Sri Sagabala Vasu Dev

1 OF 21 CC No.555/2016

CALENDAR AND JUDGMENT

IN THE COURT OF PRINCIPAL CIVIL JUDGE(JUNIOR

DIVISION)-PRINCIPAL JUDICIAL MAGISTRATE OF I CLASS,

ELURU

FAC/ II ADDITIONAL JUNIOR CIVIL JUDGE-CUM-

II ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS,

ELURU.

CALENDAR CASE NO.555/2016

1Date of Offence 04.10.2015 2Date of Complaint04.10.2015 3Date of Apprehension of Accused 27.12.2015 4Date of Commencement of Trial 27.09.2016 5Date of Closure of Trial 13.11.2024 6Date of Judgment 13.11.2024 7ComplainantSub-Inspector of Police, II Town P.S., Eluru. (Cr.No.336/2015 of II Town P.S., Eluru. ) 8Name of the Accused 1. Kasthuri Appanna @ Veerappan, S/o. Satyanarayana, Aged 37 years, Voolapalli Village, E.G.Dist.,

2. Pelivela Sattibabu, S/o. Late Venkanna, Aged 35 years, Settibalija, Rangapuram Village of Bikkavole Mandal, E.G.Dist., now at Hafeez Pet, Near Yellamma Temple, Hyderabad.

9OffenceUnder Sections 457 and 380 of IPC.

10 Plea of AccusedPleaded Not guilty.

11 FindingFound not guilty.

12 Result In the result, the accused No.2 is found not guilty for the offence under Sections 457 and 380 of IPC and accordingly, he is acquitted under Section 248(1) Cr.P.C. The bail bonds of accused No.2 shall remain in force for a period of six (6) months as contemplated under Section 437(A) Cr.P.C.

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Accused No.2 should be released forthwith if he is not required in any other case. The material objects i.e., MO1-gold haram, MO.2 – one pair of Jukalu, MO3- four bangles,

MO.4- one gold chain, MO6- one pair of

Jukalu, MO.7 - one gold ring which were given to PW1 shall holds good after expiry of appeal time and MO5 shall return to its owner after expiry of appeal time.

13 Explanation for delay-

Sd/-Sri D.Vasu Dev

PRINCIPAL CIVIL JUDGE(JUNIOR DIVISION)-

CUM-JUDL.MAGISTRATE OF I CLASS, ELURU

FAC/II ADDITIONAL CIVIL JUDGE(JR. DIVISION)-CUM-

II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

ELURU.

Copy submitted to :

The Hon'ble I Additional District & Sessions Judge, W.G., Eluru.

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IN THE COURT OF PRINCIPAL CIVIL JUDGE(JUNIOR

DIVISION)-PRINCIPAL JUDICIAL MAGISTRATE OF I CLASS,

ELURU

FAC/ II ADDITIONAL JUNIOR CIVIL JUDGE-CUM-

II ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS,

ELURU.

Present: SRI S.VASU DEV,

Principal Civil Judge(Junior Division), Eluru

FAC/II Additional Junior Civil Judge-cum- II Additional Judicial Magistrate of First Class, Eluru

Wednesday, the 13th day of November, 2024

CALENDAR CASE NO.555/2016

FORM – A

Complainant State : Sub-Inspector of Police, II Town P.S., Eluru. (Cr.No.336/2015 of II Town P.S., Eluru. )

Represented by Learned Senior Assistant Public Prosecutor

Accused1.Kasthuri Appanna @ Veerappan, S/o. Satyanarayana, Aged 37 years, Voolapalli Village, E.G.Dist., 2.Pelivela Sattibabu, S/o. Late Venkanna, Aged 35 years, Settibalija, Rangapuram Village of Bikkavole Mandal, E.G.Dist., now at Hafeez Pet, Near Yellamma Temple, Hyderabad.

Represented by Sri T.S.S, counsel for Accused No.2.

FORM – B

Date of offence04.10.2015 Date of FIR04.10.2015 Date of Charge sheet18.05.2016 Date of Framing of Charges26.09.2016 Date of Commencement of evidence 27.09.2016 Date of which Judgment is reserved1311.2024 Date of the Judgment 13.11.2024 Date of the Sentencing Order, if any-

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ACCUSED DETAILS :

Rank Name of Date of Date of Offences Whether Senten Period of

of the accused arrest Release charged with Acquitted ce Detention

accus on Bail or impose Undergone

ed convicted d during Trial

for purpose of section 428 of Cr.P.C.

2.Kasthuri 13.11.Judicia457, 380 ofAcquitted- - Appanna @ 2024lIPC Veerappancustod y

This case was placed before me for final hearing on 13.11.2024 in the presence of learned Senior Assistant Public Prosecutor for the

Complainant and of Sri T.Subbaraya Sarma, Counsel for Accused No.2 and upon perusing the record and upon hearing both sides and the matter having stood upon for consideration till this day, this court delivered the following:

J U D G M E N T

The Sub-Inspector of Police, Eluru II Town P.S., Eluru has filed charge sheet against the accused in connection with Crime

No.336/2015 for the offence under Sections 457 and 380 r/w.34 of IPC.

02. The brief facts of the prosecution as per charge sheet are as follows:

[a] LW1 and LW2 slept in a AC room and the non AC room is kept vacate in the morning hours son of LW1 came to his house and he asked to open the door from ground floor and when they tried to open their room doors, it was locked from outside, on hearing the crises,

LW3 went to the house of LW1 and LW2 their house main door is

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opened and the AC room doors were bolted from outside, she opened the room bolt, LW1 and LW2 verified the non AC room, it is in pelmel condition and unknown offenders committed theft of MO1 to MO7 and another cell phone.

[b] Basing on the report given by LW1, registered the case by

LW16 and LW17 took up the investigation and examined the scene of offence in the presence of mediators and prepared rough sketch and examined the witnesses. Basing on the confession of Accused No.2,

LW9 recovered the property from the Manapuram gold, Boarabanda

Branch, Hyderabad. On 27.12.2015 LW15 recovered the property from the Manapuram gold, Boarbanda Branch, Hyderabad. Hence, the charge.

03. This Court has taken cognizance of the offence punishable under Sections 457 and 380 r/w.34 of IPC against the accused Nos.1 and 2.

04. On appearance of accused Nos.1 and 2, copies were furnished to them as contemplated under Section 207 of Cr.P.C.

05. Accused Nos.1 and 2 was examined under Section 239 of

Cr.P.C. Charges for the offence under Sections 457 and 380 of IPC were framed against the accused Nos.1 and2 and read over and explained to them in Telugu. They denied the charges, pleaded not guilty and claimed to be tried.

06. To prove the guilt of the accused Nos.1 and 2, the prosecution examined PW1 to PW11 and got marked Exhibits P1 to P9

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and material objects i.e. MO.1 to MO.7 were marked.

07. After completion of prosecution side evidence, Accused No.2 failed to appear before this court and the case was split up against

Accused No.2 and the same was numbered as CC No. 555/2016.

08. The case against Accused No.1 was ended in acquittal in CC

No.474/2016 on 27-04-2018.

09. Theaccused No.2 was examined under Sec.313 Cr.P.C., for the incriminating evidence found in the hands of the prosecution witnesses, the accused No.2 denied the same and reported no defence evidence on his behalf.

10. Heard the arguments of learned APP and the defence counsel.

11.Now the point for consideration is:Whether the

prosecution had proved the guilt of the accused for the offence

punishable under Sections 457 and 380 r/w.34 of IPC , beyond

reasonable doubt?

12. POINT:

[a] It is the case of prosecution that, the accused gained entrance into the PW1’s house and thereby committed theft of gold ornaments and cell phone and thereby the accused had committed an offence under section 457 and 380 of IPC. The defence of accused is totally denial and he was falsely implicated in this case and prayed to acquit him.

[b] To establish the guilt of the accused, the prosecution had examined PW1 to PW11. PW1 is the defacto complainant, PW2 is the

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wife of PW1, PW3 is the neighbours of PW1 and PW2, PW4 and PW5 are the mediator at the time of arrest of accused No.2, PW6 is the investigating officer, PW7 is the mediator, PW8 and PW9 are the investigating officer, PW10 is the who pledged the gold ornaments given by Accused No.2, PW11 is the Manager of Manapuram Finance

Company. Exhibit P1 is the report of PW1, Exhibit P2 is the mediator report, Exhibit P3 is the six receipts of Manapuram Finance, Exhibit P4 is the mediator report, Exhibit P5 is the scene observation report,

Exhibit P6 is the original FIR, Exhibit P7 mediator report, Exhibit P8 is the rough sketch, Exhibit P9 is the section 161 Cr.P.C statement of

PW10. MO1 is the gold haram, MO2 is the one pair of Jukalu, MO3 is the four bangles, MO4 is the one gold chain, MO5 is the one cell phone,

MO6 is the one pair of Jukalu, MO7 is the one gold ring.

[c] PW1 deposed that, on 31.07.2015 himself and his family member locked the his house doors and went to Hyderabad to his relatives house; on 02.08.2015 at 09.00 am they reached his house; after 09.00 pm himself and his wife slept his AC room; on 03.08.2015 at about 05.30 am his son Phani Kishore came to his house and knocked the door and doors were not opened; immediately LW3 came to her house and opened outside the door; on verified the non AC room the room is in Pel Mel condition; he noticed one gold haram, four bangles, one chain, two pairs of ear jukalu, one gold ring, cash of

Rs.8,000/- two cell phones found missing; then he went to the police station and gave a report to the police; police examined him; in the

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month of October, 2015 police informed him about the recovery of gold haram, two pair of Jukalu, four bangles, one gold chain one gold ring, one cell phone; except cell phone the above said gold ornaments he received interim custody through the Hon’ble Court; MO1 is gold haram,

MO2 is one pair of jukalu, MO3 is the four bangles, MO4 is the one gold chain, MO5 is the one cell phone, MO6 is the one pair of jukalu, MO7 is the one gold ring.

[d] PW2 deposed that on 31.07.2015 herself and her family member locked the her house doors and went to Hyderabad to her relatives house; on 02.08.2015 at 09.00 am they reached her house; after 09.00 pm herself and PW1 slept her AC room; on 03.08.2015 at about 05.30 am her son Phani Kishore came to her house and knocked the door and doors were not opened; immediately LW3 came to her house and opened outside the door; on verified the non AC room the room is in pelmel condition; she noticed one gold haram, four bangles, one chain, two pairs of ear jukalu, one gold ring, cash of Rs.8,000/- two cell phones found missing; then PW1 went to the police station and gave a report to the police; Police examined him; in the month of

October, 2015 informed her about the recovery of MO1 to MO7.

[e] PW3 deposed that on 03.08.2015 at about 05.30 am while he was present in his house, PW1 knocked the odors by the time PW1 son

LW4 Phanikishore reached his house unknown offender bolted outside the bed room; then she opened the room; immediately PW1 and PW2 came out their bed room; she came to know some unknown offender

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gained entered in to the another bed room of PW1 and committed theft of gold ornaments; Police examined her.

[f] PW4 deposed that on 14.10.2015 LW16/SI of Police, Eluru II

Town PS called him to the police station; accordingly he visited Eluru II

Town PS by the time LW11 was present in the police station; himself,

LW11 and police staff at about 09.00 am accompanied LW16 were proceeded to Hyderabad on Jeep, they reached Hyderabad Borebanda,

Near Pochamma Temple at about 03.00 pm by the time they noticed one persons standing near the Pochamma Temple, on seeing the police he try to skulk away; then LW16 detained the said persons with the help of his staff and asked his identity particulars he disclosed his identity as Accused No.2; he further confessed that he committed theft of gold ornaments Pathiapadu,Tuni, Kakinada, Samarlakota, Bikkavole,

Kadiyam, Bommuru, Visakhapatnam; the said East Godavari Police arrested and sent to Rajahmundry Central Jail, by the time one Kasthuri

Appanna closed him; after releasing the jail he set up his family at

Borubanda, Hyderabad in a rented house; in the month of August, 2015 one Kasthuri Appanna theft gold ornaments and handed over to him to request him to pledged the gold ornaments and arrange amount; the gold ornaments handed over his wife LW7 and his friend LW6 and he requested to pledged the above said gold ornaments; he further confessed that LW6 and LW7 pledged the gold ornaments at

Manppuram Gold Finance and arrange amount; Accused No.2 handed over pledge receipt to LW16; then Accused No.2 produced LW16 one

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gold ring and one pair of gold jukalu; then LW16 police arrested

Accused NO.2 and seized Manappuram Finance receipts, one gold ring, one pair of gold jukalu, one cell phone under the cover of mediator report; LW11 drafted mediator report; Ex.P2 is meditator report in which himself, LW11, LW16 signed; LW16, SI of police also obtained the signature of Accused No.2 in Ex.P2; Ex.P3 is six receipts of Manppuram

Finance; he signed in Ex.P3 receipts and himself, LW11, LW16; LW16 also obtained the signature of Accused NO.2 in Ex.P3; again they proceeded to manappuram Finance Company at about 05.30 pm by the time LW8, who is manager was present in the said shop, LW16 showing

Ex.P3 receipts; LW8 produced gold haram, one pair of ear jukalu, four gold bangles and one gold chain; LW16 sized above said ornaments under the cover of mediator report; he drafted mediator report; Ex.P4 is mediator report in which, LW11, LW16 singed on it; LW16 also obtained the signature of Accused NO.2 in Ex.P.4.

