Sri S.V.V.Natha Reddy

IN THE COURT OF THE IX ADDITIONAL SESSIONS JUDGE,

RANGA REDDY DISTRICT AT L.B.NAGAR.

PRESENT:- SRI S.V.V. NATH REDDY,

VIII ADDITIONAL SESSIONS JUDGE

FAC IX ADDITIONAL SESSIONS JUDGE

RANGA REDDY DISTRICT AT L.B.NAGAR.

DATED THIS THE 14 th DAY OF MARCH, 2016

CRIMINAL APPEAL No. 376 OF 2013

Between:-

1. Shankari Venkatesh, s/o Pentaiah, aged about 30 years, occ Business.

2. Shankari Dhanraj, s/o Fakeeraiah. both are residents of Chatrinaka, Charminar, Hyderabad.

3. Shankari Vijayamma, w/o Pentaiah, aged about 46 years, occ: House wife.

4. Shankari Pentaiah, s/o Venkataiah, aged about 52 years, occ; Business.

5. Shankari Kumar, s/o Pentaiah, aged about 25 years, occ:Business. All are r/o Khanapur village, Rajendranagar Mandal, Ranga Reddy district.

...Appellants/Accused No.1, 2 and 4 to 6.

And

The State of A.P. through P.S. Narsingi.

...Respondent.

APPEAL preferred by the Appellants/Accused No.1,2 and A.4 to A.6 having been aggrieved by the judgment dated 18-6- 2013 passed by the VIII Metropolitan Magistrate, at Rajen- dranagar, Ranga Reddy District in C.C No.361 of 2007

BETWEEN:-

The State of A.P. through P.S. Narsingi.

… Complainant

A N D

1. Shankari Venkatesh, s/o Pentaiah, aged about 30 years, occ Business.

2. Shankari Dhanraj, s/o Fakeeraiah. both are residents of Chatrinaka, Charminar, Hyderabad.

3. Moddu Raju, s/o Jangaiah ( abated ).

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4. Shankari Vijayamma, w/o Pentaiah, aged about 46 years, occ: House wife.

5. Shankari Pentaiah, s/o Venkataiah, aged about 52 years, occ; Business.

6. Shankari Kumar, s/o Pentaiah, aged about 25 years, occ:Business. All are r/o Khanapur village, Rajendranagar Mandal, Ranga Reddy district … Accused.

This Appeal coming before me for final hearing in the presence of Sri. G. Chandrashekar Reddy, Advocate for the appellants/Accused No.1, 2 and 4 to 6 and of Additional Public prosecutor for the State, and upon perusal of the material papers on record and the matter having been stood over till this day for consideration, this Court delivered the following:-

J U D G M E N T

1.This appeal is preferred by the appellants/accused No.1, 2 and 4 to 6 since the case against A.3 is abated, challenging the judgment dt.18.6.2013 passed by the learned VIII Metropolitan

Magistrate, Rajendernagar in C.C.No.361 of 2007 through

which the appellants are found guilty of the offence punishable under Sec.324 r/w 34 IPC and convicted accordingly under

Sec.248(2) Cr.P.C. and sentenced to undergo Rigorous impris- onment for a period of six months and to pay a fine of

Rs.500/- and indefault of payment of fine to undergo simple imprisonment for one month each.

2.For the sake of convenience, the appellants and respondent would be referred in this appeal as they are arrayed before the trial court.

3.The gist of the prosecution as set out in the charge sheet filed by the Inspector of Police, Narsingi is that on 13.5.2007 at 8 a.m. when the mother of defacto complainant Smt. Lalithamma 3 was sweeping infront of her house, her neighbour A.4 Smt. Vi- jayamma came and sprinkled drainage water, when Lalithama questioned, A.4 and all the accused keeping the previous grudge in mind pounced upon Lalithamma and her family members and beat them with sticks and hands by abusing in filthy lan- guage. In that, the defacto complainant (PW.1) and her father

Mallash (LW.2) received grievous injuries and others sustained minor injuries. Therefore accused A.1 to A.6 committed the of- fence punishable under Sec.325 r/w 34 IPC.

4.The learned Magistrate took the cognizance of the case against

A.1, A.2 and A.4 to A.6 under Sec.325 r/w 34 IPC by abating the case against A.3 as he reported died. Accordingly framed charges, conducted trial in which the prosecution had examined as many as eight witnesses from the listed (10) witnesses as

PWs.1 to 8 and got marked the report, observation report, rough sketch, first information report, letter, wound certificate and certificate of PW.8 respectively as Exs.p.1 to P.8. After examin- ing the appellants/Accused under Sec.313 Cr.P.C. against the incriminating evidence, heard the arguments, raised point for determination and on considering of the evidence available on record came to conclusion that no evidence was let in by either parties to determine who is the aggressor, but the lacerated wounds found on PWs.1 and 2 shows that such injuries are possible through sticks and such sticks used in the offence are likely to cause death or serious injuries. Therefore, held that all the accused in furtherance of their common intention went 4 upon PWs.1 to 5 and caused injuries to PWs.1 and 2 with sticks and such facts proves the offence under Sec.324 r/w 34 IPC and therefore convicted the appellants accordingly.

5.The appellant challenging the judgment and conviction pre- ferred this appeal on the following grounds.

That the judgment of the trial court is illegal, contrary to the weight of evidence and against the probabilities of the case. The trial court has erred in convicting the accused of the offence un- der Sec.324 r/w 34 IPC and failed to appreciate that there is no material on record to satisfy the ingredients of the offence under

Sec324 r/w 34 IPC and failed to consider the facts that there is total contradictory evidence among the prosecution witnesses and the trial court erred in giving much importance to the evi- dence of PWs.1 to 5 who are closely related to each other. It is also contended that the investigating officer failed to examine any independent witness even though admittedly others are present at the time of alleged incident. There is also a delay in sending the first information report to the Magistrate and the prosecution failed to explain such delay. Therefore, the said judgment of conviction is liable to be set aside.

6.Heard both sides.

7.The learned counsel for the appellants argued that the investi- gating officer failed to examine any independent witness other than the family members of the defacto complainant and no specific overt acts are there against the accused except sweep- ing bald allegations. He also argued that the doctor who treated 5 the injured PWs.1 and 2 is not examined and the doctor exam- ined as PW.8 is not the same doctor, who treated PWs.1 and 2 and that the prosecution neither filed x-ray report nor exam- ined the radiologist. Therefore the trial court passing a judg- ment of conviction inspite of holding that there is no evidence on record to show who is aggressor is liable to be set aside.

8.The learned Additional Public Prosecutor contended that the tri- al court rightly considered all the facts and evidence and rightly convicted the appellants and the appeal preferred against the judgment is liable to be dismissed.

9.Now the point for consideration is:

1. Whether the evidence available on record is sufficient to establish that the accused voluntarily caused hurt to

PWs.1 and 2 as laid down under Sec.324 r/w 34 IPC be- yond reasonable doubt and whether the judgment of the trial court under challenge is sustainable?

10.POINT NO.1:- It is an admitted fact that the defacto com- plainant/injured examined as PW.1 is the son of another in- jured examined as PW.2, eye witness examined as PW.3 is the wife of PW.2, another eye witness examined as PW.5 is the son of PWs.2 and 3 and another eye witness examined as PW.4 is one of the accused in the counter case registered at the instance of the accused in C.C.No.360 of 2007. It is also pointed out by the learned Magistrate in para No.11 of the judgment that

PWs.1 to 5 belongs to same family and they have previous dis- putes with the accused. Since PWs.1 to 5 all are enmical to- 6 wards the accused, they are no doubt, highly interested wit- nesses in this case. Therefore, the evidence of such interested witnesses needs a careful scrutiny before accepting them.

11.On perusal of evidence of PWs.1 to 5, it is clear that there are no specific overt acts against any of the accused other than a bald sweeping allegation that all the accused armed with sticks and stones beaten PWs.1 to 3. PW.1 for the first time deposed

before the court that the injury received by him in the incident

on left shoulder were caused by A.2. Therefore, such improve- ment is not fit for consideration.

