Sri Shaik Meera Khasim Saheb

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

KOTABOMMALI

Present : Sri Shaik Meera Khasim Saheb.

Judicial Magistrate of I Class, Kotabommali

Thursday this the 30 th day of November, 2017.

C.C.No. 166/2011

BETWEEN:

Suru Suresh, S/o.Satyanarayana, aged about 26 years, Business, Vysya by caste, R/o. Nimmada Village & Post, Kotabommali Mandal & PS Limits,

Srikakulam District. ...Complainant.

AND:

Chennelli Kamalavasan, S/o.Bairagi, R/o. I.S Residence, D.No. 9-4-131/1/N 113/35, Tolichowky, Neeraja Colony, Golkonda PS Limits, Hyderabad . ..... Accused.

This case coming before me on 29.11.2017 for final hearing in the presence of Sri Pujari Vasudevarao, Counsel for the Complainant and of Sri Krishna Murthy, P.Rama Rao Counsels

for the Accused, upon perusing the material papers on record

and on hearing both sides and having stood over for consideration till this day, the Court delivered the following:-

J U D G M E N T

1.The accusation levelled against the accused is that he issued a cheque on 24.06.2011, for an amount of

Rs.3,60,000/-(Rupees three lakhs and Sixty thousand only) and on 27.06.2011 issued a another cheque for an amount of

Rs.3,00,000/-(Rupees three lakhs only) drawn on State Bank of

India, Secundrabad Branch , in his favour and the same was returned un-paid due to “insufficient funds” and the two cheques were dishonoured and thereby committed an offence punishable

U/s 138 of Negotiable Instruments Act.

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2.The necessary facts for disposal of the case in nutshell are stated as follows:-

The complainant and the accused jointly did a business deeds and in the said business transactions the accused fell due to him an amount of Rs.6,60,000/- (Rupees six lakhs and sixty thousand only). And there were a good acquaintances and good terms in between himself and accused, so that he believed the accused and he did not obtained any written documents as to aforesaid due amount. And the documentary papers of business were kept with the accused. And thereafter he demanded the accused for repayment of the said due amount for which he admitted his liability, but postponed the same on some pretext or other. And then he strongly demanded for repayment of his legal debt, for which the accused issued a cheque bearing

No.134576 for an amount of Rs.3,60,000/- on 24.06.2011 and also issued a another cheque bearing no. 134579 for an amount of Rs.3,00,000/-. On 27.06.2011 in his favour payable at the

State Bank of India, Secunderabad in order to discharge his legal debt to him.

When the complainant deposited the said two cheques for collection in his Bank i.e., Andhra Bank, Kotabommali , and that two cheques returned unpaid by the Banker of the accused on 24.08.2011 on the ground of ‘insufficient funds’ in the account of the accused. Therefore, the complainant got issued legal notice dt.02.09.2011 to the accused by registered post with acknowledgment due for demanding him to pay the above said dishonour cheques amount within 15 days from the date of receipt of the notice, but the accused did not claim the registered post legal notice so the postal authority send the same to his counsel. The accused even after refusal of registered notice did not turn up and did not pay the said cheques amount to him. Hence, the complainant filed this complaint against the accused for an offence punishable

U/sec.138 of Negotiable Instruments Act.

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3.The case was taken on file against the accused

Under Section 138 of Negotiable Instruments Act.

4.On appearance of the accused, copies of documents were furnished to the accused as required Under Section 207

Cr.P.C.

5.The accused was examined Under Section 251

Cr.P.C., by explaining the substance of the accusation constituting an offence punishable Under Section 138 of

Negotiable Instruments Act for which he pleaded not guilty and claimed to be tried. Hence the matter was posted for trial.

6.In support of his claim, the complainant got examined himself as PW.1 and also examined the Branch

Manager of Andhra Bank, Kotabommali viz., Aravelli Vidya

Praveen as PW.2 and got marked EXs.P1 to Ex P7.

7.After closure of the complainant side evidence, the accused was examined u/s 313 Cr.P.C., enabling him to explain the incriminating material available in the evidence of

Complainant against him for which he denied the said evidence as false and examined himself as a defence witness (DW.1) and got marked EX R.1 to Ex R.3. Ex R.1 is the certified copy of the report PW.1 along with FIR, Ex R.2 is the NJ stamp paper and Ex

R.3 is the Charge sheet in CC 142/2015 on the file of JMFC,

Narasannapeta.

8.Heard both sides.

9.Now the point for consideration is :

“Whether the complainant has proved the guilty of

the accused for an offence punishable Under Section

138 of Negotiable Instruments Act and whether

the accused is liable for punishment of the same?” 4

10.P O I N T:

To prove the above case, the Complainant got examined himself as PW.1 got marked EXs.P1 to Ex P7. Ex.P1 is the cheque an amount of Rs.3,60,000/- dated 24.06.2011, Ex.P2 is the cheque an amount of Rs.3,00,000/- dated 27.06.2011,

Ex.P.3 & Ex P.4 are the cheque dishonour memos issued by

Andhra Bank, Kotabommali branch. Ex.P.5 is the office copy of legal notice dt.02.09.2011, Ex.P.6 is the registered returned cover along with acknowledgement. Ex P.7 is the postal receipt dated 02.09.2011.

11.It is well settled proposition of law that the initial burden lies on the drawee i.e., complainant to prove that the cheques in question was issued for a legally enforceable debt or liability due to him. Once the complainant discharges from his initial burden, the onus of proof shifts on to the accused to rebut the presumption Under Section 139 of N.I. Act, that the cheque was issued for a legally enforceable debt or liability. At this juncture, it has to be evaluated whether the complainant could be discharged from his initial burden to prove that Ex.P.1 & Ex P.2 cheques were issued for legally enforceable debt or liability.

12.The complainant viz., Sure Suresh (PW-1) had deposed that in his evidence that he knew the accused and acquainted with him business (Rice transactions) and he has used to supply the Rice bags to the accused and in turn he was selling the same and in the business transactions the accused fell due to him an amount of Rs.6,60,000/- and he demanded the accused to repay the said amount and the accused postponed the same and the later the accused informed to him that he had a sufficient funds in his account SBI, Secundrabad and got issued the Ex P.1 cheque for Rs.3,60,000/- and another Ex P.2 cheque for an amount of Rs.3,00,000/- drawn on SBI, Secundrabad branch in his favour towards part payment of his debt. Then he presented Ex P.1 & Ex.P.2 cheques for collection, in Andhra

Bank, Kotabommali branch and the said two cheques returned 5 unpaid with Ex P.3, Ex P.4 memos, on the ground that “insufficient funds” and therefore, he got issued the Ex P.5 legal notice to the accused under Ex.P.7 postal receipt and the said notice was refused to take by the accused and the said notice was returned vide Ex P.6 (not unclaimed). And the accused did not pay the cheques amount within the stipulated period and hence he filed the complaint against the accused.

13, PW-2: Sri Aravelli Vidya Praveen , Branch Manager of Andhra bank, Kotabommali, had deposed in his evidence that

PW.1 having a account in his branch since 2011 and subsequently the account was closed by the Pw.1 in the year 2013. And further deposed that PW.1 presented a Ex P.1 & Ex P.2 cheques for collection in his branch on 27.06.2011 and the same was returned with their bank memo dated 24.08.2011 (Ex P.3, Ex

P.4) on the ground that “funds insufficient”.