[g] PW5 deposed that on 03.08.2015 at about 10.00 am

LW17/U.Bangarraju, Inspector of Police called him to the Eluru II Town

P.S; accordingly he visited II Town PS by the time LW10 was present in the station; himself, LW10 and police staff accompanied LW17 were proceeded to scene of offence which is situated PW1 house at about 01.00 am the said house is terraced building; in their presence LW17 observed the scene of offence; the bed room is in pelmel condition and the bed room doors were broke opened; in their presence clue team obtained chance prints; he drafted scene observation report; Ex.P5 is

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the scene observation report in which himself, LW10, LW17 singed on it.

[h] PW6 deposed that on 03.08.2015 at about 10.00 am while he was present in the station by the time PW1 came to police station and presented a written report under ExP1, basing on it he registered a case in Cr.No.336/2015 under Sec.457, 380 of IPC; original FIR submitted to the Hon’ble Court and copies furnished all the concerned officials; LW17 /Inspector of Police took up investigation in this case; on 14.10.2015 at about 08.00 am while he was present in the police, he received credible information about the moments of culprits and he secured the mediators i.e., PW4, LW11 and his staff proceeded on private vehicle and they reached Bore Bonda, near Pochamma temple,

Hyderabad at about 04.45 pm, by the time they notice three persons present near Pochamma temple, one seeing them they are try to skulk away; then he detained one person with the help of his staff and asked his identity particulars; he disclosed his identity as Accused No.2; he further confessed that he is resident of Bikkavoue, East Godavari

District; now he is resident of Borebanda, Hyderabad; previously he committed theft of gold ornaments Samarlakota, Bikkavolue, Pedapadi,

Kadiya, Bommuru, Nidadavolu, Kakinada, Dwarapudi, narsipatnam and

Visakhaptnam and East Godavari Police arrested and produced central jail, Rajahmundry; in the central Prision one Kasthuri Appanna was close to him; in the month of August, 2015 one Kasthuri Appanna came to his house and handed over gold ornaments and requested him to pledged the above said gold ornaments; Accused No.2 further

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confessed that one gold haram, four gold bangles, one gold chain, one pair of ear jukalu handed over LW6 to request to pledge the amount; accordingly LW6 pledged the above said gold ornaments at

Manappuram Finance Company, Borebanda; some of the gold ornaments pledged through his wife i.e., LW7 to Manappuram Finance

Company; Accused No.2 produced six receipts of pledge receipts pertaining to Manappuram Finance Company and accused No2.

Produced one pair of gold ear jukalu, gold ring, one cell phone; then he sized above said items and arrested accused No.2 under the cover of mediator report; LW11 drafted the mediator report under Ex.P2 in which himself, PW4, LW11 and also obtained the signature of Accused

No.2 in Ex.P2; later they proceeded to house of Accused NO.2 and he secured LW6, LW7 along with accused No.2 and mediators were proceeded to Manapuram Finance Company at about 05.30 pm by the time LW8 was present in the Finance Company and he showed Ex.P.3 receipts to LW8; then he informed the said gold ornaments pledged

LW6 and LW7 theft case property; then LW8 after consulting superior officers he produced gold haram, one pair of ear jukalu, one gold chain, four gold bangles; then he seized above said ornaments under the cover of mediator report; PW4 drafted mediator report under Ex.P4 in which himself, PW4, LW11; he also obtained the signature of Accused

No.2 in Ex.P4; he secured the witnesses I..e, LW6 to LW8 and recorded their statements under Sec.161 Cr.P.C; later they returned the Eluru along with Accused No.2 and case property; on the next day he

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produced Accused NO.2 before the Hon’ble for judicial remand; on 28.12.2015 LW15/Inspector of Police produced the accused before the

Hon’ble II AJFCM, Tadepalligudem for judicial remand; later he obtained

copy of mediator report from LW15; he filed a requisition before the

Hon’ble Court to issue PT warrant; accordingly the Hon’ble Court for

judicial remand on PT warrant; further investigation taken up by LW17 /

Inspector of Police.

[i]PW7 deposed that on 27.12.2015 at about 05.00 am at the request of Chebrolu PS; accordingly he visited Chebrolu PS by the time

LW14 was present in the police station; himself, LW14 and police staff accompanied LW15 were proceeded to New By-pass Bridge,

Tadepalligudem at about 06.00 am by the time they noticed one persons standing near road side margin and holding one bag, on seeing the police he try to skulk away; LW15 detained the said persons with the help of his staff and asked his identity particulars, he disclosed his identity as Accused No.1; he further confessed that he committed theft of gold ornaments in and around Kakinada, Samarlakota, Unguturu and

Eluru II Town P.S limits in the month of August first week 2015 committed theft of one gold haram, one gold chain, two pairs of ear jukalu, one gold ring, four gold bangles and cash of Rs.3,000/-; LW15,

Inspector Police seized some gold ornaments pertaining to Chebrolu crime; LW15 arrested Accused NO.1 and seized above said gold ornaments pertaining to Chebrolu PS under the cover of mediator report; he drafted mediator report; Ex.P7 is mediator report in which

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himself, LW14, LW15 singed on it; LW15 also obtained the signature of

Accused No.1 in Ex.P.7.

[j] PW8 deposed that on 27.12.2015 while he was present in the station he received the credible information about the moments of

Culprits in Cr.No.165/2015 of Chebrolu PS; then he secured the PW7,

LW14 and his staff and Nidamarru SI of Police were proceeded to New

Bridge Byepass Road, Tadepalligudem at about 06.00 am, by the time they noticed one persons standing near road side margin and holding one bag, on seeing them he try to skulk away; he detailed the said persons with the help of his staff and asked his identity particulars, he disclosed his identity as Accused No.1; he further confessed that he committed theft of gold ornaments in and around Kakinada,

Samarlakota, Unguturu and Eluru II Town PS limits in the month of

August first week 2015 committed theft of one gold haram, one gold chain, two pairs of ear jukalu, one gold ring, four gold bangles and cash of Rs.3,000/-; he seized some gold ornaments pertaining to Chebrolu crime in Cr.NO.165/2015; then he arrested Accused No.12 and seized above said gold ornaments pertaining to Cherbrolu PS under the cover of mediator report; PW7 drafted mediator report under ExP7 in which himself, LW14, PW7, Nidamarru SI signed on it; he also obtained the signature of Accused No.1 in Ex.P7; later they returned the station along with accused No.1 and case property and he produced Accused

No.1 before the Hon’ble II AJFCM, Tadepalligudem; later he informed about the arrest of accused NO.1 to SHO, Eluru II Town PS and he

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handed over copy of mediator report.

[k] PW9 deposed that on 03.08.2015 at 10.00 am in his temporary absence PW6 registered the case and sent copy of FIR to him and verified the contents of ExP1; he examined PW1 and recorded his statement under Sec.161 Cr.P.C; he secured PW5, LW10 and proceeded to scene of offence which is situated at PW1 house,

Badetivari Street, Eluru; he examined scene of offence and he got drat3ed scene observation report; PW5 drafted scene observation report under ExP5 in which himself, PW5, LW10 singed on it; at the time scene of offence he prepared rough sketch of the scene of offence;

Ex.P8 is rough sketch of the scene of offence; at the scene of offence he secured the witnesses PW2 and PW3, LW4 and LW5 and A.V. Phani

Kishore, K.Lakshmi examined and recorded their statements under

Sec.161k Cr.P.C; after completion of investigation he filed charge sheet.

[l] PW11 deposed that on 04.08.2015 LW6 R.Sathi Raju came to his office and pledged gold necklace one pair of ear studs and two bangles; then he gave an amount of Rs.1,39,600/-; accordingly he issued receipts; on the next day ie.., 05.08.2015 against LW6 came to his office and pledge two gold bangles and he gave an amount of

Rs.40,000/-; accordingly he issued receipts; on 19.09.2015 PW10 came to his office and she pledge gold chain for an amount of Rs.17,500/-; accordingly he issued receipt; on 14.10.2015 the Eluru II Town SI i.e.,

PW6 along with two mediators PW10, LW6 came to his office and SI of police informed him the above said gold ornaments thefted properties

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and he showed Ex.P3; immediately he contacted his superior officers on the advice of his superior officers he handed over above said gold ornaments to PW6 in the presence of mediators.

[m] PW4 deposed in his cross examination that this is the first mediator report he drafted the police; on the dictation of police he drafted mediator report; in his presence of police did not examine independent witness; he is not having personal acquaintance with accused. It is true place of arrest of Accused No.2 is a busy locality and he did not mention the descriptive particulars of MO1 to MO4 and MO6 and MO7 in Ex.P4. He denied the suggestion that he did not go to the place of arrest of accused No.2 and that nothing was seized from his possession of accused NO.2 in his presence and he is deposing false with the help of police and accused No.2 is no way concerned in this case and at the request of police he drafted Ex.P3 and P4 in the police station.

[n] PW5 deposed in his cross examination that he went to the police stating in the evening on the date of offence; his house owner is one Suryanarayana Raju is residing at Hyderabad. He denied the suggestion that in their present LW17 observed the scene of offence and he drafted Ex.P5 in the police station at the instance of police.

[o] PW6 deposed in his cross examination that he denied the suggestion that he did not seize any property from the possession of accused No.1 and his investigation is table investigation and that he got drafted Ex.P2 and P4 in the police station with the help of PW4.

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[p] PW7 deposed in his cross examination that it is true the place of arrest of accused No.1 is not their jurisdiction. He denied the suggestion that the place of arrest of accused No.1 is busy locality and drafted Ex.P7 in the police station at the instance of police and the place of arrest of accused No.1 is busy locality and he drafted Ex.P7 in the police station at the instance of police.

[q] PW8 deposed in his cross examination that it is true PW7 of

Kaikaram and PW7 not belongs to Tadepalligudem VRO and he did not secure the local inhabitants at the place of arrest of accused NO.1 to act as mediators. He denied the suggestion that he got drafted Ex.P7 in the police station with the help of PW7.

[r] PW9 deposed in his cross examination that he have not conduction any property identification test. He denied the suggestion that he did not go to scene of offence and did not prepared rough sketch of the scene of offence and did not examine the witnesses at the scene of offence.

[s] PW10 deposed in his cross examination that he denied the suggestion that he state to the police as in Ex.P9 is his 161 Cr.P.C statement and he is deposing false to help the accused as he have compromised the matter with accused.

[t] PW11 deposed in his cross examination that he was not present as Manager Manappuram Financne at the time when PW10 and

LW6 pledge gold ornaments; except PW6, other police staff and accused approached him none of them approached him. It is true his

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predecessor did not obtain gold receipts pertaining to M.O.1 to M.O7.

He denied the suggestion that he is deposing false at the instance of police and PW10 and LW6 did not approached him and did not pledged gold ornaments.

[u] From the evidence of PW1 to PW3, it is clear that some unknown persons gained entrance in to the house of PW1 and committed theft of gold ornaments and two cell phones. Now, it has to be seen whether the accused No.2 is one of person involved in commission of offence.To prove the commission of offence under

Section 457 and 380 of IPC, the prosecution relied upon the evidences of PW4. PW4 is the mediator at the time of arrest of Accused No.2 and in the presence of PW4, the investigating officer had seized the property and recorded his confession. The confession was made in the presence of police officer and there is no recovery made by Accused

No.2 in pursuance of confession. So, the confession made by Accused

No.2 is hit by Section 25 of Indian Evidence Act. Hence, the evidence of

PW4 cannot be relied trustworthy. Hence, from the above discussion, this court holds that the prosecution failed to establish the guilt of the accused No.2 for the offence under section 457 and 380 of IPC.

13.In the result, the accused No.2 is found not guilty for the offence under Sections 457 and 380 of IPC and accordingly, he is acquitted under Section 248(1) Cr.P.C. The bail bonds of accused No.2 shall remain in force for a period of six (6) months as contemplated under Section 437(A) Cr.P.C. Accused No.2 should be released forthwith

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if he is not required in any other case. The material objects i.e., MO1- gold haram, MO.2 – one pair of Jukalu, MO3- four bangles, MO.4- one gold chain, MO6- one pair of Jukalu, MO.7 - one gold ring which were given to PW1 shall holds good after expiry of appeal time and MO5 shall return to its owner after expiry of appeal time.

Typed directly to my dictation by the Stenographer, corrected and pronounced by me in open court, this the 13th day of November, 2024.