12.It is clear from the evidence of PWs.1 to 5 and the judgment of the trial court that out of the same incident two cases are regis- tered by the police among them and the one case is this one and other case is against PWs.1 to 5 was numbered as C.C.No.360 of 2007. The trial court in para-5 of the judgment discussed that the present case and C.C.No.360 of 2007 arose out of the same incident and also referred to the decision of our Hon- ourable High Court in Adapa Gangadhara Rama Rao @ Gand- hara and others Vs State of Andhra Pradesh reported in 2010(1) ALD (Crl.) 76 (AP) in which his Lordship observed that both the cases must be tried by one and same judge and must be disposed simultaneously by him, otherwise it is impossible to arrive at a definite conclusion as to genesis of incident and also fix up the aggressor. In spite of referring to such decision, the learned Magistrate failed to try both cases simultaneously by observing that, none of the parties did any cross examination to 7 fix the aggressor and further stated that both the cases are tried by him. It appears to the learned Magistrate that due to previ- ous grudges the incident took place and both parties beaten each other. Having tried both the cases, the learned Magistrate in para-18 of the judgment observed that no evidence was let in by any of the parties to show who is the aggressor party to the incident. Having so observed the learned Magistrate finding the accused guilty of offence under Sec.324 r/w 34 IPC, seems to me, as self contradictory observations of the same court, so, the judgment passed on self contradictory observation, in my opinion is not sustainable. There is no mention about the re- sult of the counter case in C.C.No.360 of 2007. It seems that the learned Magistrate passed his finding only on the basis of presumptions and assumptions. In my opinion it is for the court to try simultaneously and to dispose both the cases at a time by determining, who is the aggressor among them, even though the parties failed to elicit such fact in the cross exami- nation. Therefore, I feel that the observation of the trial court that the parties did not cross examine on the lines to fix the ag- gressor is incorrect.

13.The learned Magistrate at page-6 of his judgment observed that

PW.4 in his cross examination admitted that there are neigh- bours namely Manikyam, Shankar, Ramaiah and Pirla persons and investigating officer PW7 has not examined such neigh- bours as witnesses either in this case or in the counter case

C.C.No.360 of 2007. On that the learned Magistrate drawn his 8 own inference that those neighbours might not have come for- ward to give statements because both parties are related to each other and neighbours naturally at any place will not come for- ward to depose when there were quarrels between the relatives and such question is posed to PW.7 on the non examination of neighbours. PW.7 admitted in cross examination that all the witnesses are inter-related and there are neighbouring houses other than the relatives of both parties, which shows that per- sons not related to either party are residing in the neighbouring houses where the offence took place. It is the duty of the inves- tigating officer to conduct impartial investigation by examining independent witnesses to bring out the truth. It is not the case of the prosecution, the investigating officer tried to examine the independent witnesses and they refused to stand as witnesses to draw any inference for the non examination of independent witnesses. Therefore, I am of the opinion that the inference drawn by the learned Magistrate, that the neighbours will not come forward to stand as witnesses to the quarrels that took place among the relatives is drawn without any basis by the tri- al court. Such inference drawn by the trial court is not sup- ported by any fact. It is the duty of the investigating officer to try for independent witnesses especially when the parties are enmical towards each other. Failure of the investigating officer to examine independent witnesses to bring out the truth is fatal to the case of the prosecution.

9

14.It is clear from the scene of offence panchanama and the inves- tigation of investigating officer PW.7 that blood stains are found at the front yard of both the houses of the parties, but the in- vestigating officer PW.7 did not chose to collect such blood stained earth and the blood stained articles like cloths, weapons etc., from victims and accused. The investigating offi- cer failed to recover any blood stained cloths of the victims or accused and to sent them along with the blood stained earth to the Forensic Science Laboratory to establish that such blood found infront of the houses of defacto complainant and the ac- cused matches with the blood group of victims or accused. In this case the investigating officer also failed to recover the sticks and stones allegedly used by the accused. In spite of all these lacunas on the part of the Investigating officer, the trial court only on the basis of the injuries found on PWs.1 and 2 came to conclusion that the accused have caused such injuries to PWs.1 and 2, inspite of coming to conclusion that no evidence was let in by either parties to show who is the aggressor. Therefore, without any specific overt acts and without any evidence to show who is the aggressor in the case and counter case, the learned Magistrate cannot pass a judgment of conviction against the appellants, only on the basis of presumptions and assumptions.

15.It is well settled principle that the suspicion however strong it might be cannot dispense with proof. Therefore until there is specific evidence that PWs.1 and 2 sustained injuries in the in- 10 cident due to the aggression of the accused, I feel that it is not safe to hold the accused responsible, for the injuries.

16.The learned Magistrate ought to have disposed of both cases at a time by conducting a trial in both the cases at a time to de- cide who is the aggressor between the defacto complainant par- ty and the accused party. The learned Magistrate finding the accused guilty of the offence under Sec.324 r/w 34 IPC is not on sound reasoning and the same is erroneous and unsustain- able.

17.From the above discussion, I am of the considered opinion that the judgment passed by the learned Magistrate on 18.7.2013 in

C.C.No.361 of 2007 finding the accused guilty of the offence un- der Sec.324 r/w 34 IPC is not sustainable.

18.In the result, the appeal is allowed setting aside the judgment and sentence in C.C.No.361 of 2007 on the file of VIII Metropoli- tan Magistrate, Cyberabad, at Rajendranagar dated 18-6-2013 and accused A.1, A2 and A.4 to A.6 are found not guilty for the offence under Section 324 r/w 34 IPC and they are acquitted under Section 248 (1) Cr.P.C. The fine amount paid by accused, shall be refunded to accused after expiry of appeal time.

Dictated to the Steno, transcribed by him, corrected and

pronounced by me in open court on this the 14 th day of March, 2016.

VIII ADDL.SESSIONS JUDGE,

FAC IX ADDL. SESSIONS JUDGE ,

RANGA REDDY DISTRICT AT L.B.NAGAR.

IN THE COURT OF THE IX ADDITIONAL SESSIONS JUDGE,

RANGA REDDY DISTRICT AT L.B.NAGAR.

PRESENT:- SRI S.V.V. NATH REDDY,

VIII ADDITIONAL SESSIONS JUDGE

FAC IX ADDITIONAL SESSIONS JUDGE

RANGA REDDY DISTRICT AT L.B.NAGAR.

DATED THIS THE 6 th DAY OF APRIL, 2016.

CRIMINAL APPEAL No.749/2013

BETWEEN:-

Eshwarlal, s/o Shankar Singh, aged 45 years, occ; Central Govt. employee, r/o H.No.9-11-32, Mothi Darwaza, Golconda Fort, Hyderabad. ….Appellant/accused.

A N D

1. S. Gopal Reddy, s/o Late Buchi Reddy, aged about 50 years, occ: Business, r/o H.No.6-92, Reddy Colony, Shamshabad vil- lage and mandal, Ranga Reddy District. … Respondent/complainant.

2. The State of A.P. Rajendranagar Police Station, represented by Public Prosecutor for the State. … Respondent.

APPEAL preferred by the Appellant/Accused having been ag- grieved by the judgment dated 20-11-2013 passed by the II Spe- cial Magistrate, at Rajendranagar, RR. District in C.C No.326/2012 ( old No.901/2012).

BETWEEN:-

S. Gopal Reddy, s/o Late Buchi Reddy, aged about 50 years, occ: Business, r/o H.No.6-92, Reddy Colony, Shamshabad village and mandal, Ranga Reddy District. …. Complainant.

A N D

Eshwarlal, s/o Shankar Singh, aged 45 years, occ; Central Govt. employee, r/o H.No.9-11-32, Mothi Darwaza, Golconda Fort, Hyderabad.

… Accused

This Appeal coming before me for final hearing in the presence of Sri. V. Mallikarjuna Sastri, Advocate for the appellant/complainant and of Smt. P. Srilatha, Advocate for the respondent/accused and Addl. Public Prosecutor for the Respondent No.2 and upon perusal of the material papers on record and the matter having been stood over till this day for consideration, this Court delivered the following:- 2

JUDGMENT

1.This criminal appeal is preferred by the appellant/accused against the judgment passed by the learned II Special Magis- trate, Rajendranagar, Ranga Reddy District in C.C.No.326 of 2012 ( old No.901 of 2012) dt.20.11.2013 where under the learned Magistrate found the appellant guilty for the offence under Sec.138 of N.I. Act and convicted him for the said of- fence under Sec.255(2) Cr.P.C. and sentenced to undergo Rig- orous imprisonment for Six months and to pay compensation of Rs.3,00,000/- u/sec.357(3) of Cr.P.C. within one month.