14.On the other hand the accused examined himself as a DW.1 and he had deposed in his evidence that, he had acquaintance with the Pw.1 from 2009 through one Jagadeesh at

Kambakaya Village of Narasannapeta Mandal and in the year 2009, PW.1 approached him and taken him to translate the language in between the PW.1 and the his agent viz., Mohammad

Mastan of Hyderabad with regard to the job in Railways and on that Pw.1 paid Rs.1,00,000/- to the said agent in his presence and later the said agent not provide the job to the PW.1 for which

PW.1 taken the mediator/elder (K.HariVara Prasad) to the

Hyderabad and both are pressurized him to pay that amount and on that in the year 2010 he had given a two cheques (unfilled cheques with his signatures) and one Rs.100/- NJ stamps (un- filled stamp paper) and further in the year 2015 PW.1 filed a criminal case Under Sections 420, 406, r/w 34 IPC against the him and his family members at Narasannapeta PS and the same is pending before the Hon'ble JMFC, Narasannapeta vide CC 147/2015 and the in the said case when he was in the remand period and after lease of bail then PW.1 served the summons in this case upon him and PW.1 never issued any legal notice to 6 \him in this case later Pw.1 got filed the false against him by filled said two cheques which was earlier given to them and he has no business transactions with PW.1 prior to 2009 or after 2009 and he filed the Ex R.1 to Ex R.3 certified copies of the report, NJ stamp paper, charge sheet. Hence request the court to dismiss the complaint as there is no legal enforceable debt.

15. As seen from the defence of the DW.1 , what he had deposed in his evidence and that was not made out by the DW.1 through the cross examination of the PW.1. The accused cross examined the Pw.1 and elicited and taken a different versions of plea which was inconsistent to the evidence of DW.1. The counsel for the PW.1 cross examined the DW.,1 and in the cross examination of the DW.1 he admitted that as per his instructions his counsel cross examined the PW.1.

16. A perusal of the cross examination of the PW.1 by the defence, the accused (DW.1) taken a plea that, he never issued

Ex P.1 & Ex.P.2 cheques to the P.W.1 and the accused not fell due an amount of Rs.6,60,000/- in the business transactions and the accused did not issued Ex P.1, Ex P.2 in token of the above aforesaid debt. And further the plea of the accused is that in the year 2010, PW.1 obtained the double signatures of the accused on Ex P.1 & Ex P.2 at his relatives STD booth , Narasannapeta.

And further contention of the defence is that PW.1 is an un- employee and collected the amounts from his 5 friends (L.Satyanarayana, Kanithi Annamraju, Sakalabaktula Trinadharao,

Seela Krishna Murthy, Ijjada Govida rao, CH.Govindarao) and with his influence to secure the employment to them they paid the amount to PW.1 and in turn PW.1 went to Hyderabad and contacted the Railway officials and due to the language problem with the said Railway officials, then PW.1 contacted the accused who knows in the Hindi and English and he negotiations with him to the Railway employees and paid the amount to them and when they fail to provide his job then PW.1 filed this false case against the accused. And later PW.1 and the Hari Vara Prasad went to Hyderabad and settled the payments with regard to the 7 employments with the Railway officials in the presence of the accused and his mother prior to July, 2011.

17.So as seen from the cross examination of the PW.1 by the defence and the evidence deposed by the DW.1 inconsistence of pleas taken by the Dw.1(accused). As per the evidence of DW.1, PW.1 and one mediator viz., (K.Hari Vara

Prasadd) came to Hyderabad and both are pressurized him and to pay the amount in the year 2010 and on that he had given two cheques (Ex P.1 & Ex P.2), Rs.100/- NJ stamps. As in the cross examination of the PW.1, the defence given a suggestion that in the year 2010 PW.1 obtained double signatures of the accused on Ex P.1, Ex P.2 at his relatives STD booth at Narasannapeta. But where as in the cross examination of the DW.1 , he admitted that

PW.1 and K.J.Vara Prasad came to his house at Tolichoky , Neeraja

Colony, Hyderabad. And forcibly obtained the two cheques (Ex

P.1, Ex P.2) and stamp papers. And admittedly by the Dw.1 that he did not issue any legal notice or the police report against the

PW.1 and the said Vara Prasad about the forcibly obtained of the

Ex P.1, Ex P.2 unfilled cheques with his signatures. So in the absence of the same it cannot be accepted the plea of the accused that Ex P.1, Ex P.2 cheques were obtained in the year 2010 by the PW.1, said Vara prasad with forcibly. And not only that and another way the Dw.1 stated that the said cheques were obtained from him at Narasannapeta STD booth. So the plea of the defence with regard to the Ex P.1, Ex P.2 cheques were concerned it could not be believable.

18.Complainant counsel vehemently argued that the accused made a false plea that Exs.P.1 and P.2 cheques were obtained from the accused forcibly by him and the said Vara

Prasad in the year 2010 by forcibly at Hyderabad. And the EX

P.1, Ex P.2 were issued by the accused towards the due amount of his legal debt. And the accused simply denied that PW.1 never issued the Ex P.5 legal notice to him and it is not the case of the accused that Ex P.5 legal notice was sent to his wrong address and the Ex P.6 said registered returned cover along with 8 acknowledgement cover the postal authority return as “not claimed” So the accused wantonly avoid to take the notice and it is a deemed service the Ex R.1 to Ex R.3 certified copies of FIR,

Report of the PW.1 and NJ stamps is relating to the CC 142/2015 and it was no way concerned to this case. Hence, request the court to punish the accused as per law.

19.There is a force on arguments advanced by the complainant counsel. As seen from the evidence of P.Ws.1 and

PW.2, in the cross-examination P.W.1, he admitted that Ex P.1, Ex

P.2 cheques were belongs to him. But taken defence that the said Ex P.1, Ex P.2 cheques were obtained by the PW.1 with his (DW.1) double signatures on Ex P.1, Ex P.2 at his relatives STD booth, Narasannapeta and the accused not taken a specific plea that the writings in Ex P.1, Ex P.2 cheques are not belongs to him.

20. The learned counsel for the accused vehemently argued that the cheques (Ex P.1, Ex P.2) in question has not been issued by the accused to the complainant and that the complainant failed to prove that the cheques in question was issued by him towards the discharge of any leally enforceable debt. He also argued that no notice has been issued and served upon the accused and this complaint is filed falsely against the accused.

21.The complainant got himself examined as PW-1 and he also examined Bank Manager, Andhra Bank, Kotabommali as

PW.2 and PW.1 categorically stated that in the business transactions the DW.,1 fell due to him an amount of Rs.6,60,000/- and when he demanded the accused to repay the said amount postponed the same and later he had issued the Ex p1, Ex P.2 cheques for the total amount of Rs.6,60,000/- (legal debt).

However, the accused is denying the issuance of the cheques in favour of P.W.1 towards discharge of legal enforceable debt. In this case it is pertinent to mention here that the accused admitted that the signatures on Ex P.1, Ex.P.2 belongs to him.

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22. The main contention of the accused is that he did not issue Ex P.1, Ex.P.2 cheques in favour of P.W.1 towards discharge of any legally enforceable debt.

23.The learned counsel for the complainant vehemently contended that the accused admitted about Ex P.1, Ex.P.2 cheques, and he did not issue Ex P.1, Ex.P.2 cheques as towards the due legal debt of PW.1. And when the accused admitted Ex

P.1, Ex.P.2 cheques were belongs to him, presumption arises that the cheques were drawn for consideration on the date which the cheque bears,In this connection, he placed strong reliance in the case of: K.Bhaskaran Vs. Shankaran Vaidhyan

Balan and Another/MANU/SC/0625/1999 = 2000

(1) ALT (Crl.) 42 (SC),whereinthe Hon’ble Apex

Courtheld in para -10 as follows:-

“As the signature in the cheque is admitted to be

that of the accused, the presumption envisaged in

Sec.118 of the Act can legally be inferred that the cheque

was made or drawn for consideration on the date which

the cheque bears. Sec.139 of the Act enjoins on the court

to presume that the holder of the cheque received it for

the discharge of any debt or liability. The burden was on

the accused to rebut the aforesaid presumption.”

24.In the present case, the accused admitted that Ex

P;1, Ex.P-2 cheques belongs to him, but according to him, he did not issue them to PW-1 towards discharge of any legally enforceable debt. The accused, except simply stating that he did not issue the said cheques towards the discharge of any legally enforceable debt or liability, he did not choose to adduce any rebuttal evidence in this regard. Except the evidence of D.W.1.

25.He also relied on another case in K.N.Beena Vs.