Sd/-Sri D.Vasu Dev

PRINCIPAL CIVIL JUDGE(JUNIOR DIVISION)-

CUM-JUDL.MAGISTRATE OF I CLASS, ELURU

FAC/II ADDITIONAL CIVIL JUDGE(JR. DIVISION)-

CUM-II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

ELURU.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution:-

RANK NAME NATURE OF EVIDENCE

(Eye witness, Police Witness, Expert witness, Medical witness, Panch witness, other witness)

PW.1A.K.Visweswara RaoDefacto – complainant

PW.2A.VaralakshmiWife of PW1

PW.3K.RamadeviNeighbours of PW1 and PW2

PW.4A.S.UmashankarMediator

PW.5K.Veerabhadra RaoMediator

PW.6A.Durga RaoInvestigating Officer

PW.7V.VenugopalMediator

PW.8N.Durga PrasadInvestigating Officer

PW.9U.BangarrajuInvestigating Officer

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PW.10P.TalupulammaWho pledged the gold ornaments

PW.11B.BalkrishnaManager of Manappuram Finance Company

For Defence Evidence:-

RANK NAME NATURE OF EVIDENCE

(Eye witness, Police Witness, Expert witness, Medical witness, Panch witness, other witness) NIL

DOCUMENTS MARKED

For Prosecution :-

Exhibit P1: Report of PW1

Exhibit P2 : Mediator report

Exhibit P3: Six receipts of Manapuram finance

Exhibit P4: Mediator report

Exhibit P5: Scene observation report

Exhibit P6: Original First Information report

Exhibit P7: Mediator report

Exhibit P8: Rough sketch

Exhibit P9 : Section 161 Cr.P.C statement of PW10

For Defence :-- Nil -.

MATERIAL OBJECTS

MO.1 – Gold haram

M.O.2 – One pair of Jukalu

M.O.3 – Four Bangles

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M.O.4 – One gold chain

M.O.5 – One cell phone

M.O.6 – One pair of Jukalu

M.O.7 – One gold ring

Sd/-Sri D.Vasu Dev

PRINCIPAL CIVIL JUDGE(JUNIOR DIVISION)-

CUM-JUDL.MAGISTRATE OF I CLASS, ELURU

FAC/II ADDITIONAL CIVIL JUDGE(JR. DIVISION)-

CUM-II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

ELURU.

II AJFCM, ELURU 1 C.C.No.583/2018

DATED 14.08.2023

CALENDAR AND JUDGMENT

IN THE COURT OF II ADDITIONAL JUNIOR CIVIL JUDGE-CUM-

II ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS, ELURU.

CALENDAR CASE NO.583/2018

1Date of Offence 01.03.2018 2Date of Complaint22.03.2018 3Date of Apprehension of Accused- 4Date of Commencement of Trial08.07.2019 5 Date of Closure of Trial 07.08.2023 6Date of Judgment 14.08.2023 7ComplainantSiddantham Tulasamma, W/o Rambabu, Hindu, Female, Aged 63 Years, Properties, Dr.No.15-72, MPP School Road, Maruthi Nagar, Chintalapudi. 8Name of the Accused Pulicherla Naga Venkata Satya Krishna Bhaskar,S/o Gangadhara Rao, Hindu, Male, Aged 39 Years, H/o Sri G.Eswara Rao, Dr.No.3-15, Sri Barahmananda Nilayam, Naga Devatha Temple Street, Satrampadu, Eluru. 9OffenceUnder Section 138 of Negotiable Instrument Act 10 Plea of AccusedPleaded not guilty.

11 FindingFound Guilty.

12 ResultIn the result, the sole accused is found guilty for the offence under sections 138 and 142 of the Negotiable Instruments Act, 1881 and accordingly, he is convicted for the same under section 255 (2) Cr.P.C. The accused is sentenced to undergo Simple Imprisonment for a period of 1 [ONE] year and to pay a fine of Rs.4,10,000/- and in default of payment of fine to undergo further imprisonment for 3 months, for the offence punishable Under section 138 and 142 of Negotiable Instruments Act, 1881. Rs.4,00,000/- is ordered to be paid to complainant as compensation Under section 357 Cr.P.C. The accused had not undergone any remand period. 13 Explanation for delay- // SD/- S.VASU DEV //

II ADDITIONAL JUNIOR CIVIL JUDGE-CUM-

II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

ELURU. Copy submitted to :

The Hon'ble I Additional District & Sessions Judge, W.G., Eluru through CD.

// TRUE COPY //

II AJFCM, ELURU.

II AJFCM, ELURU 2 C.C.No.583/2018

DATED 14.08.2023

IN THE COURT OF II ADDITIONAL JUNIOR CIVIL JUDGE-CUM-

II ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS, ELURU.

Present: SRI S. VASU DEV,

II Additional Junior Civil Judge-cum- II Additional Judicial Magistrate of First Class, Eluru

Monday, the 14th day of AUGUST, 2023

CALENDAR CASE NO.583/2018

FORM – A

ComplainantSiddantham Tulasamma, W/o Rambabu, Hindu, Female, Aged 63 Years, Properties, Dr.No.15-72, MPP School Road, Maruthi Nagar, Chintalapudi. Represented by Sri G.Ronald Raju, Advocate, Eluru. AccusedPulicherla Naga Venkata Satya Krishna Bhaskar, S/o Gangadhara Rao, Hindu, Male, Aged 39 Years, H/o Sri G.Eswara Rao, Dr.No.3-15, Sri Barahmananda Nilayam, Naga Devatha Temple Street, Satrampadu, Eluru. Represented by Sri K.Jagadeesh Naga Kumar, Advocate, Eluru.

FORM – B

Date of offence01.03.2018 Date of FIR- Date of complaint22.03.2018 Date of examination09.05.2018 Date of Commencement of evidence 08.07.2019 Date of which Judgment is reserved07.08.2023 Date of the Judgment 14.08.2023 Date of the Sentencing Order, if any14.08.2023

ACCUSED DETAILS :

Rank Name of Date Date of Offences Whether Senten Period of

of the accused of Release charged with Acquitted ce Detention

accus arrest on Bail or impose Undergone

ed convicted d during Trial

for purpose of section 428 of Cr.P.C.

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DATED 14.08.2023

1.Pulicherla- -Sec.138 &convictedOne- year Naga Venkata142of

and

Satya Negotiable Rs.4,10, KrishnaInstrument 000/- BhaskarAct.

This case was placed before me for final hearing on 07.08.2023 in the presence of Sri G. Ronald Raju, Advocate for the Complainant and of

Sri K. Jagadeesh Naga Kumar, Advocate for Accused and upon perusing the record and upon hearing the both counsels and the matter having stood upon for consideration till this day, this court delivered the following:

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

The complainant filed this complaint against the accused for the offence punishable under sections 138 and 142 of Negotiable Instruments

Act.

02. The brief averments of the complaint are as follows:-

The accused borrowed an amount of Rs.5,00,000/- from the complainant on 05.10.2016 and executed a promissory note agreeing to repay the same with compound rate of interest at the rate of 24% per annum. Inspite of repeated demands made by the complainant, the accused issued cheque bearing No.000002 dated 17.01.2018 for

Rs.4,00,000/- in favour of complainant drawn on Lakshmi Vilas Bank, Eluru towards part payment. The complainant presented the said cheque with her Banker, Lakshmi Vilas Bank, Eluru, and the said cheque was returned with endorsement stating that “Funds Insufficient” along with cheque return memo dated: 01.02.2018. The complainant got issued a legal notice on 08.02.2018 to the accused calling upon him to pay cheque amount within 15 days from the date of receipt of the said notice and the notice sent to the accused was received and got issued reply notice with false allegations on 13.02.2018 and failed to make payment. Hence, the

II AJFCM, ELURU 4 C.C.No.583/2018

DATED 14.08.2023

accused committed an offence punishable under section 138 of Negotiable

Instruments Act.

03. On consideration to the sworn affidavit filed by the complainant and the complaint, the complaint was taken on file against the accused

Under Sections 138 and 142 of Negotiable Instruments Act on the file of this Court.

04. On appearance of the accused, the copies of relevant documents were supplied to the accused.

05. The Accused was examined Under Section 251 of Cr.P.C. The accusation was read over and explained to the accused in vernacular language and the accused pleaded not guilty of the offence punishable

Under Sections 138 and 142 of Negotiable Instruments Act and claimed to make his defence.

06. To prove the offence, the complainant himself examined as PW1 and got marked Exhibits P1 to P6. The scribe of Exhibit P5- promissory note was examined as PW2 and also got marked Exhibits D1 to D3 through the cross examination of PW.2.

07. On the closure of the evidence of complainant, the accused was examined under section 313 of Cr.P.C., he denied the incriminating material available in the evidence of PW1 and PW2, and the accused reported that he has defence evidence and later, he did not adduce any evidence on his side.

08. Heard both sides. Perused the written arguments filed by counsel for complainant.

09.Now the point for determination is:“Whether the

complainant had established the guilt of the accused for the

offence punishable Under Sections 138 and 142 of Negotiable

Instruments Act, beyond reasonable doubt?”

10. POINT:-

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DATED 14.08.2023

[a] It is the case of the complainant that, the accused borrowed an amount of Rs.5,00,000/- from the complainant on 05.10.2016 and executed promissory note in favour of complainant agreeing to repay the same with interest at the rate of 24% per annum for Rs.5,00,000/-. Inspite of repeated demands made by the complainant, the accused issued cheque bearing No.000002, dated: 17.01.2018 for Rs.4,00,000/- in favour of complainant drawn on Lakshmi Vilas Bank, Eluru towards part payment.

The complainant presented the said cheque with her Banker, Lakshmi Vilas

Bank, Eluru and the said cheque was returned with endorsement stating that “Funds Insufficient” along with a return memo on 01.02.2018. Then the complainant got issued a legal notice on 08.02.2018 to the accused calling upon him to pay cheque amount within 15 days from the date of receipt of the said notice and the said notice sent to the accused was served and the accused got issued reply notice to the complainant on 16.02.2018 with false allegations and failed to make payment. Hence, the accused committed an offence punishable under section 138 of Negotiable

Instruments Act.

[b] To prove the offence under section 138 of Negotiable

Instruments Act, the following are five essential ingredients:

1) Drawing of cheque;

2) Presentation of the cheque to the Bank;

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) Failure of the drawer to make payment within 15 days of the receipt of notice.

[c]To establish the said components, the complainant sworn in as

PW1 and got marked Exhibits P1 to P6. She stated in her evidence that, the accused borrowed an amount of Rs.5,00,000/- from him on 05.10.2016 and executed Exhibit P5-certified copy of promissory note in favour of

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DATED 14.08.2023

complainant agreeing to repay the same with interest at the rate of 24% per annum for Rs.5,00,000/-. Inspite of repeated demands made by the complainant, the accused issued Exhibit P1- cheque bearing No.000002

dated: 17.01.2018 for Rs.4,00,000/- in favour of complainant drawn on

Lakshmi Vilas Bank, Eluru towards part payment. Then the complainant presented the said cheque with her Banker, Lakshmi Vilas Bank, Eluru. The said cheque was returned with endorsement stating that “Funds

Insufficient” with a return memo on 01.02.2018 under Exhibit P2. The complainant got issued Exhibit P3-legal notice to the accused on 08.02.2018 calling upon him to pay cheque amount within 15 days from the date of receipt of the said notice. The said legal notice was served to the accused and the same was marked as Exhibit P4 and the accused got issued reply notice with false allegations on 16.02.2018 under Exhibit P6.

The accused failed to make payment within 15 days from the date of return of notice and the accused got intentionally issued Exhibit P1 – cheque, in order to defeat the claim of the complainant and thereby committed an offence Under Sections 138 read with 142 of the Negotiable

Instruments Act. The evidence of PW1 is not shattered in any manner in the cross-examination. Thus, from the evidence of PW1 the five components are established.

[d] The complainant to prove the execution of Exhibit P5- certified copy of promissory note had examined the scribe as PW2. PW1 and PW2 categorically testified in cross-examination that, the accused borrowed an amount of Rs.5,00,000/- on 05.10.2016 and executed Exhibit P5- certified copy of promissory note for Rs.5,00,000/-. Their evidence is clear and consistent and not at all discredited in any manner during cross- examination. Thus, it can be concluded that, PW1 had established the promissory note under Exhibit P5 was executed by accused and that there was legally enforceable debt. Further, the accused also failed to discredit

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DATED 14.08.2023

the issuance of Exhibit P1- cheque to PW1 towards discharge of Exhibit P5- certified copy of promissory note.

[e] The learned counsel for complainant had relied upon the judgment of Hon’ble Supreme Court reported in Bir Singh V Mukesh

Kumar,Hon'ble Apex court has held that "A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular,sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted".

[f] Since, the complainant through his evidence as PW1 and PW2 has established the factual basis for raising of presumption Under sections 138 and 139 of Negotiable Instruments Act, he is entitled for drawal of presumption and if the accused fails to disprove it. It is the defence of accused that, the complainant is not having such financial capacity to lend amount much-less Rs.5,00,000/- to accused and he gave two empty signed cheques and two empty signed promissory notes to complainant when his father-in-law borrowed an amount of Rs.1,00,000/- from the complainant and there is no financial transaction between him and accused and prayed to acquit him.

[g] Now, it has to be seen that, the accused could rebut the presumption. It is an established legal principle that to disprove the presumption, the accused has to establish his case by preponderance of probabilities.

[h] It is well settled law that the accused can rely on the material placed by the complainant and he can rebut the presumption through effective cross-examination of complainant and his supported witnesses,

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DATED 14.08.2023

even accused need not get into the witness box to give evidence in support of his defence. No doubt, the accused has admitted signature on the cheque, on such admission the complainant is entitled for presumption as per the law. But, it is a rebuttal presumption. If the accused rebutted the presumption by producing documentary evidence or by eliciting from the mouth of complainant in the cross-examination, then again burden of proof shifts on on the complainant to prove his case.