2.The appellant herein is the accused and respondent herein is the complainant in C.C.No.326 of 2012 ( old No.90-1 of 2012) on the file of II Special Magistrate, Rajendranagar, Ranga Red- dy District. For the sake of convenience, the appellant and re- spondent would be referred in this appeal as they are arrayed

before the trial court.

3.The case of the complainant in brief is that the accused and the respondent are well acquainted with each other and out of such acquaintance accused approached the complainant for advancing hand loan of Rs.3,00,000/- and the said amount was paid by the respondent/complainant on 25.7.2011 and the accused agreed to repay the said amount within one year by issuing two post dated cheques bearing No.131943 and 131941 dt.27.7.2012 issued in favour of the complainant for 3 Rs.1,50,000/- each. There after the accused did not repay the amount as promised by him and that the complainant pre- sented the said two cheques with his banker Oriental Bank of

Commerce, Mahaveer Enclave, Opposite Ganesh Theatre,

Shamshabad on 28.7.2012, but those cheques were returned for the reasons ‘FUNDS INSUFFICIENT’ vide cheque return memo dt.30.07.2012. After that the complainant got issued le- gal notice dt.06.08.2012 and the same was received by the ac- cused and failed to repay the cheque amount. Thereby the ac- cused committed the offence punishable under Sec.138 of N.I.

Act. Hence the complaint.

4.The learned Magistrate following the procedure took cog- nizance against the accused under Sec.138 of N.I. Act and af- ter that the case was transferred to the Special Court and the learned Special Magistrate following the procedure conducted the trial, in which the complainant examined PWs.1 to 3 and got marked the impugned cheque bearing No.131943 and an- other cheque bearing No.131941, two cheques return memos, legal notice, postal receipts two in number as Exs.P.1 to P.6.

On conclusion of the prosecution evidence the learned Magis- trate examined the accused u[sec.313 Cr.P.C. and the same is denied by the accused and on considering the evidence brought on record and on hearing the arguments of the coun- sel both sides came to conclusion that the accused is guilty of the offence punishable under Sec.138 of N.I.Act and convicted him accordingly and sentenced to undergo Rigorous imprison- 4 ment for six months and to paycompensationof

Rs.3,00,000/- to the complainant within one month from the date of judgment.

5.Aggrieved by the said judgment the appellant/accused pre- ferred this appeal on the following grounds.

That the judgment of the learned Special Magistrate is contrary to law and on facts and failed to consider the contradictions on the material point with regard to debt or liability and the material record with regard to sufficiency of means and the court below failed to consider that the amount covered under the cheque in question is not a legally recoverable debt as no proof is filed in support of the cheque and that the notice is- sued by the complainant is bad in law and failed to consider that the prosecution has failed to prove the case beyond all reasonable doubt, and therefore such judgment is liable to be set aside by allowing this appeal.

6.Heard the arguments on both sides and received the written arguments of appellant/accused.

7.The points for consideration are:

1) Whether the impugned cheques under Exs.P.1 and P.2 are issued by the appellant/accused towards discharge of legally enforceable of debt?

2) Whether the legal notice issued by the respondent/com- plainant under Ex.P.5 is not in accordance with the law?

5

3) Whether the judgment passed by the learned Magistrate convicting the appellant/accused is sustainable?

8.POINT NO.1:- It is the case of the complainant that the ac- cused is well acquainted to him and out of such acquaintance he advanced hand loan of Rs.3,00,000/- to the accused who agreed to repay such amount within a year and issued the im- pugned two cheques Exs.P.1 and P.2 each for Rs.1,50,000/- and after that the accused failed to repay the loan amount and on that the complainant deposited the impugned cheques

Exs.P.1 and P.2 for collection with his banker Oriental Bank of

Commerce, Mahaveer Enclave, Shamshabad but, those cheques were returned unpaid with a written memo (Ex.P.4) stating ‘funds insufficient’ and thereafter the complainant got issued legal notice under Ex.P.5, but the accused failed to pay the cheque amount within fifteen days. Thus the evidence of

PW.1 clearly shows that the impugned cheques Exs.P.1 and P2 are issued by the accused on receiving a hand loan of

Rs.3,00,000/- by assuring that the said loan will be cleared within a year. The evidence of PW.1 also shows that the ac- cused failed to repay the loan within the promised time inspite of expiry of one year time. The evidence of PW.1 further shows that on the assurance given by the accused, he deposited the post dated cheques Exs.P.1 and P.2 in his bank, Oriental Bank of Commerce, Mahaveer Enclave, Shamshabad on 28.7.2012 for realization, but the said cheques were returned unpaid with a reason funds insufficient.

6

9.The above evidence of PW.1 shows that the cheques under

Exs.P.1 and P.2 are issued by the accused towards hand loan amount for security purpose and after that the said cheques were deposited in to the bank account of PW.1 as the accused failed to repay the loan within the time agreed. These facts shows that the said cheques under Exs.P.1 and P.2 are issued towards discharge of hand loan availed by the appel- lant. It was suggested by the learned defence counsel during the cross examination of PW.1 that the accused has given him two cheques each for Rs.1,50,000/- towards security purpose against the said loan and that the accused written the said two cheques with his own hand writing. This shows that, as right- ly pointed out by the learned Magistrate that the cheques un- der Exs.P.1 and P2 are admittedly given by the accused as se- curity towards the hand loan availed by the accused from the complainant PW.1 also deposed that the accused himself wrote the contents of the impugned cheques. Though the cheques under Exs.P.1 and P.2 were issued towards security of the loan, it is clear from the evidence of PW.1 that the accused failed to repay the said loan within the agreed period of one year and on the assurance given by the accused deposited those cheques in his bank account for realization of his loan amount extended to the accused.

10.It is not the case of the accused that the impugned cheques under Exs.P.1 and P.2 are issued for any other purpose and 7 the complainant misused such cheques. The complainant depositing the cheques of the accused to recover his loan amount from the accused and that too on the assurance given by the accused, clearly shows that the cheques under Exs.P.1 and P.2 are deposited by the complainant in his account for the recovery of legal enforceable debt. Though it is suggested to PW.1 in his cross examination that the cheques under

Exs.P.1 and P.2 were misused by the complainant and such cheques were issued only for the purpose of security, the ac- cused did not show for which kind of security Exs.P.1 and P.2 were issued in favour of complainant.

11.The complainant also examined the Branch Manager, Oriental

Bank of Commerce, Shamshabad branch and the Branch

Manager Central Bank of India, Golkonda Branch as PWs.2 and 3 respectively and their evidence corroborates the evidence of PW.1 with regard to deposing of Exs.P.1 and P.2 cheques for realization of the amount and said cheques returned for want of sufficient funds in the account of the accused. Though it is elicited from the cross examination of PWs.1 to 3 that there are difference in the of ink pens used in the writing the cheques.

Suggestion given to PW.1 shows that the cheques under Ex.P.1 and P.2 are written by the accused. Therefore such variance in the colours of the ink or in the writings on the cheque will not affect the case of the complainant. Since the issuance of cheque by the accused is not denied and the evidence of PW.1 shows that the cheques under Exs.P.1 and P.2 are deposited in 8 his account towards recov- ery of the said dues from the ac- cused. A presumption can be drawn under Sec.139 of N.I. Act that the cheque under Exs.P.1 and P.2 are issued by the ac- cused towards discharge of legally enforceable debt. Therefore the burden is on the accused to rebut such presumption under

Sec.139 of N.I. Act either through the evidence of complaint or through the evidence of the accused so as to raise a probability that such cheques under Exs.P.1 and P.2 are not issued to- wards the discharge of legally enforceable debt. In this case the accused failed rebut such presumption under Sec.139 of

N.I. Act either from the cross examination of complainant wit- nesses nor adduced any evidence from the side of accused to disprove the claim of the complainant. Hence this point is an- swered accordingly that the cheques under Exs.P.1 and P.2 is- sued by the accused towards discharge of legally enforceable debt.

