4- Ganga Gokul Seriya S/o Gokul Seriya, 33 years, Pardi, Balloon Seller R/o Muradpoor Village PS Dharnawuda, Guna District of Madyapradesh. Nature of OffenceUnder Secs. 457, 380 and 511 IPC Findi ng: The accused A1 to A4 are convicted under section 248 (2) Criminal Procedure Code for an offence punishable under section 511 Indian Penal Code and the accused A1 to A4 are sentenced to undergo Simple Imprisonment for a period of ten (10) months and to pay fine of Rs.50/- (Rupees Fifty Only) each accused and I/D to pay fine A1 to A4 shall undergo Simple Imprisonment for a period of one (1) week. The accused A1 to A4 are given the benefit of set off under section 428 Criminal Procedure Code from 29.9.2016 to till date is set aside under Sec.428 Cr.PC. The accused A1 to A4 shall undergo the above sentences concurrently with the sentences imposed in other cases i.e., CC No.626/2016 and CC No.629/2016 by this court. SentenceConvicted. Date of Occurrence30.5.2016 Date of Complaint30.5.2016 Date of Apprehended of the 4.8.2016 accused Date of Release on bail ___ Date of commencement of trail 23.1.2017 Date of Closure of trial7.4.2017 Date of Sentence of Order19.4.2017 Explanation of delay-----

I Addl.Judl. Magistrate of First Class,

Nizamabad To The Hon'ble I Addl. Dist. &

Sessions Judge, Nizamabad.

1

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

AT NIZAMABAD

Present: Smt.S.Sarita, I Addl. Judl. Magistrate of First Class, Nizamabad.

Wednesday the 19th day of April, 2017.

CC. No. 626 of 2016

Between :-

State: The Sub-Inspector of Police, Town-IV, P.S., Nizamabad. (Cr. No. 108/2016).

...Complainant

And

A1- Raghubeer Singh Mali S/o Bhure Singh, 45 years, Aadhivasi (ST), Balloon Seller, R/o Rajivnagar, Zopad Patty, behind Railway Station, Nanded.

A2-Aakash Kale @ Akshay Kale S/o Raghubeer Singh Kale, 20 years, Pardi, Balloon Seller, R/o 16/17/77, Pathan Dhaba back side, Mitmita Village of Aurangabad Tq & Dist.

A3-Babu Kale @ Ravi Kale S/o Ramsingh, 25 years, Pardi, Balloon Seller R/o 16/17/77, Pathan Dhaba back side, Mitmita Village of Aurangabad Tq & Dist.

A4- Ganga Gokul Seriya S/o Gokul Seriya, 33 years, Pardi, Balloon Seller R/o Muradpoor Village PS Dharnawuda, Guna District of Madyapradesh.

...Accused

This case was coming before me on 10.4.2017 for final hearing in the presence of learned Assistant Public Prosecutor for complainant and Sri R.S.L.Goud, Legal Aid Counsel for accused and having stood over till this day for consideration this court delivered the following :-

JUDGMENT

The Sub-Inspector of Police, Town-IV, Police Station, 1.

Nizamabad has filed charge sheet in Crime No. 108/2016 for 2 the offence under sections 457, 380 and 511 of Indian Penal

Code against accused.

The brief averments of the charge sheet are that on 2.

the intervening night of 06/07.06.2016 the accused A1 to

A4 are came to Nizamabad by train at night hours all the accused are went to Bank Colony, Vinayakanagar and gained entry into LW.1 to LW.3 houses by breaking the door locks and searched for committing any theft, but there is no useful articles are find them. It is further alleged that

LW.12-SI of Police, registered the report as a case in

Cr.No.108/2016 under Secs.457, 380 and 511 IPC and investigated into the case. LW.12-SI of Police dispatched the FIR's to all concerned and examined and recorded the statements of witnesses, visited the scene of offence, situated at back side of the girls hostel, bank colony,

Vinayakanagar, Nizamabad, conducted scene of offence panchnama and drawn rough sketch of the scene of offence

before the mediators. On 4.8.2016 LW.11-Circle Inspector

of Police, Nizamabad Town was arrested the accused A1 in

Crime No.182/2016 U/Sec.398, 333 IPC of Town-IV,

Nizamabad and on 12.8.2016 arrested the A2 to A4, duly conducted confessional and recovery panchnama before the mediators, the accused persons confessed to have committed this offence also LW.11 sent them to judicial custody. After completion of investigation LW12-

Sri J.Anjaneyulu, SI of Police has filed charge sheet and thus, the accused A1 to A4 committed offence under

Secs.457, 380 and 511 IPC and liable for punishment. Hence, the charge.