[i] In the case on hand, the main contention of accused is that, he gave two cheques and two promissory notes to PW1 towards security for the amount borrowed by his father-in-law. The learned counsel for accused argued that he demanded the complainant by way of reply notice to return the blank cheques and promissory notes which were given to PW1. As seen from Exhibit P6- reply notice, the accused declared that he borrowed an amount of Rs.50,000/- from PW1 in the year 2016 agreeing to repay the same with interest at the rate of Rs.5/- per month and at the time of borrowing the said amount, PW1 insisted the accused to sign on unfilled promissory notes, cheques, unfilled stamp papers and handover his original documents in respect of his site and as the accused was in dire need for amount, he agreed for the same and gave two signed unfilled promissory notes, two signed unfilled cheques drawn on Lakshmi Vilas

Bank, Eluru, two signed unfilled Rs.100/- stamp papers and handed over original sale deed dated: 30.05.2011 to PW1. As per the cross-examination of PW1, he had taken defence that the father-in-law of accused borrowed amount from PW1 and he gave two blank signed cheques and two blank signed promissory notes as a security and whereas as per Exhibit P5- reply notice depicts that he borrowed an amount of Rs.50,000/- from PW1 and gave the said documents to him in the year 2016. The defence of the accused is quite contra. To prove the same except his self serving statement, the accused has not placed any believable supportive evidence

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DATED 14.08.2023

in said connection. No piece of document is produced to establish alleged borrowal of Rs.50,000/- either by him or borrowal of Rs.1,00,000/- by his father-in-law. That apart, if at all the complainant has not returned the cheques or other documents allegedly took him as security, what prevented the accused to lodge a police complaint or to take suitable steps to secure the said cheques or to give intimation to the bank to stop the payment, is not satisfactorily explained. The accused has not taken any steps either by lodging the complainant or issuing of legal notice calling upon the complainant to return back the so called security cheques. A prudent man under the normal circumstances will not sit quite without taking any efforts to take back his blank signed cheques or other documents which creates doubt in the mind of the court regarding the genuineness of the defence taken by the accused. This aspect clearly shows that he has issued cheque in question for repayment of loan amount, so he has not chosen to take any action to take back his cheque.

The judgment relied by complainant in the case of Bir Singh’s is aptly applicable to this case.

[j] The another defence taken by him is source of income. The learned counsel for accused argued that, as per the evidence of PW1, she herself stated that, her annual income is in between Rs.15,000/- to

Rs.20,000/-. So, PW1 is not having source of income to lend amount. For argument sake, it is assumed that PW1 is not having sufficient source of income to advance loan, then according to accused, he borrowed

Rs.50,000/- from PW1 and his father-in-law borrowed amount of

Rs.1,00,000/-. The defence of accused itself seems to be indefinite.

Further, on this aspect, this court is relying on the Judgment of Hon’ble

Supreme Court reported in the case of Rohitbhai Jivanlal Patel Vs.

State of Gujarat and Another,wherein the Hon’ble Apex court held that, “Once presumption of existence of legally enforceable debt drawn in favour of

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DATED 14.08.2023

complainant, onus is shifted on accused, unless onus is discharged by accused that preponderance of probabilities are tilting in his favour, doubt on case of complainant cannot be raised for want of evidence regarding source of funds for advancing loan to accused”.

[k] Here, in the instant case, the accused failed to discharge his onus and as such, he cannot raise doubt on case of complainant that, she is not having sufficient source of fund for advancing loan to accused. There is no material placed by accused to enable this Court to presume that the defence is probable. Thus, the accused failed to prove his defence. In these circumstances this court is bound to draw the presumptions under sections 138 and 139 of Negotiable Instruments Act in favour of the complainant. When these presumptions are drawn in favour of the complainant this court shall presume that Exhibit P1 - cheque was given by the accused in discharge of a legally enforceable debt covered by

Exhibit P5 - Promissory note.

[l] From the above mentioned reasons, this court holds that the complainant established the guilt of the accused for the offence under section 138 of Negotiable Instruments Act.

11. In the result, the sole accused is found guilty for the offence under sections 138 and 142 of the Negotiable Instruments Act, 1881 and accordingly, he is convicted for the same under section 255 (2) Cr.P.C.

Typed directly to my dictation by the stenographer, corrected and pronounced by me in the open Court, this the 14th day of August, 2023.

// SD/- S.VASU DEV //

II ADDITIONAL JUNIOR CIVIL JUDGE-CUM-

II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

ELURU

When the accused is questioned regarding quantum of sentence to be imposed, he stated that, he is having daughter and son and they are studying 6th class and 4th class respectively and his entire family was

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DATED 14.08.2023

depending on him and if he is sent to jail, his entire family will starve for food and prayed to take a lenient view. The cheque was issued for

Rs.4,00,000/- and the said cheque was issued by the accused without maintaining sufficient funds in the account. In these circumstances this is not sound case where the accused is entitled for benefits under sections 3 and 4 of Probation of offenders Act. Considering the nature of offence and submission of the accused, this court is of opinion that if accused is sentenced to undergo simple imprisonment for a period of 1 [ONE] YEAR and a fine of Rs.4,10,000/- [RUPEES FOUR LAKH TEN THOUSAND ONLY] out of fine amount an amount of Rs.4,00,000/- [RUPEES FOUR LAKHS ONLY] to be paid to complainant under section 357 of Cr.P.C will meet the ends justice and in default of payment of fine the accused shall undergo Simple

Imprisonment for a period of 3 months.

Therefore, the accused is sentenced to undergo Simple

Imprisonment for a period of 1 [ONE] year and to pay a fine of

Rs.4,10,000/- [RUPEES FOUR LAKH TEN THOUSAND ONLY] and in default of payment of fine to undergo further imprisonment for 3 months, for the offence punishable Under section 138 and 142 of Negotiable Instruments

Act, 1881. Out of fine amount, Rs.4,00,000/- [RUPEES FOUR LAKH ONLY] is ordered to be paid to complainant as compensation Under section 357

Cr.P.C. The accused had not undergone any remand period.

// SD/- S.VASU DEV //

II ADDITIONAL JUNIOR CIVIL JUDGE-CUM-

II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

ELURU

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution:-

RANK NAME NATURE OF EVIDENCE

(Eye witness, Police Witness, Expert witness, Medical witness, Panch witness, other witness) PW.1S.TulasammaComplainant

II AJFCM, ELURU 12 C.C.No.583/2018

DATED 14.08.2023

PW.2S.Rama KrishnaComplainant witness

For Defence Evidence:-

RANK NAME NATURE OF EVIDENCE

(Eye witness, Police Witness, Expert witness, Medical witness, Panch witness, other witness) NIL

EXHIBITS MARKED FOR

COMPLAINANT :

Exhibit P1- Original Cheque bearing No.000002 dated 17.01.2018 for

Rs.4,00,000/- of Lakshmi Vilas Bank, Eluru issued by the

Accused in favour of complainant.

Exhibit P2- Cheque return memo dt.01.02.2018 of Lakshmi Vilas Bank,

Eluru.

Exhibit P3- Office copy of legal notice dated 08.02.2018.

Exhibit P4- Served postal acknowledgment dated 15.02.2018.

Exhibit P5- Certified copy of promissory note dated 05.10.2016 for

Rs.5,00,000/- executed by the accused in favour of complainant.

Exhibit P6- Reply notice got issued by the accused dated 16.02.2018.

DEFENCE:

Exhibit D1 – Relevant marked portion in the deposition of PW.2 in OS.No. 133/2018 on the file of Additional Senior Civil Judge’s Court, Eluru.

Exhibit D2 – Relevant marked portion in the deposition of PW.2 in OS.No. 133/2018 on the file of Additional Senior Civil Judge’s Court, Eluru.

Exhibit D3 – Relevant marked portion in the deposition of PW.2 in OS.No. 133/2018 on the file of Additional Senior Civil Judge’s Court, Eluru.

// SD/- S.VASU DEV //

II AJFCM, ELURU.

// TRUE COPY //

II AJFCM, ELURU.

II AJFCM, ELURU 1 CC No. 54 of 2022

Dated 16.08.2023

CALENDAR AND JUDGMENT

IN THE COURT OF II ADDITIONAL JUNIOR CIVIL JUDGE-CUM-

II ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS, ELURU.

CALENDAR CASE NO.54/2022

1Date of Offence 18.10.2021 2Date of Complaint18.10.2021 3Date of Apprehension of Served Section 41-A Cr.P.C. Notice to Accused. Accused 4Date of Commencement of 09.05.2023 Trial 5Date of Closure of Trial 08.08.2023 6Date of Judgment 16.08.2023 7ComplainantSub-Inspector of Police, II Town P.S., Eluru. (Cr.No.892/2021 of II Town P.S., Eluru. ) 8Name of the Accused 1. Yegireddy Sivaiah, S/o Venkata Rao, aged 45 Years, C/K.Velama, Opposite to Boorada Gowri Mandir, Kothapet, Eluru.

2. Macha Srinivasarao, S/o Sambaiah, Aged 50 Years, C/K.Velama, Opposite to Boorada Gowri Mandir, Kothapet, Eluru.

3. Vennelaganti Srinivasrao, S/o Gopi @ Gopinadh, C/Devangula, Hotel Worker, Vasa Vari Street, R.R.Pet, Eluru.

4. Jerripothula Appala Naidu, S/o Simhadri, Aged 33 Years, C/T.Kapu, Kandrikagudem, Eluru.

5. Gedela Srinivasarao, S/o Veera Raghavulu, Aged 54 Years, C/K.Velama, AKG Center, Kothapet, Eluru.

6. Balina Ramu, S/o Nageswara Rao, Aged 34 Years, C/Gowda, Jogannapalem, Denduluru Mandal.

7. Adidela Dileep, S/o Yesu Rakshana Raju, Aged 36 Years, C/SC-Mala, Dondapadu, Eluru.

8. Didde Kishore Mandela, S/o late Sampath, Aged 32 Years, C/SC-Madiga, Titus Nagar, Eluru.

9 OffenceUnder Sections 3 & 4 of AP Gaming Act. 10 Plea of AccusedPleaded Not guilty. 11 FindingFound not guilty. 12 ResultIn the result, the accused Nos.1 to 8 are found not guilty for the offence under Sections 3 and 4 of AP Gaming Act and accordingly, they are acquitted under Section 255 (1) Cr.P.C. The bail

II AJFCM, ELURU 2 CC No. 54 of 2022

Dated 16.08.2023

bonds of accused Nos.1 to 8 shall remain in force for a period of six (6) months as contemplated under Section 437(A) Cr.P.C. The accused Nos.1 to 8 had not undergone any remand period. The material objects i.e., M.O.1 Cash of Rs.11,600/- shall be confiscated to State, after expiry of appeal time; MO2 i.e., 5 cell phones and MO3 i.e., 2 motorcycles are ordered to be returned to its owners, after expiry of appeal time. MO4 i.e., 52 playing cards, which is non-valuable property, is ordered to destroyed, after expiry of appeal time. 13 Explanation for delay- // SD/- S.VASU DEV //

II ADDITIONAL JUNIOR CIVIL JUDGE-CUM-

II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

ELURU.

Copy submitted to :

The Hon'ble I Additional District & Sessions Judge, W.G., Eluru through CD.

// TRUE COPY //

II AJFCM, ELURU.

II AJFCM, ELURU 3 CC No. 54 of 2022

Dated 16.08.2023

IN THE COURT OF II ADDITIONAL JUNIOR CIVIL JUDGE-CUM-

II ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS, ELURU.

Present: SRI S.VASU DEV

II Additional Junior Civil Judge-cum- II Additional Judicial Magistrate of First Class, Eluru Wednesday, the 16th day of August, 2023

CALENDAR CASE NO.54 of 2022

FORM – A

Complainant State : Sub-Inspector of Police, II Town P.S.,

Eluru.

(Cr.No.892/2021 of Eluru II Town P.S.). Represented by Learned Senior Assistant Public Prosecutor Accused1. Yegireddy Sivaiah, S/o Venkata Rao, aged 45 Years, C/K.Velama, Opposite to Boorada Gowri Mandir, Kothapet, Eluru.

2. Macha Srinivasarao, S/o Sambaiah, Aged 50 Years, C/K.Velama, Opposite to Boorada Gowri Mandir, Kothapet, Eluru.

3. Vennelaganti Srinivasrao, S/o Gopi @ Gopinadh, C/Devangula, Hotel Worker, Vasa Vari Street, R.R.Pet, Eluru.

4. Jerripothula Appala Naidu, S/o Simhadri, Aged 33 Years, C/T.Kapu, Kandrikagudem, Eluru.

5. Gedela Srinivasarao, S/o Veera Raghavulu, Aged 54 Years, C/K.Velama, AKG Center, Kothapet, Eluru.

6. Balina Ramu, S/o Nageswara Rao, Aged 34 Years, C/Gowda, Jogannapalem, Denduluru Mandal.

7. Adidela Dileep, S/o Yesu Rakshana Raju, Aged 36 Years, C/SC-Mala, Dondapadu, Eluru.

8. Didde Kishore Mandela, S/o late Sampath, Aged 32 Years, C/SC-Madiga, Titus Nagar, Eluru.

Represented by Sri V. Amar Srinivas, Advocate for Accused.