12.ISSUE NO.2: The learned counsel for the appellant/accused contends that the legal notice under Ex.P.5 was issued by the respondent/complainant is not in accordance with law and the requirements are not fulfilled as contemplated under Sec.138 of N.I.Act. In Ex.P.5 notice the learned counsel for the respon- dent/complainant demanded the appellant /accused to pay the amount of Rs.3,00,000/- together with interest @ 24% per annum towards the cheques Exs.P.1 and P.2 within 15 days of the receipt of notice. Among the decision cited by the learned counsel for the appellant/accused the Honourable High Court 9 of Allahabad in Kanhaiya Lal and another Vs. State of Up- per Pradesh and another reported in 2010 LawSuit (All) 832 it was referred to a decision in Suman Sethi Vs. Ajai Kumar

Churiwal and another 2000 (2) SCC 380 wherein it was held that;

It is well settled principle of law that the notice has to be read as a whole. In the notice, demand has to be made for the said amount i.e., the cheque amount. If no such demand is made the notice no doubt would fall short of its legal requirement.

Wherein in addition to the said amount there is also a claim by way of interest cost etc., whether the notice is bad would de- pend on the language of the notice. If in a notice while giving the break up of the claim of the cheque amount, interest, dam- ages etc., are separately specified, other such claims for inter- est, cost etc., would be superfluous and these additional claims would be severable and will not invalidate the notice. If, how- ever, in the notice an omnibus demand is made without speci- fying what was due under the dishonoured cheque, the notice might well fail to meet the legal requirement and may be re- garded as bad.”

From the above decision it is clear that if the demand for the cheque amount along with interest etc., towards additional claim are sever- able, it will not invalidate the notice. In the present case in Ex.P.5 the demand was made for Rs.3,00,000/- towards the cheque apart from demanding interest on such amount @ 24% per annum.

Therefore, the demand towards cheques under Ex.P.1 and P.2 is shown separately, and therefore the demand of interest @ 24%per annum in such notice will not make the notice invalidate and it will not avail to meet the legal requirement. Therefore, I am of the con- sidered opinion that the legal notice under Ex.P.5 is valid and legal.

10 Hence this point is answered ac-cordinglyagainstthe appellant/accused.

13.ISSUE:-3 The learned Magistrate considered all the evidence on record in the right perspective and there is nothing to inter- fere with such reasoned judgment which is in accordance with law and facts on record. I find no grounds to interfere with such judgment. Therefore, I am of the considered opinion that the judgment of the trial court is sustainable under law and on facts. Hence this point is answered accordingly against the ap- pellant/accused.

14.In the result, the appeal is dismissed, by confirming the judg- ment dt.20.11.2013 passed by the learned II Special Magis- trate, Rajendranagar in C.C.No.326 of 2012 (old No.901/2012).

The trial court is directed to take necessary steps against the accused immediately for serving out the sentence.

Dictated to the Steno, transcribed by him, corrected and pro-

nounced by me in open court on this the 6 th day of April, 2016.

VIII ADDL. SESSIONS JUDGE

RANGA REDDY DISTRICT

AT L.B.NAGAR

O.S.No.819 / 2007 1

IN THE COURT OF THE V ADDITIONAL DISTRICT & SESSIONS JUDGE

RANGA REDDY DISTRICT AT L.B.NAGAR, HYDERABAD, TELANGANA STATE

PRESENT:Sri.Dr.T.SRINIVASA RAO,

V ADDITIONAL DISTRICT & SESSIONS JUDGE,

RANGA REDDY DISTRICT AT LB NAGAR.

Friday, the Eighth day of July, Two Thousand Sixteen

ORIGINAL SUIT No.819 / 2007 Between:

01.K.Yadagiri, S/o.late.Muthaiah, Age: 49 yrs, Occ: Agriculture,

02.K.Maisaiah, S/o.late.Muthaiah, Age: 46 yrs, Occ: Pvt Service,

03.K.Gyaneswar, S/o.late.Muthaiah, Age: 40 yrs, Occ: Pvt Service, All are R/o.Nagireddyguda Village, Aziznagar, Post, Moinabad

Mandal, Rangareddy District ...Plaintiffs

AND

01.Ch.Laxmaiah, S/o.late.Narasimha, Age: 49 yrs, Occ: Agriculture,

02.Ch.Krishna, S/o.late.Narasimha, Age: 44 yrs, Occ: Agriculture,

03.Ch.Narsimha, S/o.late.Narasimha, Age: 49 yrs, Occ: Agriculture,

04.Ch.Eswaraiah, S/o.late.Venkataiah, Age: 42 yrs, Occ: Agriculture,

05.Ch.Sailoo, S/o.late.Narasimha, Age: 64 yrs, Occ: Agriculture,

06.Ch.Sathaiah, S/o.Ch.Sailoo, Age: 34 yrs, Occ: Agriculture,

07.Ch.Mallasha, S/o.Ch.Sailoo, Age: 39 yrs, Occ: Agriculture, All are R/o.Nagireddyguda Village, Aziznagar, Post, Moinabad

Mandal, Rangareddy District ...Defendants

This Original Suit came before me for final hearing in the presence of Sri.A.Mahesh Kumar, Counsel for the Plainitffs and M/s.Harigopal Neela, Counsel for the Defendants No.1 to 4, 6, 7 and upon perusal of the material papers on record and the matter stood over for consideration till this day, this Court delivered the following:

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

01.The Original Suit filed by the plaintiffs for declaration and consequential injunction against the defendants.

02.The brief averments of the plaint are as follows: The plaintiffs herein had acquired the suit schedule property by virtue of succession being the legal heirs of their father late.Muthaiah who expired about 15 years leaving behind the plaintiffs to succeed to the suit schedule property. After demise of their father, the plaintiffs mutated their names in the revenue records and obtained pattadar passbooks and title deeds and the plaintiffs are in continuous possession. The defendants are no way concerned with the suit schedule property and tried to interfere with the possession of the suit

O.S.No.819 / 2007 2

schedule property and the plaintiffs filed suit for perpetual injunction against the defendants in O.S.No.58/2003 (O.S.No.135/2003) and the same is dismissed and the plaintiffs preferred in Appeal in

A.S.No.19/2007 and the same is pending. The defendants interfered

with the possession of the plaintiffs on 22-08-2007 and tried to dispossess the plaintiffs by denying the title of the plaintiffs in respect of the suit schedule property and the same was resisted by the plaintiffs.

Again on 27-08-2007 the defendants interfered with the possession of the plaintiffs. Thereby the plaintiffs filed Suit for perpetual injunction to restrain the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property.

03.The defendants No.1 to 4 & 6, 7 filed written statement written statement denying the averments of the plaint interalia further contended that the mutation proceedings were obtained without any enquiry and without notice to the defendants, for which the defendants preferred an Appeal against the ROR Proceedings before the RDO and it is pending. The Suit in O.S.No.135/2003 was dismissed as the plaintiffs did not prove their possession. The defendants are absolute owners and possessor of land admeasuring Ac.2-12 guntas in Sy.No.105/12/E which was purchased by grandfather Narasimha from Muthaiah (father of the plaintiffs) in the year 1965 and the defendants are in possession since the date of purchase and cultivating the same without any interference.

The plaintiffs don't know the exact boundaries of the suit schedule property. The names of the defendants are mutated in revenue records and the defendants have got title coupled with possession over the suit schedule property. Thereby prayed for dismissal of the suit.

04.On hearing the above pleadings, my predecessor framed the following issues for adjudication:

01.Whether the plaintiffs are absolute owners and possessors of Suit Schedule Land ?

O.S.No.819 / 2007 3

02.Whether the Plaintiffs are entitled for injunction restraining the defendants from interfering with their possession over the Suit Schedule Property as prayed ?

03.Whether the entires made in the pahanies for the relevant period in respect of the Suit Schedule Property are illegal, invalid and not binding on the plaintiffs ?

04.To what relief ?

05.To prove the case of the plaintiffs, the first plaintiff was examined as PW1 and got marked Ex.A1 to A16 on behalf of the plaintiffs. On behalf of the defendants no oral or documentary evidence was adduced, inspite of giving sufficient opportunity hence treated as no defendants evidence.

06.The learned counsel for the plaintiff submitted that this matter may be decided on merits. However the defendants called absent no representation hence treated as heard. Perused the record.