Muniyappan and Another/MANU/SC/0661/211 =

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2001 (2) ALT (Crl.) 382 (SC)wherein the Hon’ble

Apex Court held that –

“In a complaint under Section 138 of the Negotiable

Instruments Act, the Court has to presume that the

cheque was issued for a debt or liability and the burden

is on the accused to rebut the presumption.”

26.In the present case also, though the accused denied to have issued Ex P.1, Ex.P-2 cheques towards discharge of any legally enforceable debt, he failed to adduce evidence to rebut the presumption under Section 118 of the Negotiable

Instruments Act. Therefore, presumption can be drawn that the accused has issued Ex.P-1 cheque in favour of PW-1 towards the discharge of legally enforceable debt. Though the accused examined as a DW.1 , as stated supra DW.,1 failed to prove his defence.

27.The learned Counsel for the accused vehemently contended that no notice has been sent to the accused at

Hyderabad his residential address. So, the accused not received the Ex P.5 notice.

28. The defence counsel also submitted a decision reported in the case of: K.Annaji Rao. Vs. N.Krishna

Raju Sekhar and another = 2004 (1) ALD (Crl.)

815 (A.P) wherein the Hon’ble High Court held

that

“Notice should not be deemed to have been served

as a matter of course and deemed service is to be

accepted in the facts of each case as required

u/s.138 (b) read with clause (c) thereof .”

29.The complainant has not adduced evidence to show that the notice sent by registered post was served on the 11 accused and further also placed the Note Case (M.P) that when the intimation was given about the registered post by the postman, the complainant has to examine the concerned postman to prove the fact intimation was given to the accused as 'not claimed'. But the P.W.1 failed to prove about the intimation about the notice to the accused through postman. Hence, request the court to acquit the accused on this ground.

30.I have gone through the above Hon’ble High Court decisions, wherein the Hon’ble High Court held that when no evidence was adduced that the notice sent by registered post was served, it is to be said that service of notice on the accused is not proved. But the complainant relied upon Apex Court decision reported in: 2007(2) A.L.D. (Crl.) 294 S.C., and the

Apex court decision is applicable to the present facts and circumstances of the case and 2009 (2) A.L.D. (Crl.)(NOC) 30 (MP) is only the Note of case and it cannot be given much weight in view of the Hon’ble Apex Court decision reported in 2007 (2)

A.L.D. (Crl.) 294.

31. Ex.P.5 office copy of the legal notice, which was sent to the accused (Ex P.6 returned cover) is addressed to the accused to his address ie., D.No.9-4-131/1/N/113/35, Neeraja

Colony, Hyderabad and Ex.P.7 Postal receipt dated 02.09.2011 is also the same address in Hyderabad and Ex.P.6 returned registered post cover is also the same address.

32.The learned counsel for the complainant vehemently argued that the accused simply had deposed in his evidence that, PW.1 never issued a any Ex P.5 notice to him and that to it is not the case of the DW.1 is that, PW.1 sent the Ex P.5 notice to his wrong address. knowing fully well about Ex.P.5 notice, he did not receive Ex.P.6 registered post, though, postal authorities were intimated to the accused about Ex.P.6 notice and the postal authorities made a endorsement that the “not claimed” and it is a sufficient service. In this regard, the learned counsel for the complainant relied upon the decision reported in: 2007 (2) ALD 12 (Crl.) 294 (SC), wherein the Hon’ble Apex Court held that “where payee dispatches notice by registered post with correct address of drawer of cheque, presumption under Section 27 would be attracted, which is far stronger presumption, than general presumption under Section 114 of Evidence Act –

Complaint only to contain basic facts regarding mode and manner of issuance of notice to drawer of cheque –It is then for drawer to rebut presumption about service of notice and show that he had no knowledge that notice was brought to his address or that address mentioned on cover was incorrect.”

33.The learned Counsel for the complainant relied on the case of: Joseph Jose Vs. J.Baby and State of

Kerala/MANU/KE/0409/2002 = 2002 Crl.L.J.4392,

wherein, the Hon’ble Kerala High Court held that –

“There is no burden on complainant to prove before

Court entire details of transaction resulting in

issuance of cheque and there is presumption that

cheque was issued for discharge of debt or other

legal liability.”

34. In the present case on hand, as already stated supra, the notice under Ex.P-5 was sent to the correct residential address of the accused and the same address was also mentioned in Ex.P-6 returned registered cover and on back it was endorsed intimation was given as “not claimed”.

35. In view of the observations made by the Hon’ble

Apex Court and also the Hon’ble Kerala High Court in the above cited decisions, this Court has no hesitation to hold that the service of Ex.P-5 legal notice is well established.

36.So in view of the above foregoing discussion, PW.1 proved his case against the accused beyond all reasonable doubt that Ex P.1, Ex.P.2 cheques were issued for discharge of legally 13 enforceable debt. and it was dishonoured due to “insufficient funds” in the account of accused as per Ex.P.3, Ex P.4 memos, as such, the accused is liable for conviction for the offence punishable u/s 138 of Negotiable Instruments Act.

37. In the result, the accused is found guilty for

the offence punishable Under Section 138 of Negotiable

Instruments Act and he is accordingly convicted of the

same Under Section 255 (2) Cr.P.C.

Directly typed to my acting steno, on my

personal lap top and corrected and pronounced by me in

the open Court on this the 30 th day of November, 2017.

Sd/-Shaik Meera Khasim Saheb,

JUDICIAL MAGISTRATE OF I CLASS,

KOTABOMMALI.

38. Heard about the quantum of sentence, for which the accused represented that he had wife and children and they are depending on his earnings and hence requested the Court to take a lenient view.

39. Hence, considering the representation made by the accused and the facts and circumstances of the case on hand, the accused is convicted u/s.255 (2) Cr.P.C., for the offence punishable u/s.138 of Negotiable Instruments Act and sentenced to suffer Simple Imprisonment for one (1) year.

Directly typed to my acting steno, on my personal

lap top and corrected and pronounced by me in the open

Court on this the 30 th day of November, 2017.

Sd/-Shaik Meera Khasim Saheb,

JUDICIAL MAGISTRATE OF I CLASS,

KOTABOMMALI

Appendix of Evidence

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Witnesses Examined

For Prosecution : For

Defence :

PW.1 : Sure Suresh/dt 02.08.2017 -NIL-

PW.2: Sri Aravalli Vidya Praveen/dt 10.10.2017

Exhibits Marked for Prosecution

Ex.P1 is the cheque an amount of Rs.3,60,000/- dated 24.06.2011. Ex.P2 is the cheque an amount of Rs.3,00,000/-

dated 27.06.2011. Ex.P.3 & Ex P.4 are the cheque dishonour

memos issued by Andhra

Bank, Kotabommali branch.

Ex.P.5 is the office copy of legal notice dt.02.09.2011,

Ex.P.6 is the registered returned cover along with acknowledgement. Ex P.7 is the postal receipt dated 02.09.2011.

Exhibits Marked for Defence

Ex R.1 is the certified copy of the report PW.1 along with FIR.

Ex R.2 is the NJ stamp paper.

Ex R.3 is the Charge sheet in CC 142/2015 on the file of JMFC,

Narasannapeta.

Material Objects Marked

Nil.

Sd/-Shaik Meera Khasim Saheb,

JUDICIAL

MAGISTRATE OF I CLASS,

KOTABOMMALI

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS,

KOTABOMMALI

CALENDAR AND JUDGMENT

C.C.NO.166/2011

Date of offence:Prior to -nil- Date of Complaint or report: - 15

Date of apprehension of - accused: Date of release on bail:- Date of commencement of 02.08.2017 trial: Date of close of trial:10.10.2017 Date of sentence or order:30.11.2017 Explanation of delay:Due to non production of witnesses by the prosecution. Name of the complaint:Suru Suresh, S/o.Satyanarayana, aged about 26 years, Business, Vysya by caste, R/o. Nimmada Village & Post, Kotabommali Mandal & PS Limits, Srikakulam District Name of the Father'sAgeReligionVillage & AccusedName Mandal Chennelli Kamalavasan, S/o.Bairagi, R/o. I.S Residence, D.No. 9-4- 131/1/N 113/35, Tolichowky, Neeraja Colony, Golkonda PS Limits, Hyderabad

Offence: Under Section 138 of NI Act

Finding: The accused found guilty.