This case was taken on file under Secs. 457, 380 and 3.

511 of IPC against the accused A1 to A4.

3 After appearance of the accused A1 to A4, necessary 4.

case documents were furnished to them, as required under

Section 207 Cr.PC. The accused A1 to A4 were examined under section 239 Cr.PC, charges for the offence

U/Secs.457, 380 and 511 was framed against them, read over and explained to them in vernacular language, for which they pleaded not guilty and claimed to be tried.

To prove its case, the prosecution examined PWs1 to 5 5.

and exhibited Exs.P1 to P5.

Ex.P1 is the Report, Ex.P2 is the Confessional 6.

Panchnama of A1, Ex.P3 is Confessional Panchanamas of A2 to A4, Ex.P4 is the First Information Report and Ex.P5 is the Crime Detail Form.

After completion of the prosecution side evidence, the 7.

accused A1 to A4 were examined under sec. 313 Cr.PC to explain the incriminating circumstances appearing against them in oral and documentary evidence and the same was denied by the accused persons. The accused were called upon to enter defence, for which, they reported no defence.

Heard both the sides. 8.

Considering the submissions made on both sides, the 9.

point that fall for consideration is:

“Whether the prosecution has proved the guilt of accused for the offence punishable U/Secs.457, 380 and 511 IPC beyond all reasonable doubt”?

POINT:-

In order to prove the guilt of accused persons for 10.

offence U/Sec.457 IPC it is necessary to prove firstly that 4 there was lurking house trespass by night or house breaking by night. The second ingredient is that the house trespass or house breaking was in order to commit offence punishable with imprisonment and in some cases the offence may be theft. In this regard the evidence of PW.1 who is the defacto complainant has deposed that he was informed by one V.RAvi that some unknown offenders made an attempt to commit theft by break opening the locks of his house.

PW.2 and PW.3 are the Investigating Officers and 11.

they both have deposed about their respective roles which they are done in investigation. Through PW.2 confessional panchnama of A1 to A4 was marked as Ex.P2 and P3 respectively. Through PW.3, First Information Report was marked as Ex.P4.

PW.4 is one of the mediator for confession of accused 12.

A2 to A4 and he has deposed that he was present at the time of recording of confessional statements of A2 to A4 and that A2 to A4 voluntarily confessed that A2 to A4 attempted to commit theft in a apartment near Baswa

Garden, Vinayaknagar, Nizamabad on the same day in the early hours and also confessed that they have committed theft in different areas at Hyderabad. PW.4 also testified that a knife was seized from the possession of A2 under cover of seizure panchnama.

PW.5 is one of the mediator before whom confession 13.

statement of accused A1 was recorded and he has deposed supporting the case of prosecution that A1 voluntarily confessed that he committed theft in the house of his neighbour and also confessed to have committed theft in 5 different areas of Nizamabad by coming from Maharastra in train. PW.5 identified his signature and that Ex.P2 was the confession which was prepared in his presence. PW.4 and

PW.5 who are the mediators before whom the confessional statements of accused A1 to A4 were recorded they both have supported the case of prosecution and also identified the accused persons before this court. Nothing was elicited from the mouth of PW.4 and PW.5 who are the mediators in order to discredit or disbelieve their version. No suggestions were made to PW.4 and PW.5 suggesting that accused A2 to

A4 did not confessed before PW.4 and PW.5 as deposed by

PW.4 and PW.5 in their evidence before this court and that

A1 to A4 are noway concerned with this offence. Except giving bold suggestions to PW.4 and PW.5 nothing material could be elicited which is favourable to the defence. It is also not the plea of defence that A1 to A4 are falsely implicated by the police. There is no plea taken by the defence to consider that A1 to A4 are innocent. The defence has not challenged the evidence of PW.4 and PW.5 on any aspects except by suggesting PW.5 that he does not know the contents of Ex.P2 but the said suggestion was categorically denied by PW.5. PW.4 and PW.5 have identified A1 to A4 without any hesitation before this court and their evidence before this court goes to show that the confession made by A1 to A4 before PW.4 and PW.5 was voluntarily. The defence has also not disputed the voluntariness in giving confession by A1 to A4 under Ex.P2 and P3. Therefore, the un-challenge evidence of PW.4 and

PW.5 categorically goes to show that A1 to A4 were the persons who lurked house trespass by night on the date in order to commit theft in the house of PW.1. Therefore, the unshaken oral testimony of PW.4 and PW.5 categorically 6 establishes that A1 to A4 attempted to commit theft on the date of incident in the house of PW.1.