ISSUES No.1 to 3:

07.It is settled law: To Declare is to announce an opinion. The object of Section 34 of the Specific Relief Act, 1963 is to declare the status or right of any person entitled to any legal character, or to any right as to any property. For better understanding Section 34 reads: Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny his title to such character or right and the Court may in its discretion, make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief.

08.So a person can seek the aid of the Court to dispel the cloud in case a cloud is cast upon his title or legal character. This section does not deal with any form of declaration but deals with only such a declaration which the plaintiff is entitled to regarding a specific legal character or to any right as to property. Where any person is entitled to institute a suit against another denying or interested to deny, his title to a right, the Court, in its discretion, is empowered to make a declaration

O.S.No.819 / 2007 4

that he is so entitled although the plaintiff has not asked for any other relief.

09.Granting declaratory decree is a matter of discretion: A declaratory decree, may be granted or refused depending upon the circumstances of each case since the claim of such relief, is not an absolute one but only a discretionary one but such discretion can't be excercised arbitrarily but in accordance with well established principles of law. A relief of declaration being a discretionary relief cannot be granted except in cases where substantial injury is established.

10.In a suit for declaration of title, burden is on the plaintiff to establish his title.

11.Plaintiffs filing suit for declaration of title and other consequential reliefs must succeed only on the strength of their own title and not on the mistakes committed or shortcomings in the case of the defendants.

12.That in a suit for declaration of title, the plaintiff must succeed in establishing his title irrespective of the question whether the defendant has proved his case or not.

13.The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. Even if the title set up by the defendants is found against, in the absence of establishment of plaintiff's own title, plaintiff mut be non-suited.

14.In a suit for permanent injunction it is trite law: “In a suit for injunction simplicitor (1) the initial burden lies on the plaintiff to establish that he/she is in possession and enjoyment of the suit land as on the date of filing of the suit, (2) he should further establish that the

O.S.No.819 / 2007 5

defendant or his/her men caused unlawful interference or causes endangerment to the rights of plaintiff, (3) in doing so plaintiff should stand or fall on the basis of his/her own case and he/she cannot take advantage of weaknesses, if any, in the case of defendant, (4) since the relief of permanent injunction is a discretionary relief, hence the plaintiff should approach the Court with clean hands without suppressing any material facts.

15.What are to be considered while granting Permanent injunction: The relief of injunction is an equitable and discretionary remedy. So the maxim that he/she who seeks equity must do equity applicable to a case in which equitable remedy is prayed for. Moreover, the plaintiff asking for such a relief should be able to show that he/she has come to Court with clean hands, added to this, that title should not be investigated in a suit for permanent injunction only, but title can be incidentally investigated for the purpose of determining whether the plaintiff was in possession of the suit land as on the date of institution of the suit or not (S.Rama Rathnamma Vs. G.Lavanyavathi, [1998] 2 ALD 518).

16.Added to this, a person seeking the relief of injunction should show the violation of the right by the act complained of and if that act is carried into effect it must result in the infringement of his/her legal right. Where the plaintiff is unable to establish any recognizable right or obligation nor breach of this same, he/she cannot sustain an action for perpetual injunction.”

17.In the back drop of the above settled legal position, now I proceed to appreciate the oral and documentary evidence.

18.As seen from the evidence of PW1, he reiterated what he averred in the plaint. During the course of cross nothing was elicited to disbelieve his evidence except putting some bald suggestions and entire

O.S.No.819 / 2007 6

cross examination went on questioning that the plaintiffs have never been in possession and enjoyment of the suit schedule property and that from the year 1963 the father and grandfather of the defendants and after his demise the defendants are in possession as such their names are reflecting in the Revenue Records, for which he denied.

19.Now coming to the documentary evidence of the plaintiffs, the following table is extracted:

Sl.Ex Document (certified copies)Pattadar and Possessor NoNo. 1A1Pahani for the year 1961 – 62Muthaiah 2A2Pahani for the year 1965 – 66Muthaiah 3A3Pahani for the year 1981 – 82Muthaiah 4A4Pahani for the year 1985 – 86Muthaiah 5A5Pahani for the year 1986 – 87Muthaiah 6A6Pahani for the year 1990 – 91K.Yadagiri,K.Maisaiah, K.Gyaneswar, 7A7Pahani for the year 1995 – 98K.Yadagiri,K.Maisaiah, K.Gyaneswar, 8A8Pahani for the year 2000 – 01K.Yadagiri,K.Maisaiah, K.Gyaneswar, 9A9Pahani for the year 2001 – 02K.Yadagiri,K.Maisaiah, K.Gyaneswar, 10A10 Pahani for the year 2002 – 03K.Yadagiri,K.Maisaiah, K.Gyaneswar, Ex.A11 is the Certified copy of the Proceedings in Proceeding

No.4460/87 wherein the name of Muthaiah was deleted and the names of the plaintiffs are incorporated. Ex.A12 is the Certified copy of Title deed in favor of the plaintiff No.1, Ex.A13 is the Certified copies of the

Receipts, Ex.A14 is the Certified copies of Passbooks, Ex.A15 is the

Certified copy of Judgment and Decree in O.S.No.135/2003 which shows that there is incidental title to the plaintiffs and it is not in dispute, however the Lower Court dismissed the suit on the ground that there is no possession as on the date of filing the suit and they did not file any document to show that they are in possession. However the said

Judgment was set aside through Ex.A16 which is Certified copy of

Judgment and Decree in A.S.No.19/2007 wherein the Appellate Court

O.S.No.819 / 2007 7

gave an observation that the possession follows the title, when there is title it is deemed that there is possession, moreover he gave a finding that while the title deeds establishes the ownership of the pattadar, owner, the pass book shall be the record of title which shall be given only to those persons, who are in actual possession of the land, ultimately the Appeal was allowed granting injunction in favor of the plaintiff.

20.Therefore as on the date there is injunction in favor of the plaintiff and there is an observation by the Lower Court that there is title in favor of the plaintiffs. In view of the evidence of PW1 coupled with

Ex.A1 to A16 and above settled position of law this Court has no hesitation to hold that the plaintiffs established that they are in possession and enjoyment of the suit schedule property and that there is interference from the defendants. Therfeore the plaintiffs are entitled for the relief as prayed for. Consequentially all the revenue entries in favor of the defendants are illegal, invalid and not binding on the plaintiffs. Accordingly these issues are answered.

ISSUE No.4:

21.In the result, the Original Suit is decreed declaring that the plaintiffs as the owners and possessors of the suit schedule property and granting consequential injunction restraining the defendants and their henchmen or agents from interfering with peaceful possession and enjoyment of the suit schedule property by the plaintiffs and all the revenue entries in favor of the defendants are illegal, invalid and not binding on the plaintiffs. Both parties shall bear their own costs.

Dictated to my Personal Assistant, typed by him, corrected and

pronounced by me in the Open Court on this Friday, the Eighth

day of July, Two Thousand Sixteen.

V ADDITIONAL DISTRICT & SESSIONS JUDGE

RANGAREDDY DISTRICT

O.S.No.819 / 2007 8

APPENDIX OF EVIDENCE

WITESSES EXAMINED

On behalf of the Plaintiffs:

PW1 K.Yadagiri

On behalf of the Defendants: NIL

EXHIBITS MARKED

On behalf of the Plaintiffs:

Ex.A1Certified copy of Pahani for the year 1961 – 62

Ex.A2Certified copy of Pahani for the year 1965 – 66

Ex.A3 Certified copy of Pahani for the year 1981 – 82

Ex.A4Certified copy of Pahani for the year 1985 – 86

Ex.A5Certified copy of Pahani for the year 1986 – 87

Ex.A6Certified copy of Pahani for the year 1990 – 91

Ex.A7Certified copy of Pahani for the year 1995 – 98

Ex.A8Certified copy of Pahani for the year 2000 – 01

Ex.A9Certified copy of Pahani for the year 1998 – 99

Ex.A10Certified copy of Pahani for the year 2005 – 06

Ex.A11Certified copy of the Proceedings in Proceeding No.4460/87

Ex.A12 Certified copy of Title deed

Ex.A13Certified copies of the Receipts

Ex.A14Certified copies of Passbooks

Ex.A15Certified copy of Judgment and Decree in O.S.No.135/2003

Ex.A16Certified copy of Judgment and Decree in A.S.No.19/2007

On behalf of the Defendants: NIL

V ADDITIONAL DISTRICT & SESSIONS JUDGE

RANGAREDDY DISTRICT

IN THE COURT OF THE CHAIRMAN, MOTOR VEHICLE

ACCIDENT CLAIMS TRIBUNAL-CUM- IX ADDL. DISTRICT JUDGE

: RANGA REDDY AT L.B. NAGAR

PRESENT:- SRI S.V.V. NATH REDDY,

VIII ADDITIONAL DISTRICT JUDGE,

FAC IX ADDL. DISTRICT JUDGE

RANGA REDDY DISTRICT AT L.B.NAGAR.