Sentence or Order: Accordinglythe accused is found guilty for the offence punishable Under Section 138 of Negotiable Instruments Act and he is accordingly convicted of the same Under Section 255 (2) Cr.P.C and sentenced to suffer Simple Imprisonment for one (1) year.

SD/­Shaik Meera Khasim Saheb,

Judicial Magistrate of I Class,

Kotabommali.

Copy submitted to Hon'ble I Additional District & Sessions Judge, Srikakulam for perusal. Copy to the Superintendent of Police, Srikakulam.

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

KOTABOMMALI

Present : Sri Shaik Meera Khasim Saheb.

Judicial Magistrate of I Class, Kotabommali

Friday this the 15 th day of December, 2017.

C.C.No.217/2013

BETWEEN:

The State Represented by the Sub Inspector of Police

Kotabommali Police Station. ...Complainant.

AND:

Metta Dhavaleswara Rao, S/o. Mallayya, age 3 years. Kalinga by caste, Podugupadu Village, Kotabommali Mandal. ...... Accused.

This case coming before me on 12-12-2017 for hearing in the presence of Sri APP for the State and of Sri P.Vadudevarao Counsel for accused, upon perusing the material papers on record and upon hearing both sides and having stood over for consideration till this day, this Court delivered the following :-

J U D G M E N T

1.The State represented by the Sub Inspector of Police, Kotabommali P.S has filed a charge sheet against the accused in Cr.No. 161/2013 for the offences punishable Under Sections 498-A, 323 IPC and Section 3 & 4 of Dowry Prohibition Act.

2.The brief allegations of the charge sheet are that :-

The LW.1 (Metta Bujji) who is the defacto- complainant/Victim. The parental village of LW.1 is a resident of Podugupadu Village of Kotabommali Mandal. LW.1 married with the accused of Podugupadu Village since 4 years as per their caste customs and Hindu rites. LW.1 had one daughter and she is the 2nd wife of the accused, accused first wife died, first wife had one son. After marriage of LW.1 and accused lead their marital life, after that the accused harassed the LW.1 by physically, mentally and financially and the accused demand the LW.1 to bring additional dowry and land and 2 he used to beat the LW.1 and he did not provide food to her and he harassed her. The LW1 had father and her mother was died. Her father also residing in Podugupadu Village, due to un-bearable harassment. LW.4(Yenda Bhaskara rao) somany times admonish the accused, but the accused did not heard his words. Every day the accused came to house in drunken condition and he harassed the LW.1 by demand her bring additional dowry from her parents house and he abused the LW.1 and her parents in foul and filthy language and he caught hold tuft of her hair and dragged her and beat her with hands and kicked her with legs due to un-bearable harassment. LW.2 (Duppala Appanna) gave AC 0.10 cents and cash of Rs.10,000/- as

additional dowry to accused in the presence of village elders. Since 3

days ie., on 01.12.2013, LW.2 returned to village, on the same day evening at about 6.30 hours while in drunken state the accused abused to LW.1 and beat LW.2 with hands at the pan shop of LW.8 (Hanumanthu Jagannadham), on seeing incident LW.3 to LW.6 (Duppala Pentayya, Yanda Bhasakara rao, Gunta Simhachalm, Singam Kanaka rao) rushed there and rescued LW.2 from the hands of the accused. Every day the accused harassed the LW.1 by physically, mentally and financially and he demand the LW.1 to bring additional dowry and land from her parents house.

Basing on the report of L.W1, the LW.9 (Sri K.Ravi Kishore, Sub Inspector of police) registered the case, examined the witnesses and recorded their statements , and on 07-12-2013 he arrested the accused and send him to court along with his remand report. After completion of the investigation LW.10(Sri K.Venkateswara Rao, SI of Police) laid charge sheet against the accused.

3.This court had taken cognizance for the offences punishable Under Sections 498-A, 323 IPC and Section 3 & 4 of DP Act.

4.On appearance of the accused, copies of case records as required Under Section 207 Cr.P.C., have been supplied to him.

5.The accused is examined Under Section 239 Cr.P.C and charges Under Sections 498-A, 323 IPC and Section 3 & 4 of DP Act have been framed, read over and explained to him in Telugu for which he pleaded not guilty and claimed to be tried. Hence the matter was posted for trial.

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6.To prove its case against the accused, the Prosecution got examined PWs 1 to PW.9 and got marked EX.P-1 to Ex P.4 besides Ex D.1.

7. After closure of the Prosecution evidence, the accused was examined Under Section 313 Cr.P.C. enabling him to explain the incriminating material found against him in the evidence of Prosecution witnesses for which the accused denied the evidence as false. No evidence adduced on behalf of defence, but no documents are marked.

8. Heard Arguments on both sides:

9.Now the point for determination is:

Whether the Prosecution has proved the guilt of the

accused for the offences punishable Under Sections

498-A, 323 IPC and Section 3 & 4 of DP Act with which he

was charged. If so, whether the accused is liable for

punishment of the same ?

10. POINT :

To prove its case against the accused, though the Prosecution has cited as many as (10) witnesses, Out of them PW.1 to PW.9 were examined and got marked EX.P1 to Ex P4. Ex.P1 is the Report of PW.1. Ex P.2 is the 161 Cr.P.C statements of PW..7. Ex P3 is the Original First Information Report and Ex P.4 is the Rough Sketch. EX D.1 is the 13th line to 15 lines of 161 Cr.P.C Statement of PW.5. Sri APP has given up LW .10 (Sri K.Venkateswara rao, SI of Police Kotabommali PS).

11.To prove the case of the prosecution, the prosecution has mainly relied upon the evidence of PW.1 to PW.9. Out of them PW.1 is the Defacto complainant. P.W. 2 is the no other than the father of PW.1. PW.3 to PW.8 are the elders and circumstantial witnesses to speak about the harassment of the accused and PW. 9 is the Investigating Officer in this case.

12.In the Present case P.W.7 is the eye witness in this case he did not support the case of the prosecution and he turned hostile, 4 hence his evidence has no way helpful to the case of the prosecution, there remains only the evidence of PW.1 to PW.6, PW.8 & PW.9 for consideration of the case of the prosecution.

13. In the present case PW.1 is the Defacto-Complainant and PW.2 is no other than the father of the PW.1. Hence their evidence shall be scrutinized with little bit more care and caution else any amount of doubt, prejudice will be caused to the accused.

14.As seen from the evidence of PW.1 she had deposed that her parents presented a cash of Rs.50,000/-, 4 tulas of gold , AC 0.11 cents of land given to the accused and the accused look after her properly for period of one year from the date of her marriage at Podugupadu village there after the accused harassed her to bring

additional dowry, land and gold from her parents , but the accused did

not change his attitude and used to beat her and harassed her and out of wed lock she have blessed one female child and she is aged about 7 years and three occasions placed the mediations and finally in the year 2013. But the accused did not change his attitude and also stated that the accused married her after the death of his 1st wife and the said 1st wife had a one male child and further deposed that in the year 2013 the accused beat her father on the main road. Then she presented a Ex P.1 report.

15.The contention of the defence is that the accused never harassed the PW.1 at any point of time and accused was got married the PW.1 in 2nd marriage, after the death of his first wife and the accused himself bare the marriage expenses and the parents of PW.1 never presented any dowry to him and the accused married the PW.1 to take care of his 1st wife son who is aged about 7 years. And further contended that the PW.1 not interested to live with the accused joint family and for that reason the accused taken her to Chennai and they were lived 2 years prior to the disputes and the PW.1 harassed the accused at Chennai and she came down to Podugupadu village without informed to the accused and got filed this false case against the accused and the PW.3 to PW.8 are not the neighbours to the house of the PW.1 and there are so many exaggerate versions in her evidence and the evidence of PW.1 is not coupled with the evidence of PW. 2 to PW.6, PW.8 & PW.9 and also the contents of Ex P.1, Ex P3, & EX P.4. Hence request the court to acquit the accused.