For the reasons and discussion made above the 14.

prosecution has proved the guilt of accused persons for offence under Sec.511 IPC.

In the result, the accused A1 to A4 are found guilty 15.

for the offence under section 511 Indian Penal Code.

Dictated to the Personal Asst., transcribed by her, corrected and

pronounced by me in open Court, this the 19th day of April, 2017.

I Addl. Judl. Magistrate of First Class, Nizamabad.

16.Heard the accused A1 to A4 on quantum of sentence and they pleaded mercy of this court court to take lenient view on sentence stating that they have small children and family who are totally dependent on them and if they are sentenced to jail their family will be put to starvation. The learned APP has brought to the notice of this court that A1 to A4 are involved in three (3) cases before this court and one session case is pending against A1 to A4 before Hon'ble

Sessions Court at Nizamabad and also that the accused

persons are involved in cases and undergoing trial at

Hyderabad.

17.On perusal of record it is observed that A1 to A4 are involved in two (2) other cases along with this case before this court. Therefore, this court feels that this is not fit case to invoke Probation of Offenders Act. Considering the plea of the accused persons and also keeping the nature of 7 offence in mind this court feels to take lenient view by sentencing A1 to A4 to undergo Simple Imprisonment for ten (10) months and to pay fine of Rs.50/- (Rupees Fifty Only) each accused for offence punishable under Sec.511 IPC, I/D to pay fine A1 to A4 shall undergo Simple Imprisonment of one (1) week.

18.Accused A1 to A4 are informed about their right of appeal to the District and Sessions Court, Nizamabad as per the directions of Hon'ble High Court of A.P., in Shaik Baba

V. State of A.P. (2002 (1) ALD (Crl.) 335 A.P., and on questioning about the means to prefer appeal, they replied that they have no means to prefer appeal.

19.In the result, the accused A1 to A4 are convicted under section 248 (2) Criminal Procedure Code for an offence punishable under section 511 Indian Penal Code and the accused A1 to A4 are sentenced to undergo Simple

Imprisonment for a period of ten (10) months and to pay fine of Rs.50/- (Rupees Fifty Only) each accused and I/D to pay fine A1 to A4 shall undergo Simple Imprisonment for a period of one (1) week. The accused A1 to A4 are given the benefit of set off under section 428 Criminal Procedure

Code from 29.9.2016 to till date is set aside under Sec.428

Cr.PC. The accused A1 to A4 shall undergo the above sentences concurrently with the sentences imposed in other cases i.e., CC No.625/2016 and CC No.629/2016 by this court.

Dictated to the Personal Asst., transcribed by her, corrected and

pronounced by me in open Court, this the 19th day of April, 2017.

I Addl.Judl. Magistrate of First Class Nizamabad.

8

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE

P.W.1: Banoth Amber Singh None P.W.2: Sri N.Yadaiah P.W.3: Sri A.Anjaneyulu P.W.4: Vurati Ravi Kumar P.W.5: Sumukam Jagadheshwar

DOCUMENTS MARKED

FOR PROSECUTION FOR DEFENCE

Ex.P1 Report Nil

Ex.P2 Confessional Panchnama of A1

Ex.P3 Confessional Panchanamas of A2 to A4

Ex.P4 First Information Report

Ex.P5 Crime Detail Form.

I Addl. JFCM.

9

CALENDER AND JUDGMENT

IN THE COURT OF THE I ADDL. JUDL. MAGISTRATE OF FIRST

CLASS

AT NIZAMABAD.

Judgment in Calender Case No. 41 of 2016 on the file of I-Addl. Judicial Magistrate of First Class Court, Nizamabad.

Name of complainant State: The Sub-Inspector of Police,Town-IV,P.S., Nizamabad. (Cr. No. 9/2016).

Names of Accused Indrala Kalyan S/o Ravi, 23 years, SC-Madiga,PainterR/o H.No.1/6, JannaramColony,Rampally Dayara, Keesara Mandal of Rangareddy District, now at 300 quarters,Nagaramof Nizamabad.