MONDAY, THE 25 th DAY OF APRIL, 2016

M.V. O.P. No. 941 OF 2010

Between :-

M. Pavan Kumar, s/o Khailasam, aged about 28 years, occ: Professional Service Representative, r/o H.No.3-12-74/16, L.B.Nagar, GSI Post, Hyderabad. … PETITIONER.

A n d

1. P. Ramesh babu, s/o P. Venkateshwarlu, aged Major, occ: Owner of Vehicle, r/o H.No.7-2-1087/9, Sri Lakshmikala Residency, Sanathnagar, Hyderabad.

2. The New India Assurance Co.Ltd., Rep. by its BranchManager, Having its Office at 6-3-862/A/B, 2nd Floor, Lal Bunglow, Green Lands, Ameerpet, Hyderabad – 500 016.

… RESPONDENTS.

PETITION UNDER SECTION 166 (1) (a) OF M.V. ACT

This petition coming before me for final hearing in the presence of Sri K. Harish Reddy, Advocate for the petitioner, and of Sri M. Sai Ramesh, Advocate for respondent No.1 and of Sri G. Vishweshwar Reddy, Advocate for the respondent No.2, having been heard and having stood over for consideration till this day, the Court made the following:-

-: A W A R D :-

1. This petition is filed Under Sec.166 of M.V. Act, 1988 and Rules 475/18 of A.P.M.V. Rules 1989 r/w Sec.163-A, 140 (C) of

A.P.M.V.Act, 1988 by the petitioner M. Pavan Kumar, claiming a 2 M.V.O.P. No.941 of 2010 compensation of Rs.2,50,000/- from the respondents for the injuries sustained by him in a road accident occurred on 12-6- 2010 at 9 p.m. near Modern Bakery, Uppal, Hyderabad.

2.The averments of the petition in brief are that the petitioner was aged 28 years by the date of accident and as professional service representative in Ind-Swift Limited Company drawing a take home salary of Rs.6,500/- per month which includes incentive on over time work and bonus. On 12.6.2010 while the petitioner was proceeding from Ramananthapur to Uppal on his two wheeler bearing No. AP-24-N-0803 and reached near Modern Bakery

Uppal the offending petroleum tanker bearing No. AP-09-Y-9625 proceeding from RGIcS road towards Ramananthpur was driven in rash and negligent manner and dashed to the petitioner with high speed, as a result the petitioner sustained crush injury to his right hand, head injury and other multiple fractures and injuries all over the body. The accident occurred because of the rash and negligent driving of the offending petroleum tanker driver.

3. After the accident the petitioner was immediately shifted to Shree

Hrishikeshaya Hospitals, Uppal, Hyderabad and the matter was reported to the police, Uppal who registered a case in CrNo.374 of 2010 under Sec.337 IPC against the driver of the offending vehicle. The petitioner got admitted as inpatient in Shree 3 M.V.O.P. No.941 of 2010

Hrishikeshaya Hospitals, Uppal on 12-06-2010 and underwent surgery to his crushed right hand and after further investigation taken treatment and was discharged on 21.6.2010, but he is still undergoing treatment and incurred an amount of Rs.1,50,000/- towards medical expenditure on account of surgery to his crushed right hand and incurred heavy mental loss apart from salary. Therefore, he claimed an amount of Rs.2,50,000/- towards compensation from the respondents.

4. Respondent No.1 remained exparte and respondent No.2 filed counter apart from filing the petition under Sec.170 of M.V.Act.

Respondent No.2 in his counter denying the entire allegations of the petition including the manner in which the accident said to have been taken place and involving of the vehicle of respondent

No.1. Respondent No.2 also denies the petitioner sustaining crush injury on the right hand and other injuries and also the admission of the petitioner in Shree Hrishikeshaya Hospitals,

Uppal, and also the age, income of the petitioner He also did not admit about the petitioner having driving licence by contending that the petitioner himself drove the motor cycle rashly and negligently without observing the traffic rules and contributed for the cause of accident and the compensation claimed at

Rs.2,50,000/- along with costs and interest @ 18% is highly excessive and exorbitant and not according to the Rules of

M.V.Act and seeks protection under Sec.147, 149(2) and 170 of 4 M.V.O.P. No.941 of 2010

M.V.Act.

5.On the above rival pleadings, the following issues have been settled:-

1.Whether the accident took place due to rash and negligent driving by the driver of petroleum tanker bearing No. AP-09-Y-9625?

2.Whether the petitioner is entitled to claim compensation, if so how much and from which of the respondents?

3.To what relief?

6. The petitioner to substantiate his claim testified himself as PW.1 and got marked C.C. of FIR, C.C. of charge sheet, discharge card, bunch of medical bills and photo as Ex.A.1 to A.5 respectively.

On behalf of the respondent No.2 no witness was examined, but the copy of insurance policy of the offending vehicle is marked as

Ex.B.1 with consent.

7. Heard arguments of both sides learned counsel.

8. ISSUE NO.1:- The evidence of the petitioner supported by Ex.A.1

F.I.R. and Ex.A.2 charge sheet reveals that the accident took place due to rash and negligent driving of the driver of petroleum tanker bearing No.AP-09-Y-9625. The evidence of PW.1 shows that the petroleum tanker was driven in a rash and negligent 5 M.V.O.P. No.941 of 2010 manner and dashed him with high speed and due to that he sustained the injuries all over his body. Nothing is elicited by the second respondent to disbelieve the evidence of the petitioner. No evidence was adduced by the second respondent to rebut the evidence of the petitioner. Hence I am of the considered opinion that the accident took place only due to the rash and negligent driving of the driver of the offending vehicle i.e., petroleum tanker bearing No. AP-09-Y-9625. Hence this issue is answered accordingly.

9. ISSUE NO.2:- The evidence of PW.1 shows that due to the accident he sustained crush injury on his right hand apart from head injury and other multiple fractures, bleeding injuries all over the body and he was immediately shifted to Shree Hrishikeshaya

Hospitals, Uppal and he underwent surgery to his crushed right hand and was discharged on 21.6.2010 but still undergoing treatment. The petitioner filed the consolidated bill dt.21.6.2010 issued by Shree Hrishikeshaya Hospitals, Uppal for Rs.85,100/- which includes investigation charges Rs.4456/- and the cash memo issued by Thirumala Pharmacy, Bharathnagar, Uppal, one

Himabindu blood bank receipt as a part of Ex.A.3. On considering all the said bills it comes to Rs.86,507/-, therefore I feel that the petitioner is entitled for said amount of Rs.86,500/- towards medical expenses.

10.Apart from that the petitioner who suffered with crush injury on 6 M.V.O.P. No.941 of 2010 his right hand and a head injury must have suffered severe pain and underwent treatment from 12.6.2010 to 21.6.2010, therefore,

I feel that the petitioner is entitled to a sum of Rs.30,000/- for pain and suffering.

11.Considering the fact that the petitioner was treated as inpatient in Shree Hrishikeshaya Hospitals, Uppal he must have availed the services of others who attend on him, therefore, I feel that he is entitled for a sum of Rs.5,000/- towards attending charges and

Rs.10,000/- towards extra nourishment during the period of convalescence.