FORM – B

Date of offence18.10.2021

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Dated 16.08.2023

Date of FIR18.10.2021 Date of Charge sheet11.01.2022 Date of Examination 17.04.2023 Date of Commencement of evidence 09.05.2023 Date of which Judgment is reserved08.08.2023 Date of the Judgment 16.08.2023 Date of the Sentencing Order, if any-

ACCUSED DETAILS :

RankName ofDateDate ofOffencesWhetherSentePeriod of of theaccusedofReleasecharged withAcquittednceDetention Undergone during accusarreston Bailorimpos Trial for purpose of edconvicteded section 428 of Cr.P.C.

1.Yegireddy-41-A3 & 4 of APAcquitted- - SivaiahCr.P.C.Gaming Act Notice

2.Macha -41-A3 & 4 of APAcquitted- - SrinivasaraoCr.P.C.Gaming Act Notice

3.Vennelagant-41-A3 & 4 of APAcquitted- - i Cr.P.C.Gaming Act SrinivasaraoNotice

4.Jerripothula -41-A3 & 4 of APAcquitted- - Appala Cr.P.C.Gaming Act NaiduNotice

5.Gedela -41-A3 & 4 of APAcquitted- - SrinivasaraoCr.P.C.Gaming Act Notice

6.Balina Ramu-41-A3 & 4 of APAcquitted- - Cr.P.C.Gaming Act Notice

7.Adidela -41-A3 & 4 of APAcquitted- - DileepCr.P.C.Gaming Act Notice

8.Didde -41-A3 & 4 of APAcquitted- - KishoreCr.P.C.Gaming Act Notice

This case was placed before me for final hearing on 08.08.2023 in the presence of learned Senior Assistant Public Prosecutor for the

Complainant and of Sri V.Amar Srinivas, Advocate for Accused and upon perusing the record and upon hearing both sides and the matter having stood upon for consideration till this day, this court delivered the following:

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Dated 16.08.2023

J U D G M E N T

The Sub-Inspector of Police, II Town P.S., Eluru has filed charge sheet in Crime No.892/2021 against the accused Nos.1 to 8 for the offence under sections 3 and 4 of AP Gaming Act.

02. The brief facts of the prosecution as per charge sheet are as follows:

On 18.10.2021 at about 5.30 PM on credible information about gambling by betting money with Kotha Banthi with playing cards at the house of Accused No.1 vide Electrical SC.No.1511022110005358, Boorada

Gowri Mandir Opposite Road, Kothapet, Eluru ground house located behind

K.S.Public School Road, Kothapet, Eluru. LW11 obtained search warrant from SDPO, Eluru and conducted raids along with two mediators i.e., LW9 and LW10 along with his staff. By that time LW10, mediators and staff reached the aforesaid place, found 8 persons, playing gambling with playing cards Kotha Banthi by betting money, and on seeing them, they tried to flee away from that place. LW10 arrested them with the assistance of his staff and caught hold them and questioned them about their addresses. The Accused No.1 to 8 revealed their names and identities and further confessed that they were playing Kothabanthi by betting. The said premises belong to Accused No.1. LW10 arrested the accused No.1 to 8 under the cover of mediator report, seized cash of Rs.11,600/-, 5 mobile phones, 2 motorcycles and 52 playing cards from the possession of

Accused No.1 to 8, in the presence Lws.9 & 10 and recorded the confession of Accused. LW10 returned to police station, registered a case in Crime No.892/2021 under sections 3 and 4 of AP Gaming Act and submitted the FIR to all concerned officers and took up investigation.

During course of investigation, LW10 visited the scene of offence, prepared rough sketch of the scene, secured LW1 to LW8, examined them and

II AJFCM, ELURU 6 CC No. 54 of 2022

Dated 16.08.2023

recorded their statements. LW10 served section 41-A Cr.P.C. notice to accused No.1 to 8 and released them. After completion of investigation, he filed charge sheet against Accused No.1 to 8.

03. This Court has taken cognizance for the offence punishable under Sections 3 and 4 of AP Gaming Act, against the accused Nos.1 to 8.

04. On appearance of accused No.1 to 8 copies were furnished to them as contemplated under Section 207 of Cr.P.C.

05. The Accused No.1 to 8 were examined Under Section 251 of

Cr.P.C. The accusation was read over and explained to the accused in vernacular language and the accused pleaded not guilty of the offence punishable Under Sections 3 and 4 of AP Gaming Act and claimed to make their defence.

06. To prove the guilt of the accused No.1 to 8, the prosecution examined PW1 to PW7 and got marked Exhibits P1 to P9 and material

Objects MO1 to MO4 were exhibited.

07. After closure of evidence on the side of the prosecution, accused

No. 1 to 8 were examined under Section 313 Cr.P.C., for the incriminating evidence found in the hands of the prosecution witnesses, the accused No.

1 to 8 denied the same and reported no defence evidence on their behalf.

08. Heard the arguments of learned APP and the defence counsel.

09. Now the point for consideration is: Whether the Prosecution

had proved the guilt of the accused Nos.1 to 8 for the offence

punishable under Sections 3 and 4 of AP Gaming Act, beyond

reasonable doubt?

10. POINT:

[a] It is the case of prosecution that, accused No.1 organized playing cards i.e., kothabanthi with the Accused No.2 to 8 at the house bearing

Electricity SC.No.1511022110005358, Boorada Gowri Mandi Opposite

II AJFCM, ELURU 7 CC No. 54 of 2022

Dated 16.08.2023

Road, Kothapet, Eluru and accused No.1 to 8 while are playing Kotha

Banthi by betting money, the police caught them and seized MO1 to MO4 from their possession and thereby they committed an offence under sections 3 and 4 of AP Gaming Act. It is the defence of accused that, they never committed any offence and they were falsely implicated in this case and prayed to acquit them.

[b] To prove the commission of offence under sections 3 and 4 of AP

Gaming Act, the prosecution had examined PW1 to PW7 and Exhibits P1 to

P9 and Material Objects i.e., MO1 to MO4 were exhibited. PW1 is the ASI of

Police; PW2 to PW5 are the independent witnesses; PW6 is the Mediator and PW7 is the Investigating officer. Exhibits P1 to P4 are the relevant portions marked in Section 161 Cr.P.C. statements of PW2 to PW5. Exhibit

P5 is the Signature of PW6 on mediator report dated: 18.10.2021. Exhibit

P6 is the Search proceedings of SDPO, Eluru dated: 18.10.2021. Exhibit P7 is the Mediator report dated: 18.10.2021. Exhibit P8 is the FIR and Exhibit

P9 is the Rough Sketch of scene of offence. MO1 is Cash of Rs.11,600/-,

MO2 are five Cellphones, MO3 are two Motorcycles and MO4 is 52 Playing cards.

[c] Regarding the commission of offence under sections 3 and 4 of

AP Gaming Act, the evidences of PW1, PW6 and PW7 are relevant. PW1 deposed that, on 18.10.2021 he accompanied with LW11 to Kothapet,

Eluru in one house and they noticed 8 persons were playing cards and

LW.11 seized cash of Rs.11,600/- and 52 Playing cards and one VRO had prepared mediator report and LW11 arrested the said 8 persons and brought them to police station and registered the case in Crime

No.892/2021.

[d] PW6 deposed that, on 18.10.2021 at 4.30 PM while he was present in his office, SI of Police, Eluru II Town Police station asked him to

II AJFCM, ELURU 8 CC No. 54 of 2022

Dated 16.08.2023

act as mediator in the above case; then he went to police station and

LW10 came to police station and they accompanied the police and went to one house belongs to Vegireddi Sivayya i.e. Accused No.1 situated at

Chodidibba, Kothapet, Eluru and found 8 persons were playing cards and police arrested them and the police seized cash of Rs.11,600/-, 5 cellphones and two motorcycles from the said persons under cover of mediator report typed by the police duly attested by him, LW10 and SI of police.

[e] PW7 deposed that, on 18.10.2021 at 5.30 PM, he received credible information about gambling was going on in the house of one

Vegireddi Sivayya situated opposite road of Gowri temple, Kothapet, Eluru and he received proceedings from DSPO, Eluru and proceeded along with mediators and his staff to said house and noticed 8 persons were playing kothabanthi and he apprehended them and questioned and enquired them about details and they revealed their names as Accused were confessed about playing kotha banthi game and he seized cash of Rs.11,600-/, 5 cellphones and two motorcycles under cover of mediator report and he went to station along with seized property and accused; and basing on the mediator report, he registered a case in Cr.No.892/2021 and that he visited the scene of offence and examined LW6 to LW8 and recorded their statements and also prepared rough sketch of the scene and after completion of investigation, he filed charge sheet against them.

[f] PW6 deposed in his cross-examination that, there is no mention the door number of accused No.1 in mediator report and police had not seized any document to show that the said premises belongs to Accused

No.1. He further stated that, the denomination of MO1 was not mentioned in mediator report. He denied the suggestion that the accused never played cards by betting money and the police obtained his signature on

II AJFCM, ELURU 9 CC No. 54 of 2022

Dated 16.08.2023

mediator report at their police station and he never acted as mediator and he deposing false.

[g] PW7 deposed in his cross-examination that, on his dictation, one of the mediator had typed the mediators report in their laptop and there are no signatures of PW6 and LW10 for pages No.1 to 4 of Mediator report; he had not taken any endorsement of Accused No.1 on search warrant; he had take electricity bill relating to the house of Accused No.1; there is no mention about the seizure of 52 playing cards in mediators report and there is no denomination of MO1. He denied the suggestion that he never went to scene of offence and never prepared rough sketch of the scene and registered the said case against the accused for statistical purpose only and the accused never committed any offence and he was deposing false.

[h] The Learned APP argued that, PW7 is the Investigating officer, he secured PW6 and LW10 at police station and along with his staff, he conducted raids at the house of Accused No.1 and found accused No.2 to 8 were playing cards by betting money and they committed an offence under sections 3 and 4 of A.P Gaming Act.

[i] On going through Section 3 of the A.P. Gaming Act, it is clear that whoever, opens, operates or uses any common gaming house can be punished for a period of two years. Therefore, in order to fasten the criminal liability, the prosecution is expected to prove that the accused has used common gaming house by playing cards. As long as there is no evidence to show that the house of accused No.1 is being used on payment of money, the said house cannot be termed common gaming house.

[j] As per the evidence of PW6 and PW7 coupled with Exhibit P7 – mediator report, there is no seizure of playing cards, which is prime

II AJFCM, ELURU 10 CC No. 54 of 2022

Dated 16.08.2023

evidence to establish the alleged offence against the accused. The investigating agency also failed to collect evidence that the alleged premises belongs to Accused No.1. The investigating agency also failed to establish that, the house of accused No.1 is being used on payment of money, and as such, the house of accused No.1 cannot be termed as coming gaming house. Even, PW6 failed to identify the accused as persons who were alleged to have been present at the scene of offence. Further, the prosecution had not placed any material to show that MO2 and MO3 are used for the purpose of betting. There is no credibility attached to the

Exhibit P7 i.e., mediator report and it is not safe to rely on the testimonies of PW1, PW6 and PW7.

[k] Accused No.1 is charged for the offence under section 4 as well as Section 3 of the A.P. Gaming Act. In respect of Section 4 of the A.P.

Gaming Act, apart from accused No.1, rest of the accused are charged with the said section. Therefore, it is to be examined whether facts narrated by the prosecution would amount to committing of an offence under section 4 of the Act. In the case on hand, according to the prosecution, the accused were present for the purpose of gaming in a common gaming house.

Unless the place of the offence is specified to be a common gaming house,

Section 4 of the A.P. Gaming Act will not attract. Considering the discussion made above, the place of arrest of the accused is the house of accused

No.1, cannot be termed as a common gaming house. Thereby, Section 3 of the Act is not applicable to accused No.1 as discussed supra. Similarly, in respect of other accused also, the place where they were alleged to have been playing cards is not a common gaming house, hence Section 4 of the

A.P. Gaming Act is not applicable to them. Hence, from the above discussion this court holds that, the prosecution failed to prove the guilt of the accused for the offence under sections 3 and 4 of AP Gaming Act,

II AJFCM, ELURU 11 CC No. 54 of 2022

Dated 16.08.2023

beyond reasonable doubt. Accordingly, this point is answered in favour of accused.

11. In the result, the accused Nos.1 to 8 are found not guilty for the offence under Sections 3 and 4 of AP Gaming Act and accordingly, they are acquitted under Section 255 (1) Cr.P.C. The bail bonds of accused Nos.1 to 8 shall remain in force for a period of six (6) months as contemplated under Section 437(A) Cr.P.C. The accused Nos.1 to 8 had not undergone any remand period. The material objects i.e., M.O.1 Cash of Rs.11,600/- shall be confiscated to State, after expiry of appeal time; MO2 i.e., 5 cell phones and MO3 i.e., 2 motorcycles are ordered to be returned to its owners, after expiry of appeal time. MO4 i.e., 52 playing cards, which is non-valuable property, is ordered to destroyed, after expiry of appeal time.

Typed to my dictation by the Stenographer, corrected and pronounced by me in open court, this the 16th day of August, 2023.