Nature of OffenceUnder Secs. 380 and 511 IPC

Findi ng: The accused is found not guilty for the offence under sections 380 and 511 Indian Penal Code and he is acquitted under section 248 (1) Criminal Procedure Code. The accused is lodged in Chanchalguda Jail, Hyderabad, as such the jail authorities are directed to set at liberty, if he is not required in any other case/cases.

SentenceAcquitted.

Date of Occurrence19.1.2016

Date of Complaint19.1.2016

Date of Apprehended of 19.1.2016 the accused

Date of Release on bail ___

Date of commencement of 23.2.2016 trail

Date of Closure of trial7.4.2016

Date of Sentence of 24.11.2016 Order

Explanation of delay----- 10

I Addl.Judl.

Magistrate of First Class,

Nizamabad

To The Hon'ble I Addl. Dist. &

Sessions Judge, Nizamabad.

11 12

CALENDER AND JUDGMENT

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

AT NIZAMABAD.

Judgment in Calender Case No. 626 of 2016 on the file of I-Addl. Judicial

Magistrate of First Class Court, Nizamabad.

Name of complainant State: The Sub-Inspector of Police, Town-IV, P.S., Nizamabad. (Cr. No. 108/2016).

Names of Accused A1- Raghubeer Singh Mali S/o Bhure Singh, 45 years,Aadhivasi(ST),BalloonSeller, R/o Rajivnagar, Zopad Patty, behind Railway Station, Nanded. A2- Aakash Kale @ Akshay Kale S/o Raghubeer Singh Kale, 20 years, Pardi, Balloon Seller, R/o 16/17/77, Pathan Dhaba back side, Mitmita Village of Aurangabad Tq & Dist. A3- Babu Kale @ Ravi Kale S/o Ramsingh, 25 years, Pardi, Balloon Seller R/o 16/17/77, Pathan Dhaba back side, Mitmita Village of Aurangabad Tq & Dist. A4- Ganga Gokul Seriya S/o Gokul Seriya, 33 years, Pardi, Balloon Seller R/o Muradpoor Village PS Dharnawuda, Guna District of Madyapradesh. Nature of OffenceUnder Secs. 457, 380 and 511 IPC Findi ng: The accused A1 to A4 are convicted under section 248 (2) Criminal Procedure Code for an offence punishable under section 511 Indian Penal Code and the accused A1 to A4 are sentenced to undergo Simple Imprisonment for a period of ten (10) months and to pay fine of Rs.50/- (Rupees Fifty Only) each accused and I/D to pay fine A1 to A4 shall undergo Simple Imprisonment for a period of one (1) week. The accused A1 to A4 are given the benefit of set off under section 428 Criminal Procedure Code from 29.9.2016 to till date is set aside under Sec.428 Cr.PC. The accused A1 to A4 shall undergo the above sentences concurrently with the sentences imposed in other cases i.e., CC No.625/2016 and CC No.629/2016 by this court. SentenceConvicted. Date of Occurrence6/7-6-2016 Date of Complaint7-6-2016 Date of Apprehended of the 4.8.2016 accused Date of Release on bail ___ Date of commencement of trail 21.2.2017 Date of Closure of trial7.4.2017 Date of Sentence of Order19.4.2017 Explanation of delay-----

I Addl.Judl. Magistrate of First Class,

Nizamabad To The Hon'ble I Addl. Dist. &

Sessions Judge, Nizamabad.

1

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

AT NIZAMABAD

Present: Smt.S.Sarita, I Addl. Judl. Magistrate of First Class, Nizamabad.

Wednesday the 19th day of April, 2017.

CC. No. 629 of 2016

Between :-

State: The Sub-Inspector of Police, Town-IV, P.S., Nizamabad. (Cr. No. 181/2016).

...Complainant

And

A1- Raghubeer Singh Mali S/o Bhure Singh, 45 years, Aadhivasi (ST), Balloon Seller, R/o Rajivnagar, Zopad Patty, behind Railway Station, Nanded.

A2-Aakash Kale @ Akshay Kale S/o Raghubeer Singh Kale, 20 years, Pardi, Balloon Seller, R/o 16/17/77, Pathan Dhaba back side, Mitmita Village of Aurangabad Tq & Dist.