12.The petitioner claims to be 28 years old by the date of accident and working as a Professional Service Representative in Ind-Swift

Limited Company drawing a take home salary of Rs.6,500/- per month, but the petitioner admitted in his cross examination that he has not filed any document to show that he is earning

Rs.6,500/- per month. It was suggested to PW.1 in his cross examination that he was aged more than 30 years by the date of accident. The petitioner contended that due to the accident he was on leave from 12.6.2010 to 21.6.2010 and no salary was paid to him during that period. Therefore the petitioner is entitled for the loss of pay from 12.6.2010 to 21.6.2010. Even if the monthly income of the petitioner is considered to be 6,500/- the 10 days loss of salary comes to Rs.2,167/- which can be rounded upto 7 M.V.O.P. No.941 of 2010 2,200/- . Hence the petitioner is entitled for a sum of Rs.2,200/- towards loss of earnings.

13.The petitioner deposed that he incurred an amount of

R.1,50,000/- towards medical expenditure on account of surgery to his crushed right hand but, he did not file the bills to show such expenditure.

1.Pain and suffering:Rs.30,000-00 2Medical expenses:Rs.86,500-00

3.Attending chargesRs.5,000-00

4.Loss of earnings:Rs.2,200-00

5.Extra nourishment:Rs.10,000-00 Rs. 1,34,200-00 Total :  Rounded to : Rs. 1.34,200-00

14.Respondent No.2 in his counter contended that he did not admit the petitioner having valid and effective driving licence to drive the motor cycle as on the date of accident and the petitioner himself drove the motor cycle rashly and negligently without following the traffic rules and contributed for the cause of accident. No evidence was adduced by the respondentNo.2 to establish that the petitioner drove his motor cycle in a rash and negligent manner and contributed to the occurrence of accident.

15.The learned counsel for respondent relied on a decision in United 8 M.V.O.P. No.941 of 2010

India Insurance Company Limited Vs. K. Anjaiah reported in 2004 (4) ALD 444, wherein it was held by his Lordship in para-9 that; “ A plain reading of the above provision, it is clear that triple riding is prohibited on a two wheeler. When a statutorybarimposedunderthe

Act, it is not made to be ignored by the riders of two wheelers, but to be followed in their own interest and safety. Though it has come in the evidence of PW.2 who claims to be an eye-witness to the accident that on the fateful day the driver of the accident lorry drove the lorry in a rash and negligent manner resulting in accident, but it is common understanding that one will certainly feel discomforted when riding a two wheeler with two pillion riders and naturally his balance over the vehicle will be limited reason of accommodating two pillion rider. In the instant case, it is admitted that there was triple riding on the scooter. Under those circumstances, even in the absence of independent evidence adduced by the insurance company that the accident had occurred due to triple riding, it can be reasonable presumed that the rider of the scooter was discomforted by reasons of allowing two pillion riders and thus contributed in causing the accident.

Had he been riding the scooter with one pillion rider, probably he would have averted the accident by swerving 9 M.V.O.P. No.941 of 2010 the scooter to the extreme left side, but could not do so probably; his hands and legs movement was limited due to the congestion. In such view of the matter, the culpability in causing the accident is fixed at 75% on the part of the driver of the accident lorry and 25% on the part of the rider of the scooter.”

16.PW.1 in his cross examination categorically admitted that he was not having driving licence by the time of accident. Driving of a vehicle without holding valid driving licence is prohibited under

Sec.181 read with Sec.3 of the M.V.Act.

17.Considering the above decision, I feel that the court can presume that the petitioner without holding driving licence is not competent to drive the motor cycle on a public road and being not competent to drive the motor cycle drove the motor cycle either rashly or negligently and contributed to the occurrence of accident. Therefore, the petitioner also contributed to the accident and his contribution is fixed at 30% only and the respondent being the insurance of the offending vehicle is liable to indemnify the liability of the respondent No.1 in the event of any eventualities as per the terms and conditions of Ex.B.1 insurance policy to the extent of 70% of the compensation.

Therefore the respondents 1 and 2 are jointly and severally liable to pay the above determined compensation of Rs.93,940/- to the 10 M.V.O.P. No.941 of 2010 petitioner. Hence this issue is answered accordingly.

18.ISSUE NO.3:- In the result, the petition is allowed in part, awarding a compensation of Rs.1,34,200/- ( Rupees one lakh thirty four thousand two hundred only) to the petitioner with proportionate costs and interest @ 7.5% per annum from the date of petition ie., 31.10.2010 till the date of actual deposit and the respondents Nos.1 and 2 are jointly severally liable to pay

Rs.93,940/- ( i.e., 70% in total compensation for the negligence on the part of the driver of the offending vehicle and Rs.40,260/- (30% in total compensation) for negligence on the part of the rider of the motor cycle.

Respondent No.2 is directed to deposit the said amount of

Rs.93,940/- in to the Court alongwith proportionate costs and interest, within thirty days from the date of this award

On such deposit being made since the petitioner has incurred expenditure towards medical and other incidental expenses, he is permitted to withdraw the entire amount.

Advocate fee is fixed at Rs.2,000/- (Rupees two thousand only) only.

Dictated to the Personal Assistant, transcribed by him,

corrected and pronounced by me in open Court, on this the 25th day of April, 2016.

Chairman, MACT-cum- VIII Addl. District Judge, R.R. District 11 M.V.O.P. No.941 of 2010

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR THE PETITIONER: FOR THE RESPONDENTS:

PW.1 : M. Pavan Kumar.. NIL

EXHIBITS MARKED

FOR THE PETITIONER:

Ext.A1C.C. of FIR Ext.A2C.C. of Charge Sheet. Ext.A3Discharge card. Ext.A4Bunch of medical bills. Ext.A5Photos.

FOR THE RESPONDENTS:

Ex.B.1: Copy of insurance policy.

Chairman, MACT-cum- VIII Addl. District Judge, R.R. District.

IN THE COURT OF THE IX ADDITIONAL SESSIONS JUDGE,

RANGA REDDY DISTRICT AT L.B.NAGAR.

PRESENT:- SRI S.V.V. NATH REDDY,

VIII ADDITIONAL SESSIONS JUDGE

FAC IX ADDITIONAL SESSIONS JUDGE

RANGA REDDY DISTRICT AT L.B.NAGAR.

DATED THIS THE 15 th DAY OF MARCH, 2016

CRIMINAL APPEAL No. 206 OF 2014

Between:-

D. Paramesh, s/o Raman, age 30 years, occ; Private employee, r/o H.No.9-2-97, Reddy Basthi, Champapet, Saroornagar, Ranga Reddy district.

...Appellants/Accused.

And

The State of A.P. through P.S. Meerpet.

...Respondent.

APPEAL preferred by the Appellants/Accused having been aggrieved by the judgment dated 3.3.2014 passed by the II Metropolitan Magistrate, at Cyberabad, L.B.Nagar, Ranga Red- dy District in C.C No.1706 of 2002

BETWEEN:-

The State of A.P. through P.S. Meerpet. … Complainant

A N D

D. Paramesh, s/o Raman, age 30 years, occ; Private employee, r/o H.No.9-2-97, Reddy Basthi, Champapet, Saroornagar, Ranga Reddy district … Accused.

This Appeal coming before me for final hearing in the presence of Sri. B. Sriram Karthik, Advocate for the appellant/Accused and of

Additional Public prosecutor for the State, and upon perusal of the material

papers on record and the matter having been stood over till this day for consideration, this Court delivered the following:-

J U D G M E N T

1.This appeal is preferred by the appellant/accused challenging the judgment dt.3.3.2014 passed by the learned II Metropolitan 2

Magistrate, L.B.Nagar, in C.C.No.1706 of 2012 through which

the appellant was found guilty of the offence punishable under

Sec.324 of IPC and convicted accordingly under Sec.248(2)

Cr.P.C. and sentenced to undergo simple imprisonment for a period of six months.

2.For the sake of convenience, the appellant and respondent would be referred in this appeal as they are arrayed before the trial court.

3.The gist of the prosecution as set out in the charge sheet filed by the Sub-Inspector of Police, Meerpet is that on 5.10.2012 at 1930 hours the defacto complainant A. Jangaiah lodged a re- port stating that on the night of 3.10.2012 he went along with his friend Bixapathi and dropped the friend of Bixapathi by name Ramesh at L.B.Nagar and when they were returning on the bike of Bixapathi they went to Balaji wines at Gayathrinagar at about 10.30 p.m. to consume liquor, at that time they ob- served some dispute going on that place, when he went to that crowd and tried to subside such quarrel, one unknown person beat him on his forehead with an empty bottle and caused bleeding injury and after that his friend Bixapathi shifted him to

Viswas hospital for treatment.