5

16.There is a force on arguments advanced by the defence counsel. A perusal of the Ex P.1 report, PW.1 did not mention about the presentation of cash of Rs.50,000/-, 4 tulas of gold and AC 0.11 cents of land to the accused. And further in Ex P.1 report it averred that on 01.12.2013 at about 06.30 PM., the accused with a drunken condition abused her father (PW.2) and beat him and the same was witnessed by her villagers PW.3, PW.7, one Buragapu chinnarao and Bagadi Ramesh and rescued her father in the hands of the accused. But where as PW.1 stated in her chief examination that the accused beat the PW.2 at evening hours on the Main road. If really the fact may be true the PW.2 ought to have deposed before this court. But as seen from the evidence of PW.2 who is the father of the PW.1 had deposed that on 01.12.2013 the accused beat the PW.1 for which she fallen on the steps and further deposed that the accused necked out the PW.1 from his house to bring dowry amount. Then PW.1 presented a Ex P.1 report.

17.As per version of the Pw.1, the accused beat the PW.2 on the main road. But as per version of the PW.2 there is no whisper in his evidence that the accused beat him with a drunken state. But the evidence of PW.2 otherwise discloses that the accused beat the PW.1 for which she fallen down on the steps. But PW.1 did not state in her evidence that the accused beat her for which she fallen on the steps, so the evidence of PW.1 is not coupled with the evidence of PW.2/father with regard to the above aspect..

18.In the cross examination of the PW.1 , she also admitted that her husband(accused) and herself went to Chennai for eking livelihood, two years prior to the disputes and 7 days prior to presentation of EX P.1 report, she came from Chennai to Podugupadu Village. So as per admission of the Pw.1 even if the incident or disputes were occurred at Chennai but not at Podugupadu Village. And admittedly by the Pw.1 in her cross examination that the accused bare the marriage expenses and she is the 2nd wife of the accused and the accused got married her after the death of his 1st wife.

19.When the accused got married the Pw.1 in a 2nd marriage , generally no presentations or dowry were given to the bridegroom and also the bridegroom bare the expenses. In the case on hand though 6

PW.1 admitted that the accused bare her marriage expenses, but she had deposed that her parents presented a cash of Rs.50,000, 4 tulas of gold AC 00.11 cents land to the accused. If really the Pw.2 presented the same to the accused , as stated by the Pw.1, she certainly got mentioned the same in her Ex P.1 report or state before the PW.9/Investigatng Officer in her section 161 Cr.P.C statement. So in the absence of the said facts with regard to the presentations in Ex P.1 report, the fact remains that the PW.2 did not present any dowry and other lanchanams to the accused. And that to the evidence of PW.1 and PW.2 suffers so many infirmities. So their evidence not coupled with each other and also the contents of Ex P.1 report.

 20. On the other hand the prosecution adduced the evidence of

PW.3 to PW.6 and PW.8. Admittedly by the PW.1 in her cross examination deposed that PW.3, PW.7 are the eye witnesses to the incident occurred on 01.12.2013. As stated supra PW.7 turned hostile and he did not state anything about the incident occurred on 01.12.2013. There is only the evidence of PW.3.

21. PW.3 had deposed that on 02.12.2013 PW.1 and his father informed to him that the accused demanded the PW.1 to bring balance of dowry of 10,000/- and 3 tulas of gold and harassed the Pw.1, for which himself and PW.8 hold a Panchayat in his village and asked the accused and look after the Pw.1 properly and after some days again Pw.1 complained the same fact, then he advised to approach the police.

22.As seen from the evidence of PW.3 is not the direct witness for the incident occurred on 01.12.2013 that the accused beat the PW.2 with a drunken condition at the house of PW.2. But the evidence of PW.3 discloses otherwise, PW.1 or PW.2 did not state in their evidence that the accused demanded the PW.1 to bring balance dowry of Rs.10,000/- and 3 tulas of gold and for that they approached the PW.3 and PW.8 for hold a panchayat. So the evidence of Pw.3 cannot be accepted. The PW.8 had deposed that the disputes are with regard to the land of AC 0.10 cents of dowry and he had no personal knowledge about the matrimonial disputes between the PW.1 and the accused. So the evidence of Pw.8 also no way helpful to the case of the Prosecution.

7

23.PW.4 had deposed that on 01.12.2013 at about 8.00 PM., the accused beat the Pw.1 and he do not know the reason for the beating. On the next day himself and PW.3 , PW.8 hold a panchayat at the house of PW.8. But as discussed supra there is no whisper in the evidence of PW.3 and PW.8 with regard to holding of panchayat in respect of accused beat the Pw.1. So the evidence of PW.4 is not coupled with the evidence of Pw.3 & PW.8 . And there are a inconsistence versions in between the evidence of Pw.3, PW.4 and PW.8.

24.PW.5 had deposed that on 01.12.2013 at about 7.00 PM., PW.2 came to his shop and sitting there and meanwhile the accused came to his shop and an altercation was taken place in between the Pw.2 and the accused for which both are pushed aside each other and fell on the ground and both persons are received minor injuries. And later PW.3, PW.7 came to his shop and separated the Pw.2 from the hands of the accused.

25.Even if the evidence of PW.5 may be true, the Pw.3 ought to have deposed the same facts before this court, but as seen from the evidence of PW.3 there is no whisper in his evidence that on 01.12.2013 the accused beat the PW.2 at the shop of Pw.5 at Podugupadu Village. Even PW.2 did not state in his evidence that the accused beat him at the shop of PW.5 and PW.3, PW.7 rescued him. So the evidence of Pw.5 also not coupled with the evidence of PW.1 to PW.3. And more over PW.5 admitted in his cross examination that he did not state before the police that the accused beat the PW.1 with his hands and caught tuft of her hair in front of his shop (EXD.1). PW.9/IO admitted in his cross examination that PW.5 stated before him as per Ex D.1. So the evidence of PW.5 also not inspires the confidence of the court.

26.PW.6 who is no other than the uncle of PW.1 and the own brother of PW.2 had deposed that PW.1 informed to him that the accused is used to beat her for noncompliance of the rest of the dowry amount. And Pw.2 presented a Rs.10,000/- and AC 00.10 cents of land to the accused. But there is no whisper in the evidence of PW.1 and Pw.2 that the accused beat and harassed the PW.1 for non compliance of the rest of the dowry. So as seen from the evidence of the Pw.1 to PW.6 & PW.8, the evidence of Pw.1 is not coupled with the evidence of 8

Pw.2 and also the contents of Ex P.1 report. And further the evidence of PW.3 to PW.6 and PW.8 are not coupled with the evidence of PW.1 and PW.2 in all material aspects.

27.PW.9/Investigation Officer his cross examination stated that PW.1 did not state before him that her parents presented a cash of Rs.50,000/- as a dowry, 4 tulas gold and AC 0.11 cents of land to the accused and so also not got mentioned in Ex P.1 report. And even PW.2 to PW.8 also did not state before him about the dowry particulars presented by the parents of Pw.1. And even PW.1 did not state before him and as well as EX P.1 report that PW.2 presented a additional dowry of Rs.10,000/- and 11 cents of land to the accused. So when the PW.1 , PW.2 did not state about the dowry particulars and other lanchanams to the accused before the PW.9/IO and in her Ex P.1 report, first time PW.1 & PW.2 had deposed in the court that they presented a dowry , gold and land to the accused could not be believable and it indicates that exaggerate and improvement versions given by the Pw.1 and PW.2 against the accused.

28.So in view of my above fore going discussion the prosecution miserably failed to prove the case beyond the reasonable doubt for the offences punishable Under Sections 498-A, 323 IPC and Section 3 & 4 of DP Act and there by accused is entitled for acquittal.

29. In the result, Accused is found not guilty for the

offences punishable Under Sections 498-A, 323 IPC and Section

3 & 4 of DP Act accordingly he is acquitted Under Section

248(1) Cr.P.C for the said offence. The bail bonds of the

accused shall stands cancelled after lapse of 6 (Six) months

period.