A3-Babu Kale @ Ravi Kale S/o Ramsingh, 25 years, Pardi, Balloon Seller R/o 16/17/77, Pathan Dhaba back side, Mitmita Village of Aurangabad Tq & Dist.

A4- Ganga Gokul Seriya S/o Gokul Seriya, 33 years, Pardi, Balloon Seller R/o Muradpoor Village PS Dharnawuda, Guna District of Madyapradesh.

...Accused

This case was coming before me on 10.4.2017 for final hearing in the presence of learned Assistant Public Prosecutor for complainant and Sri R.S.L.Goud, Legal Aid Counsel for accused and having stood over till this day for consideration this court delivered the following :-

JUDGMENT

The Sub-Inspector of Police, Town-IV, Police Station, 1.

Nizamabad has filed charge sheet in Crime No. 181/2016 for 2 the offence under sections 457, 380 and 511 of Indian Penal

Code against accused.

The brief averments of the charge sheet are that on 2.

the intervening night of 02/03.8.2016 the accused A1 to A4 are came to Nizamabad by train at night hours all the accused are went to Bank Colony, Vinayakanagar and gained entry into LW.1 house by breaking the door locks and searched for committing any theft, but there is no useful articles are find them. It is further alleged that LW.10-SI of Police, registered the report as a case in Cr.No.181/2016 under Secs.457, 380 and 511 IPC and investigated into the case. LW.10-SI of Police dispatched the FIR's to all concerned and examined and recorded the statements of witnesses, visited the scene of offence, situated at H.NO.1- 429/2, Yadagiribagh, Vinayakanagar, Nizamabad, conducted scene of offence panchnama and drawn rough sketch of the scene of offence before the mediators. On 4.8.2016 LW.11-

Circle Inspector of Police, Nizamabad Town was arrested the accused A1 in Crime No.182/2016 U/Sec.398, 333 IPC of Town-IV, Nizamabad and on 12.8.2016 arrested the A2 to

A4, duly conducted confessional and recovery panchnama

before the mediators, the accused persons confessed to

have committed this offence also LW.10 sent them to judicial custody. After completion of investigation LW10-

Sri J.Anjaneyulu, SI of Police has filed charge sheet and thus, the accused A1 to A4 committed offence under

Secs.457, 380 and 511 IPC and liable for punishment. Hence, the charge.

This case was taken on file under Secs. 457, 380 and 3.

511 of IPC against the accused A1 to A4.

3 After appearance of the accused A1 to A4, necessary 4.

case documents were furnished to them, as required under

Section 207 Cr.PC. The accused A1 to A4 were examined under section 239 Cr.PC, charges for the offence

U/Secs.457, 380 and 511 was framed against them, read over and explained to them in vernacular language, for which they pleaded not guilty and claimed to be tried.

To prove its case, the prosecution examined PWs1 to 6 5.

and exhibited Exs.P1 to P5.

Ex.P1 is the Report, Ex.P2 is the Crime Detail Form, 6.

Ex.P3 is the Confessional Panchnama of A1, Ex.P4 is

Confessional Panchanamas of A2 to A4 and Ex.P5 is the First

Information Report.

After completion of the prosecution side evidence, the 7.

accused A1 to A4 were examined under sec. 313 Cr.PC to explain the incriminating circumstances appearing against them in oral and documentary evidence and the same was denied by the accused persons. The accused were called upon to enter defence, for which, they reported no defence.

Heard both the sides. 8.

Considering the submissions made on both sides, the 9.

point that fall for consideration is:

“Whether the prosecution has proved the guilt of accused for the offence punishable U/Secs.457, 380 and 511 IPC beyond all reasonable doubt”?

POINT:-

In order to prove the guilt of accused persons for 10.

offence U/Sec.457 IPC it is necessary to prove firstly that 4 there was lurking house trespass by night or house breaking by night. The second ingredient is that the house trespass or house breaking was in order to commit offence punishable with imprisonment and in some cases the offence may be theft. In this regard the evidence of PW.1 who is the defacto complainant has deposed that on 2.8.2016 when he along with his family members slept in their house and on 3.8.2016 he got up at 6.00 am and found the main doors of his hosue were opened and also the grills were opened and some unknown persons made an attempt to commit theft.