4.The learned Magistrate took cognizance of the case against Ac- cused under Sec.324 IPC, framed charges, conducted trial in which the prosecution has examined as many as six witnesses as PWs.1 to 6 and got marked Ex.P.1 to P.4. After examining 3 the accused/appellant under Sec.313 Cr.P.C. explaining the in- criminating evidence and recording his plea of denial, heard the arguments, raised point for determination and on considering of the evidence available on record came to conclusion that the prosecution established the guilt of the accused for the offence charged against him and convicted him accordingly under

Sec.248(2) Cr.P.C. sentenced to undergo simple imprisonment for a period of six months under Sec.324 IPC.

5.The appellant challenging the judgment and conviction pre- ferred this appeal on the following grounds.

That the judgment of the court below is contrary to law, weight of evidence, probabilities of the case and vitiated by material ir- regularity. That the court below ought to have seen that the statement given by the defacto complainant PW.1 stating that some unknown persons beat him with empty bottle is not iden- tified the accused/appellant and given complaint immediately and that LW.3 also not given complaint or intimate to the police and that the delay was not explained by the defacto com- plainant. That the lower court erred in concluding that the complainant has proved the guilt beyond doubt inspite of the fact that the accused raised various points , based on facts and surmises of evidence are not necessary and such judgment is unsound and unsustainable. Therefore, the said judgment of conviction is liable to be set aside.

6.Heard both sides.

7.Now the point for consideration is:

4

Whether the judgment of the trial court under challenge is sustainable?

8.POINT NO.1:- As per the contents of the charge sheet on the night of 3.10.2012 PW.1 and PW.2 together went to L.B.Nagar and dropped their friend Ramesh at L.B.Nagar and on their re- turn journey on Splendor motor cycle bearing No. AP29 N 9660 they reached Balaji Wines at Gayathrinagar at about 10.30 p.m.

to have liquor and at the same time they saw a dispute going on and reached such crowd where accused was found quarrelling with some other and when PW.1 intervened in such matter and tried to rescue the accused, accused assaulted PW.1 on the forehead with an empty bottle and caused bleeding injury.

Thus it is clear from the above case of the prosecution that

PWs.1 and 2 are returning from L.B.Nagar on splendor motor cycle bearing No. AP 29 N 9660.

9.The evidence of PWs.1 and 2 reveals that they were traveling in a bus and on reaching Gayathri nagar they found galata go- ing on and in that the accused came and beat PW.1 with a bot- tle and caused bleeding injury. There is no whisper in the evi- dence of PWs.1 and 2 about the splendor motor cycle and they were traveling on a bus. There is no whisper in the evidence of

PWs.1 and 2 about going towards Balaji Wines or how they reached place of offence and why the accused beaten PW.1.

10.The contents of the F.I.R. clearly shows that some unknown persons assaulted PW.1, but the contents of the charge sheet 5 shows that the investigating officer arrested the accused on 16.11.2012 i.e., on the 13th day after the incident. The con- tents of the charge sheet does not disclose how the accused was identified, when the assailant who assaulted PW.1 on the night of 3.10.2012 is a stranger to PW.1. The investigating officer ex- amined as PW.6 deposed that he examined LW.2 and 3 and and arrested the accused, but he did not say how he identified the accused after examining LW.2 examined as PW.2 and LW.3

Punna Srinu. Thus the prosecution failed to show how the ac- cused was identified as an assailant who attacked PW.1 in the incident.

11.The evidence of PWs.1 and 2 shows that the accused had beat- en PW.1 in the incident. When the assailant is an unknown per- son, PWs.1 and 2 identifying the accused in the court hall for the first time as the person who assaulted PW.1 in the incident is a weakest piece of evidence.

12.As seen from the record it is clear that PW.2 failed to appear for facing cross examination. Therefore, the evidence of PW.2 is not fit for consideration since the appellant/accused lost his oppor- tunity to test the evidence of PW.2 by way of cross examination.

13.The learned counsel for the appellant argued that the trial court failed to provide legal aid counsel to the appellant/accused and therefore none of the prosecution witnesses are cross examined, and such evidence of the prosecution witnesses is not fit for consideration. On perusal of the records, it is clear that the ap- 6 pellant had engaged advocate to defend his case, but such ad- vocate did not attend the court to cross examine the witnesses.

There is nothing on record to show that the appellant/accused making any request before the trial court for providing legal aid counsel. Therefore, the contention of the learned defence coun- sel is not sustainable as the appellant/accused had his own ad- vocate on record before the trial court.

14.Since the learned counsel for the appellant/accused did not at- tend during the course of trial the evidence of the prosecution witnesses was not put to the test of cross examination. Though the prosecution witnesses are not cross examined nothing pre- vents the trial court to ascertain the veracity of the prosecution witnesses with the available evidence on record. The learned

Magistrate failed to observe that the evidence of PW.2 was not

concluded and the evidence of PWs.1 and 2 is not in accordance with the case of the prosecution with regard to the mode of trav- eling by the relevant time. Though the mode of transport of

PWs.1 and 2 is not directly relevant to the fact of assault, but it will be relevant as it is proximate to the incident. As per the principle of RES-GESTAE incorporated under Sec.6 of Evidence

Act things done including words spoken, form part of the same transaction is also relevant. Section 6 of Evidence Act, says that facts even though they are not in issue, but if they are so connected as to form part of the same transaction, and they are relevant whether they occurred at the time and place or at the places are different. It seems that the trial court is carried 7 away as the evidence of the prosecution witnesses are not cross examined and failed to look into the merits of the case.

15.Among the witnesses examined by the prosecution, PW.1 is the injured and PW.2 is only eye witness. PW.3 is the mediator to the scene of offence; PW.4 is the doctor, who treated PW.1, while PWs.5 and 6 are the investigating officers. As stated supra, the evidence of PW.2 is not fit for consideration as his ev- idence was deferred and not concluded. So, the only eye witness

Pw’.2 failed to appear and offer himself for the cross examina- tion, such evidence is liable to be eschewed. So to prove the in- cident except the evidence of injured PW.1 there is no other eye witness evidence. Though the contents of FIR shows that PWs.1 and 2 were returning on splendor motor cycle bearing No.AP-29

N 9660, evidence of PW.1 shows that they were traveling on a bus, though the PW.1 was not cross examined on such ver- sion, it is the duty of the court to inspect the records available and to separate the truth from the falsehood like separating chaff from the grain. The court need not accept the testimony of a witness only on the ground that such witness is not cross examined by the other side.

16.Another fact to be considered is whether the identification of the accused as the assailant by PW.1 before the court for the first time is believable. PW.1 in his report Ex.P.1 categorically stated that one unknown person assaulted him with an empty bottle and caused bleeding injury and he can identify such person if shown to him. The investigating officer PW.6 having arrested 8 the accused did not make any attempt to hold test identification parade immediately after the arrest of the accused. This is fatal to the prosecution case when the assailant is a stranger to the victim. Therefore, I feel that the identification of accused by

PW.1 for the first time before the court without any corrobora- tion is not safe and reliable to fasten the guilt on the accused.

Though the evidence of doctor PW.4 establishes the injury on

PW.1 through Ex.P.3 medical certificate, I feel such evidence is not sufficient to establish the guilt of the accused beyond all reasonable doubt.

17.The learned Magistrate failed to consider the above facts in ap- preciating the evidence available on record and came to an erro- neous conclusion that the guilt of the accused was established by the prosecution beyond reasonable doubt. Therefore, I am of the considered opinion that the judgment of the trial court in convicting the accused for the offence under Sec.324 IPC is not sustainable either in law or on facts.

18.In the result, the appeal is allowed setting aside the judgment and sentence in C.C.No.1706 of 2012 on the file of II Metropoli- tan Magistrate at L.B.Nagar dated 3-3-2014 and accused is found not guilty for the offence under Section 324 IPC and he is acquitted under Section 248(1) Cr.P.C.

Dictated to the Steno, transcribed by him, corrected and

pronounced by me in open court on this the 15 th day of March, 2016.

VIII ADDL.SESSIONS JUDGE,

FAC IX ADDL. SESSIONS JUDGE ,

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RANGA REDDY DISTRICT AT L.B.NAGAR.