// SD/- S.VASU DEV //

II ADDITIONAL JUNIOR CIVIL JUDGE-CUM-

II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

ELURU.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution:-

RANK NAME NATURE OF EVIDENCE

(Eye witness, Police Witness, Expert witness, Medical witness, Panch witness, other witness) PW.1G.Kishore KumarASI of Police PW.2G.Soma BrahmmamIndependent witness PW.3M.SujathaIndependent witness PW.4S.Vijay KumarIndependent witness PW.5A.MadhusudhanaraoIndependent witness PW.6K.RajaraoMediator PW.7N.R.Kishore BabuInvestigating officer

II AJFCM, ELURU 12 CC No. 54 of 2022

Dated 16.08.2023

For Defence Evidence:-

RANK NAME NATURE OF EVIDENCE

(Eye witness, Police Witness, Expert witness, Medical witness, Panch witness, other witness) NIL

DOCUMENTS MARKED

For Prosecution :-

Exhibit P1: Relevant portion marked in Section 161 Cr.P.C. statement of PW2.

Exhibit P2 : Relevant portion marked in Section 161 Cr.P.C. statement of PW.3.

Exhibit P3 : Relevant portion marked in Section 161 Cr.P.C. statement of PW.4.

Exhibit P4 : Relevant portion marked in Section 161 Cr.P.C. statement of PW.5.

Exhibit P5 : Signature of PW.6 on mediator report dated: 18.10.2021.

Exhibit P6 : Search proceedings of SDPO, Eluru dated 18.10.2021.

Exhibit P7 : Mediator report dated 18.10.2021.

Exhibit P8 : FIR.

Exhibit P9 : Rough Sketch of scene of offence

MATERIAL OBJECTS

MO1 : Cash of Rs.11,600/-.

MO2 : Five Cellphones.

MO3 : Two Motorcycles.

MO.4 : 52 Playing cards.

For Defence :- - Nil -. // SD/- S.VASU DEV //

II ADDITIONAL JUNIOR CIVIL JUDGE-CUM-

II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

ELURU.

// TRUE COPY //

II AJFCM, ELURU.

II AJCJ, ELURU 1 O.S.No.270/2020

Dated 12.01.2024

IN THE COURT OF II ADDITIONAL JUNIOR CIVIL JUDGE-CUM-

II ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS, ELURU.

Present: SRI S.VASU DEV,

II Additional Junior Civil Judge-cum- II Additional Judicial Magistrate of First Class, Eluru

Friday, the 12 th day of January, 2024

ORIGINAL SUIT NO.270/2020

Vallabhaneni Prameela, W/o Paramdhama Chowdary, Hindu, Female, Aged 65 Years, R/o H.No.67/B, Mukku Timmana Street, Ashok Nagar, Eluru. … Plaintiff.

Vs

The Legal Heirs of Deceased Chevveti Chitti Babu:-

1.Chevveti Rani, W/o Late Chitti Babu, Hindu, Female, Aged 50 years, R/o H.No.22-6-16, Near Subbamma Devi High School, 35th Division, R.R.Pet, Eluru.

2.Chevveti Vijay, S/o Late Chitti Babu, Hindu, Male, Aged 27 Years, R/o H.No.22-6-16, Near Subbamma Devi High School, 35th Division, R.R.Pet, Eluru.

3.Chevveti Ravali, D/o Late Chitti Babu, Hindu, Female, Aged 22 years, R/o H.No.22-6-16, Near Subbamma Devi High School, 35th Division, R.R.Pet, Eluru. … Defendants No.1 to 3.

This suit is coming on before me for final hearing on 23.06.2023 in the presence of Sri V.Amar Srinivas, Advocate for the Plaintiff and the Sri P.Dinakar, Advocate for the defendants No.1 and 3; the defendant No.2 was set exparte; and after hearing both parties; this

Court delivered the following:

: J U D G M E N T :

This is a suit filed by the plaintiff against the defendants No.1 to 3 for recovery of Rs.3,44,000/- being the principal and interest due under promissory note dated: 14.08.2017 executed by the deceased

Chevveti Chitti Babu in favour of plaintiff for Rs.2,00,000/-, agreeing to repay the same with interest at 24% p.a, for subsequent interest and for costs, in the interests of justice.

02. The brief averments of the plaint in nut-shell are as follows:

The deceased Chevveti Chitti Babu borrowed a sum of

Rs.2,00,000/- from the plaintiff on 14.08.2017 for his family necessities

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Dated 12.01.2024

and to discharge sundry debts and he executed demand promissory note in favour of plaintiff agreeing to repay the same together with interest @ 24% per annum either to the plaintiff or to her order on demand. In spite of repeated demands made by the plaintiff, the deceased Chevveti Chitti Babu failed to discharge the same and postponing the same on some pretext or other. The defendant No.1 is the wife and the defendants NO.2 and 3 are the children of deceased

Chevveti Chitti Babu. After demise of deceased Chevveti Chitti Babu, the plaintiff also demnded the defendants No.1 to 3 to discharge the same due under suit promissory note. The defendants No.1 to 3 also promised to pay the suit amount and later on postponing the same on some pretext or other. The plaintiff got vexed with the attitude of defendants and ultimately she got issued legal notice dated 05.03.2020 through her counsel. The defendant No.1 received the said notice and the defendants No.2 and 3 got managed the postal authorities and returned the same. The defendant No.1 got issued issued reply notice dated 11.03.2020 with false averments. Hence the plaintiff is constrained to file the suit. Hence the suit.

03. The defendant No.2 was set exparte on 28.11.2022. The defendant No.1 filed his written statement denying the allegations made in the plaint and the defendant No.3 filed her adoption memo by adopting the written statement of defendant No.1 and he further contended that, the defendant No.2 is not the son of deceased

Chevveti Chitti Babu. Her husband never borrowed any amount as alleged by the plaintiff and he has no necessity to borrow amount of

Rs.2 Lakhs from the plaintiff. The defendant No.1 further submitted that during the life time of late Paramdhama Chowdary and her husband, the husband of plaintiff used to lend money through her husband to the needy persons and the husband of plaintiff for his

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Dated 12.01.2024

safety and precautionary security and obtained three unfilled blank demand promissory notes signed by her husband. The husband of plaintiff directed the plaintiff to handover the said three unfilled blank demand promissory notes bearing his signature of deceased Chevveti

Chitti Babu, but the plaintiff failed to handover the same. The plaintiff was in possession of said pronotes and got filled one of the empty signed promissory note after the demise of her husband and filed the present suit only to get unlawful gain. The suit promissory note is fabricated and there are no merits in the suit and prayed to dismiss the suit with costs.

04. Basing on the above pleadings, the following issues are settled for trial:

[1] Whether the deceased Chevveti Chitti Babu borrowed

an amount of Rs.2,00,000/- from the plaintiff on

14.08.2017 and executed promissory note in his favour?

[2] Whether the suit promissory note dated 14.08.2017 is

binding on the defendants?

[3] Whether the defendants No.1 to 3 are liable to pay

the suit promissory note amount there and out of estate

of the deceased Chevveti Chitti Babu?

[4] To what relief?

05. To prove the case of the plaintiff, the plaintiff herself was examined as PW.1 and got marked Exhibits A1 to A5. The attestor of

Exhibit A1 promissory note was examined as PW.2. The defendant

No.1 herself was examined as DW.1. the Defendant No.3 was examined as DW.3. No document is marked on behalf of the defendants.

06.Heard the counsel for plaintiff. Perused the written arguments filed by the counsel for defendants No.1 to 3.

07. ISSUES No.1 and 2 :-

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Dated 12.01.2024

[1] Whether the deceased Chevveti Chitti Babu borrowed

an amount of Rs.2,00,000/- from the plaintiff on

14.08.2017 and executed promissory note in his favour?

[2] Whether the suit promissory note dated 14.08.2017 is

binding on the defendants?

[a]It is the case of the plaintiff that, the deceased Chevveti

Chitti Babu borrowed an amount of Rs.2,00,000/- from plaintiff on 14.08.2017 and executed Exhibit A1 promissory note in her favour agreeing to repay the same with interest @ 24% per annum either to her her or her order on demand. Inspite of repeated demands made by the plaintiff, the deceased Chevveti Chitti Babu failed to clear the said debt during his life time. The deceased Chevveti Chitti Babu died on 12.01.2018 leaving behind the defendants No.1 to 3 who are his sole legal heirs. After demise of Chevveti Chitti Babu, the plaintiff demanded the defendants No.1 to 3 by way of registered legal notice.

The defendants after receipt of said legal notice failed to repay the same. Hence the plaintiff is constrained to file the present suit for recovery of amount from the estate of deceased Chevveti Chitti Babu which is lying in the hands of defendants No.1 to 3. To prove the case of the plaintiff, the plaintiff herself was examined as PW.1 and got marked Exhibits A1 to A5. The attestor of Ex.A1 promissory note was examined as PW.2. The evidence of PW.1 and PW.2 was consistent in all aspects and their evidence was not at all discredited in any manner during cross examination and prayed to decree the suit with costs.

[c] The learned counsel for defendants No.1 to 3 argued and submitted written arguments contending that, the defendant No.2 is not the legal heir of deceased Chevveti Chitti Babu. He further argued that the husband of defendant No.1 never borrowed any amount much less Rs.2 Lakhs from the plaintiff on 14.08.2017 and he has no necessity to borrow the said amount. In fact the husband of plaintiff by

II AJCJ, ELURU 5 O.S.No.270/2020

Dated 12.01.2024

name Paramdhama Chowdary used to lend the amounts to others who are needy through her husband Chevveti Chitti Babu. The husband of plaintiff towards security, got obtained the signatures of deceased

Chevveti Chitti Babu on three blank signed promissory notes. The said

Paramdhama Chowdary during his life time informed the plaintiff to return the said blank signed promissory notes belonging to the deceased Chevveti Chitti Babu. But she did not return the same. After demise of deceased Chevveti Chitti Babu, the plaintiff got fabricated one of the promissory note in her name and filed the promissory note.

The said pronote is devoid of cash consideration. To disprove the case of the plaintiff, the defendant No.1 was examined as DW.1 and defendant No.3 was examined as DW.2. The evidence of DW.1 and

DW.2 was clear and consistent in replica of their written statement contentions. The plaintiff failed to discredit their evidence during cross examination and prayed to dismiss the suit with costs.

[d]In order to establish the contents of plaintiff, she filed her chief examination affidavit by reiterating the contents of the plaint and she deposed in her cross examination that Chevveti Chitti Babu is the borrower of Ex.A1 promissory note and he is no more; one Mahesh and

Varala Rangarao are the attestors of Ex.A1 promissory note; one Raju is the scribe of said document; she filed the present suit against wife, son and daughter of the deceased Chitti Babu; her husband was having acquaintance with the deceased Chitti Babu; the defendants had not affixed their signatures in Ex.A1 promissory note as attestors , even though they are having knowledge that the deceased borrowed amount from her; she gave amount to the deceased under Ex.A1 promissory note. She denied the suggestion that the deceased has no necessity to borrow amount from her and her husband lending amount to the deceased and thus the defendants are no way related to the

II AJCJ, ELURU 6 O.S.No.270/2020

Dated 12.01.2024

deceased, as such they had not received any reply notice and she had sent copy of unfilled promissory notes stands in the name of deceased and filed this present suit to get wrongful gain and the present suit is not maintainable and liable to be dismissed. She further denied the suggestion that the defendant No.2 is not the son of deceased

Chevveti Chitti Babu.

[e]The plaintiff examined first attestor of Ex.A1 promissory note as PW.2. He filed his chief examination affidavit, he supported the evidence of PW.1. PW.2 deposed in his cross examination that one Raju executed Ex.A1 promissory note who filled the contents of said document and thereafter the borrower had affixed his signautre; he know Chitti Babu and his sur name is Chevveti; he do not know whether the family members of the deceased are having knowledge about borrowing amount from PW.1 by the deceased; it is true PW.1 lent amount to the deceased Chevveti Chitti Babu, but she did not mend amount to the defendants; he do not know whether the husband of plaintiff by name Vallabhaneni Paramdhama Chowdary used to do money lending business or not; he do not know whether the husband of plaintiff used to lend amount to known persons for lesser interest; it is true the plaintiff had not filed the present suit during the life time of deceased Chevveti Chitti Babu. He denied the suggestion that the plaintiff never lend amount to the deceased Chevveti Chitti Babu in his presence and the deceased never affixed his signature in his presence and no transaction took place in his presence and he deposing false evidence.

[f]To discredit the evidence of Plaintiff, the defendant No.1 herself was examined as DW1 and she filed her chief examination affidavit reiterating the contents of her written statement. She deposed in her cross examination that, it is true she received Ex.A2

II AJCJ, ELURU 7 O.S.No.270/2020

Dated 12.01.2024

legal notice; it is true through her counsel they issued reply notice; it is true in the said reply notice he never denied that the defendants No.2 and 3 are not her children; it is true she had not mentioned in her written statement her husband borrowed amounts from others and also its dates and also the names of creditors; she had not filed documents along with her written statement as pleaded by her in her chief examination affidavit at Para No.9; she do not know the name of clerk with whom the plaintiff sent photo copy of promissory note to her husband; it is true the defendant No.3 was appointed on compassionate grounds in place of her deceased husband; it is true that after demise of her husband, they received death benefits of her deceased husband. She denied the suggestion that herself and her children having knowledge about the borrowal of amount by her husband from PW.1 and she deposing false evidence.