Directly typed to my dictation to my acting/Steno on

my personal lap Tap Corrected and pronounced by me in the

open Court on this the 15 h day of December, 2017.

Sd/-shaik Meera

Khasim Saheb, Judl. Magistrate of I Class,

Kotabommali.

9

Appendix of Evidence

Witnesses Examined

For Prosecution : For

Defence :

PW.1 : Metta Bujji/dt 20.06.2017 - Nil- PW.2: Duppala Appanna/dt 31.08.2017 PW.3: Gunta Simachalam/dt 14.09.2017 PW.4: Sinduri Kanakarao/dt 14.09.2017 PW.5: Hanumanthu Jagannadham/dt 10.10.2017 P.W6: Duppala Pentayya/dt 24.10.2017 . P.W7: Tirlagi Chinnappadu/dt 24.10.2017 P.W8: Yenda Bhaskara rao/dt 26.10.2017 PW.9: Sri K.Ravi Kishore, SI of police/dt 22.11.2017

Exhibits Marked for

Prosecution

Ex.P1 is the Report of PW.1/dt04.12.2013 Ex P.2 is the 161 Cr.P.C statements of PW.7/ dt01.12.2013 Ex P3 is the Original First Information Report/ dt 04.12.2013 Ex P.4 is the Rough Sketch/dt 04.12.2013

Exhibits Marked for Defence

EX D.1 is the 13the line to 15 lines of 161 Cr.P.C Statement of PW.5 dt .04.12.2013

Material Objects Marked

Nil.

Sd/-Shaik

Meera Khasim saheb, Judl. Magistrate of I Class,

Kotabommali.

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS,

KOTABOMMALI

CALENDAR AND JUDGMENT

10

C.C.NO 217/2013

Date of offence:Prior to 01.12.2013 Date of Complaint or report: 04.12.2013 Date of apprehension of accused:07.12.2013 Date of release on bail:16.12.2013 Date of commencement of trial:20.06.2017 Date of close of trial:22.11.2017 Date of sentence or order:15.12.2017 Explanation of delay:Due to non production of witnesses by the prosecution. Name of the complaint:The Sub Inspector of Police, Kotabommali P.S. (Cr.No.161/2013) Name of the Father's Name AgeReligionVillage &Mandal Accused

Metta Dhavaleswara Rao, S/o. Mallayya, age 3 years. Kalinga by caste, Podugupadu Village, Kotabommali Mandal.

Offence :U/s.498-A,323 IPC and Section 3 & 4 of DP act

Finding: Accused is found not guilty .

Sentence or Order: Accordingly, Accused is found not guilty for the offence punishable Under Sections 498-A,323 IPC and Section 3 & 4 of DP Act accordingly he is acquitted Under Section 248(1) Cr.P.C for the said offence. The bail bonds of the accused shall stands canceled after lapse of 6 (Six) months period.

Sd/-shaik Meera Khasim saheb,

Judicial Magistrate of I Class,

Kotabommali.

Copy submitted to Hon'ble I Additional Sessions Judge, Srikakulam for perusal. Copy to the Superintendent of Police, Srikakulam.

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS

KOTABOMMALI

Present: Sri S.Meera Khasim Saheb,

Judicial Magistrate of I Class,

Monday, this the 11 th day of December, 2017

CALANDER CASE No. 209/2014.

BETWEEN:

State represented by the Sub-Inspector of Police, Jalumuru Police Station.

...Complainant

AND:

1. Kalingapatnam Suresh, S/o. Chiranjeevulu, age 24 years, SC Relli by caste, Syamasundarapuram Village, Tekkali Mandal, Driver of Tractor and Trailer bearing registrateion NO.AP 30 X 2450 and AP 30 X 2451.

2. Gedela Krishna, S/o. Laxminarayana, age 35 years, Reddika by caste, Boddapadu Village, Kotabommali Mandal, Owner of Tractor and Trailer bearing Registration No. AP 30 X 2450 and AP 30 X 2451.

...Accused

This case coming before me on 08-12-2017 for hearing in the presence of Sri APP for the State and of Sri Sri.R.Jagannadharao, Counsel for accused, upon perusing the material papers on record and upon hearing both sides and having stood over for consideration till this day, this Court delivered the following :-

J U D G M E N T

1.The State, represented by the Sub-Inspector, Jalumuru

Police Station has filed a charge sheet in Cr.No.106/2014 of

Jalumuru P.S for the offences punishable Under Sections 447,379 of I.P.C and Under Section 3 (2)of Prevention of Damages to Public

Property Act 1984 against the accused.

2.The brief facts of the charge sheet are as follows;

The A1 is the Driver of Tractor cum Trailer Bearing

Registration no. AP 30 X 2450 and AP 30 X 2451 and A2 is its owner.

On 15.09.2014 on the instructions of A2, A1 went to Vamsadhara

River Bank at Parlam Village, Jalumuru Mandal on his Tractor cum 2

Trailer, mined the sand from the River Bank illegally by engaging coolies and loaded the sand in to Trailer and left for Tekkali to conduct sale of Sand. On receipt of reliable information LW.9 (Sri

D.vijaya Kumar SI of Police) visited the Vamsadhara Canal, near

Jalumuru Village along with L.Ws.3 to 5 (Seepana Simhachalam,

Konna Anantha, Kottu Madana Mohana sundara Rao, ) and other staff at about 04.30 hours and noticed one Tractor and Trailer coming from Jalumuru side driven by the accused(A1), A2 sat on top of sand on the trailer, then LW.9 stopped the above Tractor and

Trailer with the staff ascertained the identity of the accused and on questioning, the A1 & A2 admitted to have mined the sand illegally from Vamsadhara River Bank at Parlam Village by engaging coolies for conducting sale at Tekkali for gaining illegally as per the directions of A2. Since the A1 & A2 indulged in illegal mining of sand from Vamsadhara River Bank, a natural resource plundered the Public property, causing much damage. Then LW.9 served the notice 41-A Cr.P.C on 16.09.2014 to A1 and A2. On 07.10.2014 seized the sand-laden Tractor and Trailer under the cover of

Mediator report in the presence of LW.5 & LW.6 ( Kottu Madana

Mohana Sundara rao, Pachireddy Ramachandra rao) and left the scene along with the accused and seized property and reached the station and L.W9 registered, Mediator report as case in Cr.No.

106/2014 U/Sec. 447, 379 of I.P.C. and U/Sec.3(2) of Prevention of

Damages of Public Property Act 1984 and examined the witnesses and after completion of the investigation he filed charge sheet.

3.This court taken cognizance for the offences punishable under sections 447, 379 I.P.C and Under Section 3(2) of

Prevention of Damages of Public Property Act 1984.

4.On appearance of the accused, copies of case records as required U/sec.207 of Cr.P.C. has been supplied to the accused.

5.A1 & A2 were examined under section 239 of Cr.P.C. for which they denied the offence. Heard. A Charge Under Sections 447, 379 I.P.C and U/Sec.3(2) of Prevention of Damages of Public

Property Act 1984 has been framed read over and explained to them in Telugu as per section 240(2) Cr.P.C, for which they pleaded 3 not guilty and claims to be tried. Hence, the matter is posted for trial.

6.In order to establish the case of the prosecution, P.W.1 to P.W5 were examined and got marked Ex.P-1 to P-4.

7.After closure of prosecution evidence, the A1 & A2 were examined U/s 313 Cr.P.C and explained the incriminating the material found in the evidence of prosecution witnesses against the accused, for which they denied the evidence as false and they did not choose to examine any witnesses on their behalf and no documents were marked.

8.Heard the arguments on both sides:

9.Now, the point for determination is:

whether the Prosecution has proved the guilt of the

accused for the offence, with which they are charged and

if so, whether the accused are liable for punishment of

the same?

P O I N T :

10.