PW.2 who is one of the mediator for scene of offence 11.

panchnama has deposed supporting the case of prosecution that scene of offence panchnama was conducted in his presence by the police at the house of PW.1 and he observed locks of main doors of house of PW.1 were break opened and screws of the grills were opened.

PW.3 and PW.4 are the Investigating Officers and 12.

they both have deposed about their respective roles which they are done in investigation. Through PW.3 confessional panchnama of A1 to A4 was marked as Ex.P3 and P4 respectively. Through PW.4, First Information Report was marked as Ex.P5.

PW.5 is one of the mediator for confession of accused 13.

A2 to A4 and he has deposed that he was present at the time of recording of confessional statements of A2 to A4 and that A2 to A4 voluntarily confessed that A2 to A4 attempted to commit theft in a apartment near Baswa

Garden, Vinayaknagar, Nizamabad on the same day in the early hours and also confessed that they have committed 5 theft in different areas at Hyderabad. PW.5 also testified that a knife was seized from the possession of A2 under cover of seizure panchnama.

PW.6 is one of the mediator before whom confession 14.

statement of accused A1 was recorded and he has deposed supporting the case of prosecution that A1 voluntarily confessed that he committed theft in the house of his neighbour and also confessed to have committed theft in different areas of Nizamabad by coming from Maharastra in train. PW.6 identified his signature and that Ex.P3 was the confession which was prepared in his presence. PW.5 and

PW.6 who are the mediators before whom the confessional statements of accused A1 to A4 were recorded they both have supported the case of prosecution and also identified the accused persons before this court. Nothing was elicited from the mouth of PW.5 and PW.6 who are the mediators in order to discredit or disbelieve their version. No suggestions were made to PW.5 and PW.6 suggesting that accused A1 to

A4 did not confessed before PW.5 and PW.6 as deposed by

PW.5 and PW.6 in their evidence before this court and that

A1 to A4 are noway concerned with this offence. Except giving bald suggestions to PW.5 and PW.6 nothing material could be elicited which is favourable to the defence. It is also not the plea of defence that A1 to A4 are falsely implicated by the police. There is no plea taken by the defence to consider that A1 to A4 are innocent. The defence has not challenged the evidence of PW.5 and PW.6 on any aspects except by suggesting PW.6 that he does not know the contents of Ex.P3 but the said suggestion was categorically denied by PW.6. PW.5 and PW.6 have identified A1 to A4 without any hesitation before this court and their evidence before this court goes to show that the 6 confession made by A1 to A4 before PW.5 and PW.6 was voluntarily. The defence has also not disputed the voluntariness in giving confession by A1 to A4 under Ex.P3 and P4. Therefore, the un-challenge evidence of PW.5 and

PW.6 categorically goes to show that A1 to A4 were the persons who lurked house trespass by night on the date in order to commit theft in the house of PW.1. Therefore, the unshaken oral testimony of PW.5 and PW.6 categorically establishes that A1 to A4 attempted to commit theft on the date of incident in the house of PW.1. s

For the reasons and discussion made above the 15.

prosecution has proved the guilt of accused persons for offence under Sec.511 IPC.

In the result, the accused A1 to A4 are found guilty 16.

for the offence under section 511 Indian Penal Code.

Dictated to the Personal Asst., transcribed by her, corrected and

pronounced by me in open Court, this the 19th day of April, 2017.

I Addl. Judl. Magistrate of First Class, Nizamabad.

17.Heard the accused A1 to A4 on quantum of sentence and they pleaded mercy of this court court to take lenient view on sentence stating that they have small children and family who are totally dependent on them and if they are sentenced to jail their family will be put to starvation. The learned APP has brought to the notice of this court that A1 to A4 are involved in three (3) cases before this court and one session case is pending against A1 to A4 before Hon'ble

Sessions Court at Nizamabad and also that the accused

7 persons are involved in cases and undergoing trial at

Hyderabad.

18.On perusal of record it is observed that A1 to A4 are involved in two (2) other cases along with this case before this court. Therefore, this court feels that this is not fit case to invoke Probation of Offenders Act. Considering the plea of the accused persons and also keeping the nature of offence in mind this court feels to take lenient view by sentencing A1 to A4 to undergo Simple Imprisonment for ten (10) months and to pay fine of Rs.50/- (Rupees Fifty Only) each accused for offence punishable under Sec.511 IPC, I/D to pay fine A1 to A4 shall undergo Simple Imprisonment of one (1) week.