[g]The defendant No.3 was examined as DW.2 and she filed her chief examination affidavit in support of their contentions. She deposed during cross examination that the deceased Chevveti Chitti babu is her father; it is true that the defendant No.1 is her mother; her father used to draw Rs.18,000/- during his life time as salary by working as attender in a bank; it is true PW.1 got issued legal notice and she received the same and she got issued reply notice; she had not mentioned in her reply notice that the husband of PW.1 had taken empty signed promissory notes from her father; they issued legal notice prior to issuance of Ex.A2 legal notice to the husband of PW.1 demanding him to return the blank signed promissory notes belonging to her father; he had not filed the said legal notice before the Court; it is true that she got job on compassionate grounds due to demise of her father in service. She denied the suggestion that during life time and after demise of her father, PW.1 came to her house and demanded

II AJCJ, ELURU 8 O.S.No.270/2020

Dated 12.01.2024

them to discharge the amount due under Ex.A1 promissory note and they are having knowledge about the said transaction and she deposing false evidence.

[h]On clean perusal of evidence of PW.1 and PW.2 clearly shows that the deceased Chevveti Chitti Babu borrowed amount from

PW.1 and executed Ex.A1 promissory note in favour of PW.1 and that part of evidence was not at all discredited by the defendants in any manner. PW.1 and PW.2 categorically denied that the husband of PW.1 by name Paramdhama Chowdary taken three blank signed promissory notes belonging to deceased Chevveti Chitti Babu. As seen from the pleadings of written statement, it is the specific case of defendants that the Vallabhaneni Paramdhama Chowdary used to lend amount to others through deceased Chevveti Chitti Babu for lesser interest who are in needy and as a security the said Vallabhaneni Paramdhama

Chowdary had taken three blank signed promissory notes belonging to deceased Chevveti Chitti Babu towards security. When coming to cross examination of PW.1, the counsel for defendants No.1 and 3 suggested to PW.1 that the deceased Chevveti Chitti Babu borrowed amount from the husband of PW.1. The pleadings as well as evidence of defendants is totally contrary and they had taken two different versions.

[I] Further the defendants had taken a plea in their written statement that the defendant No.2 is not the son of deceased Chevveti

Chitti Babu. On this aspect the evidence of DW.1 is relevant. As seen from the cross examination of Defendant No.1, she admitted that, she got issued Ex.A5 reply notice and she never denied the relationship of defendant No.2 with the deceased Chevveti Chitti Babu. Even to disprove the said aspect, the defendants had not placed any evidence to show that the defendant No.2 is not the son of deceased Chevveti

Chitti Babu. The evidence of PW.1 and PW.2 is very clear that the

II AJCJ, ELURU 9 O.S.No.270/2020

Dated 12.01.2024

deceased Chevveti Chitti Babu after receiving cash consideration under Ex.A1 promissory note got affixed his signature. So the suit pronote is supported by cash consideration and it was executed by the deceased after receiving consideration amount. Now the onus shifts on the defendants to prove that the suit pronote is fabricated and the said document was given to the husband of PW.1 towards security. Toi disprove the case of plaintiff, there is sufficient evidence placed by the defendants to prove their version. The defendants had taken inconsistent and contrary pleas when coming to cross examination of

PW.1 and PW.2. Such contrary and inconsistent pleas cannot be taken.

Since the defendants had not denied the signature of deceased

Chevveti Chitti Babu in Ex.A1 promissory note and to substantiate their plea that the suit promissory note was fabricated, no evidence has been placed by the defendants. Further the defendants also admitted in their cross examination that they had not issued or demanded the plaintiff or her husband during the life time of deceased Chevveti Chitti

Babu demanding them to return the alleged blank signed promissory notes belonging to the deceased Chevveti Chitti Babu. This itself shows that the defendants had taken a vague plea.

Therefore in the above discussion, this Court holds and concludes that the promissory note dated 14.08.2017 for Rs.2,00,000/- was executed by the deceased Chevveti Chitti Babu in favour of PW.1 and the said pronote is binding on the defendants No.1 to 3.

Accordingly Issues No.1 and 2 are answered in favour of plaintiff.

08. ISSUE NO.3: Whether the defendants No.1 to 3 are

liable to pay the suit promissory note amount there and out of

estate of the deceased Chevveti Chitti Babu?

Since, the Issue No.1 and 2 are answered in favour of plaintiff, it can be said that the defendants No.1 to 3 are liable to pay the suit

II AJCJ, ELURU 10 O.S.No.270/2020

Dated 12.01.2024

promissory note amount from the estate of deceased Chevveti Chitti

Babu to the plaintiff.. Accordingly, this Issue is answered in favour of

Plaintiff.

09. Issue No.4: To what relief?

In the result, the suit is decreed with costs in favour of plaintiff and against the estate of the deceased Chevveti Chitti Babu, lying in the hands of the defendants 1 to 3, for sum of Rs.3,44,000/- with subsequent interest at the rate of 12% per annum from the date of filing of the suit till the date of decree and thereafter, with future interest at 6% per annum from the date of decree till the date of realization on the principal amount of Rs.2,00,000/-.

Typed to my dictation by the Stenographer Grade-III, corrected and

pronounced by me in open court, on this the 12 th day of January, 2024.

// S. Vasu Dev//

II Additional Junior Civil Judge – cum – II Additional Judicial Magistrate of I Class, Eluru.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED ON BEHALF OF THE PLAINTIFF

PW1: V.Prameela.

PW.2: K.Durga Mahesh.

WITNESSES EXAMINED ON BEHALF OF DEFENDANT:

DW.1: Ch. Rani.

DW.2: Ch. Ravali.

EXHIBITS MARKED ON BEHALF OF THE PLAINTIFF

Exhibit A1 : Suit promissory note dated: 14.08.2017 executed by the deceased Chevveti Chitti Babu in favour of plaintiff for

Rs.2,00,000/-.

Exhibit A2 : Office copy of legal notice dated 05.03.2020 got issued by the plaintiff to the defendants No.1 to 3 along with postal receipts 3 in number.

Exhibit A3 : Served Postal acknowledgment cards stands on the name of defendant No.1.

II AJCJ, ELURU 11 O.S.No.270/2020

Dated 12.01.2024

Exhibit A4 : Returned postal cover stands on the name of defendants

No.2 and 3.

Exhibit A5 : Reply notice dated 11.03.2020 got issued by the defendant No.1 through his counsel.

EXHIBITS MARKED ON BEHALF OF THE DEFENDANT:

Nil.

// S. Vasu Dev//

II AJCJ, ELURU.

SJFCM (Excise) ELURU 1 OF 12 CC No. 195 of 2020

CALENDAR AND JUDGMENT

IN THE COURT OF SPECIAL JUDICIAL MAGISTRATE OF I CLASS

(EXCISE)-CUM-IV ADDITIONAL JUNIOR CIVIL JUDGE, ELURU.

CALENDAR CASE NO.195/2020

1Date of Offence 01.03.2018 2Date of Complaint01.03.2018 3Date of Apprehension of A5 arrested on 02.03.2018

Accused Served Section 41-A Cr.P.C. Notice to A2 to A4,

A6 4Date of Commencement of 28.02.2023

Trial 5Date of Closure of Trial 18.04.2023 6Date of Judgment 11.05.2023 7ComplainantSub-Inspector of Police, Pedapadu PS (Crime No.61/2018 of Pedapadu PS) 8Name of the Accused 1) Pitta Ajay Babu, s/o Johnson, 29 years, SC

Mala, Driver of Mahindra Jayo van bearing

No.AP37TG 0980, r/o Naidugudem village,

Pedapadu Mandal.

2) Kattula Kranti Kumar, s/o Yebelu, 27 years,

SC Mala, Driver, r/o Pedapadu village and

Mandal.

3) Kalipindi Satyanarayana @ Satyam, s/o

Subbaiah, 45 years, K.Velama, Fish tank owner, r/o Veerammakunta village, Pedapadu Mandal.

4) Chiluvuri Ramesh, s/o Satyanarayana, Owner of Mahindra Jayo van bearing No.AP37TG 0980,

K.Kannapuram village, Koyyalagudem Mandal.

5) Reddi Srinivas @ Srinu, s/o Krisha Murthy, 45 years, K.Velama, working as clerk, r/o

Veerammakunta village, Pedapadu Mandal.

6) Gundireddi Ramesh Gowri Nayudu, 32 years,

K.Velama, r/o Veerammakunta village, Pedapadu

SJFCM (Excise) ELURU 2 OF 12 CC No. 195 of 2020

Mandal.

Case against Accused No. 1 is split up and the same is numbered as C.C.No.344/2022) 9OffenceUnder Sections 269, 270 and 278 read with 34

IPC 10Plea of Accused Pleaded Not guilty.

11FindingAccused Nos.2 to 6 are found not guilty for the offence punishable under Sections 269, 270 and 278 read with 34 IPC.

12Result In the result, the accused Nos.2 to 6 are found not guilty for the offence under Sections 269, 270 and 278 read with 34 IPC and accordingly, they are acquitted under Section 255(1) Cr.P.C. The bail bonds of accused Nos.2 to 6 shall remain in force for a period of six(6) months as contemplated under Section 437(A)

Cr.P.C. The accused Nos.2 to 6 had not undergone any remand period. The unmarked case property i.e., Mahindra Jayo van bearing

No.AP-37-TG-0980, which was given to Accused

No.4 towards interim custody, shall be made absolute after expiry of appeal time.

13Explanation for delay------

Sd/- S.Vasu Dev

II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

FAC/SPECIAL JUDICIAL MAGISTRATE OF I

CLASS(EXCISE)- CUM-IV ADDITIONAL

JUNIOR CIVIL JUDGE, ELURU.

Copy submitted to :

The Hon'ble I Additional District & Sessions Judge, W.G., Eluru through CD.

SJFCM (Excise) ELURU 3 OF 12 CC No. 195 of 2020

IN THE COURT OF SPECIAL JUDICIAL MAGISTRATE OF FIRST

CLASS (EXICSE)-CUM-IV ADDITIONAL JUNIOR CIVIL JUDGE,

ELURU.

Present: SRI S.VASU DEV,

II Additional Junior Civil Judge-cum- II Additional Judicial Magistrate of First Class, Eluru FAC/Special Judicial Magistrate of I Class (Excise)-Cum- IV Addl. Junior Civil Judge, Eluru.

Thursday, the 11 th day of May, 2023

CALENDAR CASE NO.195 of 2020

FORM – A

Complainant State : Sub-Inspector of Police, Pedapadu P.S. (Cr.No.61/2018 of Pedapadu P.S.).

Represented by Learned Assistant Public Prosecutor Accused1) Pitta Ajay Babu, s/o Johnson, 29 years, SC Mala, Driver of Mahindra Jayo van bearing No.AP37TG 0980, r/o Naidugudem village, Pedapadu Mandal.

2) Kattula Kranti Kumar, s/o Yebelu, 27 years, SC Mala, Driver, r/o Pedapadu village and Mandal.

3) Kalipindi Satyanarayana @ Satyam, s/o Subbaiah, 45 years, K.Velama, Fish tank owner, r/o Veerammakunta village, Pedapadu Mandal.

4) Chiluvuri Ramesh, s/o Satyanarayana, Owner of Mahindra Jayo van bearing No.AP37TG 0980, K.Kannapuram village, Koyyalagudem Mandal.

5) Reddi Srinivas @ Srinu, s/o Krisha Murthy, 45 years, K.Velama, working as clerk, r/o Veerammakunta village, Pedapadu Mandal.

6) Gundireddi Ramesh Gowri Nayudu, 32 years, K.Velama, r/o Veerammakunta village, Pedapadu Mandal. Case against A1 separated and numbered

as C.C.No.344/2022)

Represented by Sri P. Naresh Kumar, Advocate for Accused No.2 to 6.

FORM – B

Date of offence01.03.2018

Date of FIR01.03.2018

Date of Charge sheet14.09.2020

SJFCM (Excise) ELURU 4 OF 12 CC No. 195 of 2020

Date of Examination 16.11.2022

Date of Commencement of evidence 28.02.2023

Date of which Judgment is reserved-

Date of the Judgment 11.05.2023 Date of the Sentencing Order, if any- ACCUSED DETAILS :

Ran Name of Date Date Offences Whether Sent Period of

k of accused of of charged Acquitte enc Detention

the arres Relea with d or e Undergone

accu t se on convicte imp during

sed Bail d ose Trial for

d purpose of section 428 of Cr.P.C.