In order to prove its case, though the prosecution has cited as many as 9 witnesses, Out of them PW.1 to PW.5 were examined and got marked Ex.P-1 to P-4. Ex P.1 & Ex P.2 are the 161 Cr.P.C Statements of PW.2 & PW.3. Ex P.3 is the Mediator report and Ex.P4 is the Original FIR . Sri APP has given up LW.2, LW.6 to

LW.8 (Byri Laxminarayana, Panchireddy Ramachandra rao,

B.Laxminarao PC 2195, and P.Syamalarao ASI of Police).

11.To prove the case of prosecution, the prosecution has mainly relied upon the evidence of PW.1 to PW.5. Out of them PW.1 is the official witness. PW.2, PW.3 are the eye witnesses, PW.4 is the then VRO, mediator for the seizure of property and Pw.5 is the

Investigating Officer.

12.The contention of the learned APP is that on credible information PW.5 along with PW.2 to PW.4 and other staff 4 members proceeded to the Challavanipeta Junction at about 4.30 am., Jalumuru mandal and waiting for illegal transportation of the sand by the Tractor-cum-Trailer and when they are watching the same at about 04.30 AM on 16.09-2014 PW.5 detained the Tractor- cum Trailer along with the load of sand in his respective vehicle and detained the accused(A1) and the accused(A1) failed to produce any valid licence or permit for possession of the sand in his Tractor.

Hence arrested the accused(A1) and seized the Tractor under the cover of Mediator Report in the presence of PW.3 & PW.4. And further contended that the evidence of PW.5 is coupled with the evidence of PW.4 and also the contents of Ex P..3, Ex P.4. Hence request the court to punish the accused as per law.

13.On the other hand the Defence counsel contended that

PW.5 not followed the procedure under Section 100 Cr.P.C while seizing the property and there is no evidence foot forth by the prosecution under Section 3(2) of Damage to the Public Property Act and the evidence of PW.5 is not coupled with the evidence of PW.1 to PW.4 and the police reported the seizure of property to the court after 10 days and the there is no investigation on lines what about the sand and the same was not mentioned in the charge sheet and the accused is never committed any offence as alleged by the prosecution. Hence request the court to acquit the accused.

14There is a force on a argument advanced by the defence counsel. In the present case PW.2, PW.3 who are the eye witnesses to the alleged incident turned hostile and they did not support the case of the prosecution. Hence their evidence has no way helpful to the case of the prosecution , their remains only the evidence of Pw.1, PW.4/Mediator and PW.5/IO. It is true that a perusal of the evidence of P.W.5 there is no whisper in his evidence that the accused is damaged to the Public Property ie., Sand.

Though the sand belongs to the State Govt., property there is no evidence adduced by the prosecution that accused damaged the sand. So the section U/sec. 3(2) of Damage to Public Property Act not attracted in the present facts and circumstance of the case.

5

15.Coming to the sections 447, 379 IPC the prosecution adduced the evidence of PW.1 & PW.4. Admittedly in the cross examination of the PW.1, he stated that he did not give any report to the police about the theft of the sand from Vamsadhara River to the police. And his evidence only discloses that in the year 2014 he did not grant any permission to mine the sand from Vamsadhara

River Bank at Parlam Village in his jurisdiction.

16.So a perusal of evidence of PW.1, the PW.1 is not a

Defacto -complainant and he did not give any report to the police with regard to the theft of the sand. So as stated by the PW.5/

Investigating Officer in his cross examination that he received information about the theft of the sand from Vamsadhara River

Bank at Parlam Village of jalumuru Mandal. And further admitted in his cross examination that there is no direct evidence to the alleged theft of the sand from the Vamsadhara River Bank at Parlam

Village and more over PW.1 is not the direct witness for the alleged theft of the sand.

17.Admittedly there is no direct evidence for the theft of the sand by the accused. So Sections 447, 379 IPC was not attracted. But the case of the prosecution that the PW.5 detained

Tractor along with his load of sand in trailer. As the accused not produced any not valid licence or permit for transportation of the sand, so the Pw.5 seized the sand vehicle in the presence of PW.4 under the cover of EX P.3 Mediator Report. If a moment the story of the prosecution may be true the PW.5,/IO ought to have report the seizure of the property to the court. Immediately on the date of seizure of the property. In the case on hand the prosecution seized the property on 16.09.2014, but PW.5/Investigating Officer admittedly in the cross examination of the PW.5 he stated that he reported the seizure of the property on 16.09.2014 and physically produce the property before this court on 26.09.2014. And he was also not prepared the separate seizure memo and not supplied to seizure list to the accused.

18.In this connection the defence counsel vehemently argued that, if really the seizure was made by the PW.5 he ought to have report the seizure to the court on the date of the seizure of 6 the property ie., on 16.09.2014, but in this case PW.5 physically produce the property on 26.09.2014. So ie ., more than 10 days of the seizure of the property, the PW.5 reported the seizure to the court. So if really PW.5 seized the property on the date on 16.09.2014 he produce the same before the court on 16.09.2014 but after 10 days the PW.5 produce the property and that property was planted one and not seized from the accused. And further contended that no investigation on lines, what about the sand.

Hence the request the court to acquit the accused on this ground.

19.It is true that PW.5 admitted that he produce the property on 16.09.2014 and physically produce the property on 26.09.2014, so rightly pointed out by the defence counsel that, if

PW.5 seized the property the PW.5 ought to have report the seizure to the court on the date itself. But in this case more than 10 days of the seizure of the property, he reported to the court. So the case of the prosecution can be doubted with regard to the seizure of the property. And the prosecution did not explain any reason for delay of production of the property on 26.09.2014. The prosecution did not file any photos relating to the property or not filed any mediator report what about the load of the sand. So in the absence of oral or documentary evidence with regard to the load of the sand vehicle was concerned, the case of the prosecution was doubted whether the PW.5 seized the Tractor cum Trailer laden with the sand from the

A1.

20.PW.4/mediator stated in his cross examination that EX

P.3 Mediator report was drafted at police station. So as per version of the PW.4, Ex P.3 Mediator report was drafted at the Police

Station, where as PW.5 stated that Ex P.3 report was drafted at

Place of the offence. So there is a discrepancy found in the evidence of PW.4 & PW.5 with regard to the drafting of Ex P.3 report, whether at police station or at scene. And more over

PW.5/Investigating Officer admitted in his cross examination that Ex

P.3 mediator report drafted by PW.4. But PW.4 had stated in his cross examination that Ex P.3 mediator report was drafted by one constable. So there is a discrepancy in between the evidence of

Pw.4 & PW.5 with regard to the Ex P.3 mediator report and further

PW.4 stated in his chief examination that he could not able to say 7 the driver of the tractor and also its registration number. So it indicates that there is a doubt about the case of the prosecution.

And as discussed supra the prosecution failed to produce the property or not given any satisfactory explanations for release of the sand. There is no investigation on lines how the A2 is connected to this case.

21.So in view of my above fore going discussion the evidence of PW.5 not coupled with the evidence of PW.1 & PW.4 and also the contents of Ex P.3 & Ex P.4. So the prosecution failed to prove the guilt of the accused beyond all reasonable doubt ,there by the accused entitled for acquittal.

22. In the result, A1 & A2 are found not guilty for

the offences Under Sections 447, 379 IPC, Section 3(2) of

Prevention of Damage to Public Property Act against

Accused and accordingly they are acquitted U/s 248(1)

Cr.P.C. Their bail bonds of the accused shall stands

cancelled after lapse of 6 months period. The Tractor

bearing NO. AP 30 X 2450 and its Trailer bearing No. AP 30 X

2451 was given interim custody to the A2 /Owner as per

orders in Crl.MP 496/2014 dated 22.09.2014 and the same

was made absolute after expiry of appeal time.

Directly typed to my dictation to acting/steno on my

Personal Lap Tap, corrected and pronounced by me in the

open court, on this the 11 th day of December, 2017.

Sd/-shaik

Meera Khasim Saheb,

Judicial Magistrate of I Class,

Kotabommali.