19.Accused A1 to A4 are informed about their right of appeal to the District and Sessions Court, Nizamabad as per the directions of Hon'ble High Court of A.P., in Shaik Baba

V. State of A.P. (2002 (1) ALD (Crl.) 335 A.P., and on questioning about the means to prefer appeal, they replied that they have no means to prefer appeal.

20.In the result, the accused A1 to A4 are convicted under section 248 (2) Criminal Procedure Code for an offence punishable under section 511 Indian Penal Code and the accused A1 to A4 are sentenced to undergo Simple

Imprisonment for a period of ten (10) months and to pay fine of Rs.50/- (Rupees Fifty Only) each accused and I/D to pay fine A1 to A4 shall undergo Simple Imprisonment for a period of one (1) week. The accused A1 to A4 are given the benefit of set off under section 428 Criminal Procedure

Code from 29.9.2016 to till date is set aside under Sec.428 8 Cr.PC. The accused A1 to A4 shall undergo the above sentences concurrently with the sentences imposed in other cases i.e., CC No.625/2016 and CC No.626/2016 by this court.

Dictated to the Personal Asst., transcribed by her, corrected and

pronounced by me in open Court, this the 19th day of April, 2017.

I Addl.Judl. Magistrate of First Class Nizamabad.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION FOR DEFENCE

P.W.1: Banoth Amber Singh None P.W.2: Sri N.Yadaiah P.W.3: Sri A.Anjaneyulu P.W.4: Vurati Ravi Kumar P.W.5: Sumukam Jagadheshwar

DOCUMENTS MARKED

FOR PROSECUTION FOR DEFENCE

Ex.P1 Report Nil

Ex.P2 Crime Detail Form

Ex.P3 Confessional Panchnama of A1

Ex.P4 Confessional Panchanamas of A2 to A4

Ex.P5 First Information Report

I Addl. JFCM.

9

CALENDER AND JUDGMENT

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

AT NIZAMABAD.

Judgment in Calender Case No. 629 of 2016 on the file of I-Addl. Judicial

Magistrate of First Class Court, Nizamabad.

Name of complainant State: The Sub-Inspector of Police, Town-IV, P.S., Nizamabad. (Cr. No. 181/2016).

Names of Accused A1- Raghubeer Singh Mali S/o Bhure Singh, 45 years,Aadhivasi(ST),BalloonSeller, R/o Rajivnagar, Zopad Patty, behind Railway Station, Nanded. A2- Aakash Kale @ Akshay Kale S/o Raghubeer Singh Kale, 20 years, Pardi, Balloon Seller, R/o 16/17/77, Pathan Dhaba back side, Mitmita Village of Aurangabad Tq & Dist. A3- Babu Kale @ Ravi Kale S/o Ramsingh, 25 years, Pardi, Balloon Seller R/o 16/17/77, Pathan Dhaba back side, Mitmita Village of Aurangabad Tq & Dist. A4- Ganga Gokul Seriya S/o Gokul Seriya, 33 years, Pardi, Balloon Seller R/o Muradpoor Village PS Dharnawuda, Guna District of Madyapradesh. Nature of OffenceUnder Secs. 457, 380 and 511 IPC Findi ng: The accused A1 to A4 are convicted under section 248 (2) Criminal Procedure Code for an offence punishable under section 511 Indian Penal Code and the accused A1 to A4 are sentenced to undergo Simple Imprisonment for a period of ten (10) months and to pay fine of Rs.50/- (Rupees Fifty Only) each accused and I/D to pay fine A1 to A4 shall undergo Simple Imprisonment for a period of one (1) week. The accused A1 to A4 are given the benefit of set off under section 428 Criminal Procedure Code from 29.9.2016 to till date is set aside under Sec.428 Cr.PC. The accused A1 to A4 shall undergo the above sentences concurrently with the sentences imposed in other cases i.e., CC No.625/2016 and CC No.626/2016 by this court. SentenceConvicted. Date of Occurrence2/3.8.2016 Date of Complaint3.8.2016 Date of Apprehended of the 4.8.2016 accused Date of Release on bail ___ Date of commencement of trail 23.1.2017 Date of Closure of trial7.4.2017 Date of Sentence of Order19.4.2017 Explanation of delay-----

I Addl.Judl. Magistrate of First Class,

Nizamabad To The Hon'ble I Addl. Dist. &

Sessions Judge, Nizamabad.

10