1.Pitta Ajay 01.0341-A 269, 270, Split up - - Babu .2018Cr.P.C. 278 r/w and Notice34 IPCnumber ed as C.C.344 of 2022

2.Kattula 01.0341-A 269, 270, Acquitted- - Kranti Kumar.2018Cr.P.C. 278 r/w Notice34 IPC

3.Kalipindi 01.0341-A 269, 270, Acquitted- - Satyanaraya.2018Cr.P.C. 278 r/w na @ Notice34 IPC Satyam

4.Chiluvuri 01.0341-A 269, 270, Acquitted- - Ramesh .2018Cr.P.C. 278 r/w Notice34 IPC

5.Reddi 02.0302.03.269, 270, Acquitted- - Srinivas @ .20182018278 r/w Srinu34 IPC

6.Gundireddi 01.0341-A 269, 270, Acquitted- - Ramesh .2018Cr.P.C. 278 r/w Gowri Notice34 IPC Nayudu

This case was placed before me for final hearing on 08.05.2023 in the presence of learned Assistant Public Prosecutor for the Complainant and of Sri.P. Naresh Kumar, Advocate for Accused Nos.2 to 6 and upon perusing the record and upon hearing both sides and the matter having stood upon for consideration till this day, this court delivered the following:

SJFCM (Excise) ELURU 5 OF 12 CC No. 195 of 2020

J U D G M E N T

The Sub-Inspector of Police, Pedapadu Police Station has filed charge sheet against the accused Nos.1 to 6 in connection with Crime

No.61/2018 for the offences under Sections 269, 270, 271, 273, 278 read with 34 of IPC.

02. The brief averments of the charge sheet are as follows:

On 01.03.2018 at about 5.30 AM, LW8 received credible information, then he along with his staff and mediators proceeded to the leased fish tanks of Kalipindi Satyanarayana, Veerammakunta village, Pedapadu

Mandal and found Accused No.1 to 6 unloading the chicken waste from a vehicle bearing No.AP-37-TG-0980 and on seeing the police, they tried to escape. LW8 and his staff apprehended them and on enquiry, Accused

No.1 revealed his name and identity and confessed that as per the instructions of Accused No.4, himself and Accused No.2 used to collect chicken waste material in and around Hyderabad, got filled the chicken waste material in gunny bags to supply the same to the fish tanks owner of Accused No.3 and on the same day, while unloading the same, they were arrested. LW8 seized the crime vehicle and also chicken waste material under the cover of occurrence report. LW8 registered a case in

Crime No.61/2020 under sections 269, 270, 271, 273 and 278 read with 34 IPC and submitted copies of FIR to all concerned officers and took up further investigation. During course of investigation, LW8 visited the scene of offence, prepared rough sketch of the scene and also examined LW1 to

LW7 and recorded their statements. LW8 received destruction proceedings from LW5 and destroyed the chicken waste material in the presence of mediators and got prepared mediator report at the outskirts of

Veerammakunta village. He arrested Accused No.5 and produced him

SJFCM (Excise) ELURU 6 OF 12 CC No. 195 of 2020

before this Court for remand. He also served Section 41-A Cr.P.C. notices

on Accused No.1 to 4 and 6. LW9 verified the investigation done by LW8 and filed charge sheet against Accused No. 1 to 6 for the offence under

Sections 269, 270, 271, 273 and 278 read with 34 IPC.

03. This Court has taken cognizance for the offence punishable under Sections 269, 270, 271, 273 and 278 read with 34 IPC, against the accused Nos.1 to 6.

04. On 08.07.2022 the case against Accused No. 1 was split up and numbered as C.C.No.344/2022, as whereabouts of him are not known.

05. On appearance of Accused No.2 to 6, copies were furnished to them as contemplated under Section 207 of Cr.P.C.

06. The Accused Nos.2 to 6 were examined Under Section 251 of

Cr.P.C. The accusation was read over and explained to the accused in vernacular language and the accused pleaded not guilty of the offence punishable under sections 269, 270 and 278 read with 34 IPC and claimed to be tried.

07. To prove the guilt of the Accused Nos.2 to 6, the prosecution had examined PW1 to PW4 and got marked Exhibits P1 to P7.

08. After closure of evidence on the side of the prosecution, accused

Nos.2 to 6 were examined under Section 313 Cr.P.C., for the incriminating evidence found in the hands of the prosecution witnesses, the accused

Nos.2 to 6 denied the same and reported no defence evidence on their behalf.

09. Heard the arguments of learned APP and the defence counsel.

10. Now the point for consideration is: Whether the Prosecution

could able to establish the guilt of the accused Nos.2 to 6 for the

offences punishable under Sections 269, 270 and 278 read with 34

of IPC, beyond reasonable doubt?

SJFCM (Excise) ELURU 7 OF 12 CC No. 195 of 2020

11. POINT:

[a] It is the case of the prosecution that, accused used to transport chicken waste material from Hyderabad and mix the same in the fish tanks and due to their negligent act, they tried to spread infections of the disease which is dangerous to life and the said fishes are noxious to health, thereby they committed an offence under sections 269, 270 and 278 read with 34 IPC. It is the defence of accused that, they never committed any offence as alleged by the prosecution and prayed to acquit them.

[b] To prove the commission of offence under sections 269, 270, 278 read with 34 IPC, the prosecution had examined PW1 to PW4 and

Exhibits P1 to P7 were marked. PW1 is the mediator. PW2 and PW3 are the independent witnesses. PW4 is the investigating officer. Exhibit P1 is the occurrence report. Exhibit P2 is the mediator report. Exhibit P3 is the relevant portion marked in 161 Cr.P.C. statement of PW2. Exhibit P4 is the relevant portion marked in 161 Cr.P.C. statement of PW3. Exhibit P5 is the

FIR. Exhibit P6 is the Rough Sketch and Exhibit P7 is the destruction proceedings.

[c] Regarding the commission of offence under sections 269, 270, 278 read with 34 IPC, the evidences of PW1 and PW4 are relevant. PW1 deposed that, on 01.03.2018 at about 5.30 AM, on the telephone call of SI of police, Pedapadu P.S, he along with LW.2/VRA rushed to the Police

Station and from there the police led them near to the fish tanks of A3.

When they reached there one vehicle bearing No.AP37TG 0980 found near the above said fish tank. In their presence, SI of police enquired the driver of the said vehicle. In turn he disclosed his identity as P.Ajay Babu. He further disclosed that he had been working as halting driver under A2 and

SJFCM (Excise) ELURU 8 OF 12 CC No. 195 of 2020 on his direction he went to Hyderabad and collected the chicken waste material and taken to the fish tanks of A.3. By that time, they also noticed to A4 to A6 near the fish tanks of A3. Then the police seized the said vehicle and chicken waste material in their presence under a cover of

Ex.P1 occurrence report. On the same day at about 1.00 PM again the police called him to the Police Station and thereafter, the police taken them to the outskirts of Veerammakunta and buried chicken waste material by digging a bit the help of JCB under a cover of Ex.P2 mediator report.

[d] PW4 deposed that on 01.03.2018 at about 5.30 AM, on receipt of credible information with regard to transportation of chicken waste material at the outskirts of Veerammakunta Village, he rushed to the scene of offence along with his staff by securing PW.1 and LW.2. They noticed one stationed vehicle bearing No.AP37TG 0980 on the bund of fish tank of A3. At the time of unloading the chicken waste material, they caught hold the driver of the said vehicle and interrogated him. The remaining persons who were present there skulk away from that place.

During the course of interrogation the driver voluntarily confessed by disclosing his identity as P.Ajay Babu who is A1 in this case. He further disclosed that he collected the chicken waste material in and around

Hyderabad and transporting the same to the fish tanks of A3. Then he seized the entire chicken waste material along with vehicle under the cover of Ex.P1 occurrence report. On the strength of Ex.P1 occurrence report, he registered the same as a case in Cr.No.61/18, under Sections 269, 270, 271, 272, 278 r/w 34 of IPC and forwarded the original FIR to this Court and copies to the all concerned. During the course of investigation, he secured the presence of PW.1 and recorded his

SJFCM (Excise) ELURU 9 OF 12 CC No. 195 of 2020 statement. Again, he visited the scene of offence, observed the scene and prepared Ex.P6 rough sketch. There, he secured the presence of LWs.2 to 4 and recorded their statements. Thereafter he returned to the Police

Station and presented a representation before LW.5 and obtained Ex.P7 destruction proceeding. Basing on the said proceedings, he buried entire chicken waste material at the outskirts of Kolleru area in the presence of

PW.1 and LW.2 under Ex.P2. On the same day, he arrested A.5 and produced him before this Court for judicial remand. Thereafter, he served 41-A Cr.P.C notice on A1 to A4, A6 and enlarged them on bail. After completion of further investigation, LW.9 laid charge sheet against the accused.

[e] In order to establish the guilt of the accused Nos.2 to 6 for the offence under Section 269 IPC, the prosecution has to establish the following ingredients:-

(i)the accused did an act unlawfully or negligently;

and

(ii)the accused knew or had reason to believe that the said act was likely to spread the infection of a disease dangerous, to life.

Initially, the prosecution has to prove that, they transported chicken waste from Hyderabad and mixed the same in fish tanks. To prove the said aspect there is no iota of evidence. Further, as seen from the evidence of

PW1 and PW4, there is no material to show that, the accused did the act unlawfully or negligently and there is no reason to believe that the said act likely to spread infection of the disease dangerous to life. Hence, the prosecution failed to establish the guilt of the accused Nos.2 to 6 for the offence under section 269 IPC.

SJFCM (Excise) ELURU 10 OF 12 CC No. 195 of 2020 [f] Coming to the offence under section 270 IPC, the prosecution has to establish the following essential ingredients:-

(i) the accused did some act malignantly;

(ii) his act was likely to spread a disease, dangerous to life; and

(iii) the accused then knew, or had reason to believe, that his act was likely to spread the infection of a disease, dangerous to life.

As per the above said section, the most important ingredient of the offence is that the act attributed to the accused which constitutes the offence, must be shown as likely to spread disease which is both infectious and dangerous to life. Here, in this case there is no such evidence to show that the alleged act of accused is likely to spread disease which is both infectious and dangerous to life. Further, as per the evidence of PW1 and

PW4, the investigating officer had seized the entire chicken waste material, but no samples were lifted at the alleged place of offence and moreover, the said alleged chicken waste material was also not sent to the expert to find out whether exploited chicken waste material is infectious and dangerous to life or not. There is no sufficient material to prove the guilt of the accused Nos.2 to 6 for the offence under Section 270 IPC.

Hence, the prosecution failed to establish the guilt of the accused Nos.2 to 6 for the offence under Section 270 IPC.

[g] So far as, the offence under section 278 of IPC is concerned, the prosecution has to establish the following essential ingredients:-

(i) the accused voluntarily vitiated the atmosphere in a particular place; and

(ii) such vitiation made it noxious to the health of persons in general dwelling, or carrying on business, in the neighbourhood, or passing along a public way.

SJFCM (Excise) ELURU 11 OF 12 CC No. 195 of 2020

This section is directed against public, and not a private nuisance.

There is no material to show that the alleged act of accused is to make effect the atmosphere noxious to the other persons. Hence, the prosecution also failed to establish the guilt of accused for the offence under Section 278 IPC.

[h] For the aforesaid mentioned reasons, this Court holds and concludes that the prosecution utterly failed to establish the guilt of the accused Nos.2 to 6 for the offence under Sections 269, 270 and 278 read with 34 IPC. Accordingly, this point is answered in favour of accused.

12. In the result, the accused Nos.2 to 6 are found not guilty for the offence under Sections 269, 270 and 278 read with 34 IPC and accordingly, they are acquitted under Section 255(1) Cr.P.C. The bail bonds of accused Nos.2 to 6 shall remain in force for a period of six(6) months as contemplated under Section 437(A) Cr.P.C. The accused Nos.2 to 6 had not undergone any remand period. The unmarked case property i.e., Mahindra Jayo van bearing No.AP-37-TG-0980, which was given to

Accused No.4 towards interim custody, shall be made absolute after expiry of appeal time.

Dictated to the Stenographer Grade III, transcribed by her, corrected and

pronounced by me in the open Court this, the 11th day of May, 2023.

Sd/- S.Vasu Dev

II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

FAC/SPECIAL JUDICIAL MAGISTRATE OF I

CLASS(EXCISE)- CUM-IV ADDITIONAL

JUNIOR CIVIL JUDGE, ELURU.

SJFCM (Excise) ELURU 12 OF 12 CC No. 195 of 2020

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution :-

RANK NAME NATURE OF EVIDENCE

(Eye witness, Police Witness, Expert witness, Medical witness, Panch witness, other witness) PW.1Talari Raja Ratna SwamyVRO

PW.2Reddi AshirvadamIndependent witness PW.3Madicherla Appa RaoIndependent witness

PW.4K.RamakrishnaInvestigating officer

For Defence Evidence :-

RANK NAME NATURE OF EVIDENCE

(Eye witness, Police Witness, Expert witness, Medical witness, Panch witness, other witness)

NIL

DOCUMENTS MARKED

For Prosecution :-

Exhibit P1: Occurrence report

Exhibit P2: Mediator report .

Exhibit P3: Relevant portion marked in 161 Cr.P.C. statement of PW.2

Exhibit P4: Relevant portion marked in 161 Cr.P.C. statement of PW.3

Exhibit P5: FIR.

Exhibit P6: Rough Sketch.

Exhibit P7: Destruction proceedings

For Defence :- - Nil -.

MATERIAL OBJECTS

Nil

Sd/- S.Vasu Dev

II ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

FAC/SPECIAL JUDICIAL MAGISTRATE OF I

CLASS(EXCISE)- CUM-IV ADDITIONAL

JUNIOR CIVIL JUDGE, ELURU.