Appendix of evidence

Witnesses examined

For Prosecution For Defence

P.W.1: K.V.N.Uma Maheswararao,dt. 15.11.2017. -Nil- P.W.2: Seepana Simhachalam/dt 22.11.2017 P.W.3: Konna Anantha/dt 22.11.2017 P.W.4; Kotti Madan Mohan Sundar Rao/dt 28.11.2017 P.W.5: Sri.D.Vijaya Kumar,SI of Police/ dt.28.11.2017 8

Exhibits marked on Prosecution side

Ex.P-1 is the 161 Cr.P.C Statement of PW.2/dt 16.09.2014 Ex P.2 is the 161 Cr.P.C statement of PW.3/dt 16.09.2014 Ex P.3 is the Mediators report dt. 16.09.2014 Ex P.4 is the Original FIR dt 16.09.2014

Exhibits marked on Defence side

Nil

Material objects marked

-Nil-

Sd/-shaik Meera Khasim saheb,

Judl. Magistrate of I Class, Kotabommali.

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS,

KOTABOMMALI

CALENDAR AND JUDGMENT

9

C.C.NO.209/2014

Date of offence:Prior to 16.09.2014 Date of Complaint or report: 16.09.2014 Date of apprehension of accused:07.10.2014 Date of release on bail:25.09.2014 Date of commencement of trial:15.11.2017 Date of close of trial:28.11.2017 Date of sentence or order:11.12.2017 Explanation of delay:Due to non production of witnesses by the prosecution. Name of the complaint:The State Represented by the Sub Inspector of Police,, Jalumuru P.S. (Cr.No.106/2014) Name of the Father's AgeReligionVillage &Mandal AccusedName

1. Kalingapatnam Suresh, S/o. Chiranjeevulu, age 24 years, SC Relli by caste, Syamasundarapuram Village, Tekkali Mandal, Driver of Tractor and Trailer bearing registrateion NO.AP 30 X 2450 and AP 30 X 2451.

2. Gedela Krishna, S/o. Laxminarayana, age 35 years, Reddika by caste, Boddapadu Village, Kotabommali Mandal, Owner of Tractor and Trailer bearing Registration No. AP 30 X 2450 and AP 30 X 2451.

Under Sections: 447, 379 IPC , Section 3(2) of Prevention of Damage of Public Property Act.

Finding: The accused A1 and A12 are found not guilty.

Sentence or Order: Accordingly the A1 & A2 are found not guilty for the offences Under Sections 447, 379 IPC, Section 3(2) of Prevention of Damage to Public Property Act against Accused and accordingly they are acquitted U/s 248(1) Cr.P.C. Their bail bonds of the accused shall stands cancelled after lapse of 6 months period. The Tractor bearing NO. AP 30 X 2450 and its Trailer bearing No. AP 30 X 2451 was given interim custody to the A2 /Owner as per orders in

Crl.MP 496/2014 dated 22.09.2014 and the same was made absolute

after expiry of appeal time.

Sd/-shaik Meera Khasim

saheb,

Judicial Magistrate of I Class,

Kotabommali.

Copy submitted to Hon'ble I Additional District & Sessions Judge, Srikakulam for perusal. Copy to the Superintendent of Police, Srikakulam.

10

1

IN THE COURT OF JUDICIAL MAGISTRATE OF I CLASS,

KOTABOMMALI

Present: Sri Shaik Meera Khasim Saheb,

Judicial Magistrate of I Class, Kotabommali.

Friday this the 15 th day of December,2017

C.C. No.07/2014

BETWEEN:

The State Represented by the Sub-Inspector of Police, Jalumuru P.S. ..Complainant

AND:

1. Gollangi Bhaskara Rao, S/o. Late Rama Murthy, age 50 years,

2. Gollangi Chinnadu @ Chinna Rao, S/o. Late Rama Murthy, age 45 years.

3. Gollangi Laxminarayana, D/o. Chinnadu @ Chinnarao, age 19 years

All are Velama by caste, and residents of Yeneti Kothuru Village, Jalumuru Mandal.

…...Accu

sed

This case is coming on 12-12-2017 for final hearing before me in the presence of Sri. A.P.P., for the complaint and of Sri K.Atchanniadu, Advocate for the A.1 to A.3 and on hearing both sides and after having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

1.The State, represented by Sub-Inspector of Police

Jalumuru Police Station has filed a charge sheet in Cr.No. 95/2013 of

Jalumuru PS for the offences punishable Under sections 324, 323 r/w 34 IPC.,

2.The brief facts of the case as per the charge sheet are as follows:-

LW.1- (Pasala Gowramma) is the defacto complainant and she is resident of Yeneti Kothuru Village of Jalumuru mandal and she is got own house. A1 got constructing colony house towards east to the house of LW.1. For which LW.1 asked the A1 in 2 several times to give amount which is “Mudhara” as LW.1 was already constructed her house. But A1 did not give the said amount and gave reply in arrogant manner. While so, on 14.12.2013 at about 13.00 hours while LW.2 to LW.4 (Pasala Somayya, Pasala

Lakshmi, Pasala suryanarayana) were in the house and by that time

Lw.1 asked the A1 about constructing of the said wall without give the difference amount and that heated discussion arose between them and meantime A1 poked with the stick below the chest of LW.1 and caused swelling. Meantime A2 came and beat the Lw.1 with stick on her right side chest, right side back and A3 beat LW.1 with hands on her chest and person. Immediately LW.2 to LW.4 intervened and rescued LW.1.

Basing on the report of LW.1, LW.10 ( Sri.G.V.Ramana Sub -Inspector of Jalumuru PS) registered the case in Cr.No. 95/2013

Under Sections 324, 323 r/w 34 of IPC and investigating into, examined the scene, recorded the statement of witnesses, and got prepared the rough sketch and taken photo graphs to the scene of offence and drafted the scene observation report and arrested the

A1 to A3 on 14-12-2013 at about 13.00 hours and forwarded them to the court for remand, after completion of the investigation

L.W10-Sri.G.V.Ramana, SI of police filed charge sheet against the

A1 to A3 .

3.The case was taken on file for the offences punishable

Under Sections 324, 323 r/w 34 of IPC against the A1 to A3.

4. On appearance of the accused, copies of documents are furnished to the accused as per section 207 of Cr.P.C.,

5.A.1 to A3 were examined Under Section 239 Cr.P.C and they denied the offence. Hence a charge Under sections 324, 323 r/w 34 IPC has been framed read over and explained to them in

Telugu Under Section 240(2) Cr.P.C for which they pleaded not guilty and claimed to be tried. Hence, the matter is posted for trial.

6.In order to prove its case, the prosecution got examined PWs.1 to PW.8 and got marked Exs.P.1 to Ex P.7 besides

MO.1 Bamboo sticks two in number.

3

7.After closure of the prosecution evidence, the A1 to A3 were examined Under Section 313 Cr.P.C., and explained about the incriminating material found against them, in the evidence of prosecution witnesses, for which the accused denied the evidence as false and reported no defence evidence.

8. Heard the arguments on both sides.

9.Now the point for determination is – “Whether the prosecution is proved the guilty of the accused for the offence with which they were charged and if so, whether the A1 to A3 were liable for punishment of the same?”

10. P O I N T:

To prove its case, though the prosecution has cited as many as 10 witnesses, Out of them PWs.1 to PW.8 were examined and got marked Exs.P.1 to Ex P.7 besides MO.1. Exs.P.1 is the report of Pw.1. Ex P.2 & Ex P.3 are the 161 Cr.P.C statements of PW.3,

PW.4. Ex P.4 is the scene observation report. Ex P.5 is the wound certificate of PW.1. Ex P.6 is the F.I.R., and Ex.P7 is the Rough

Sketch and MO.1 is the two number of bamboo sticks. Sri APP has given LW.8 (Bathula Raju). Police filed a memo along with the report of VRO stating that LW.3(Pasala Lakshmi) where abouts are not known. Hence the said memo is recorded and closed the evidence of LW.3.

11.To prove the case of the prosecution, the prosecution got examined PW.1 to PW.8. Out of them PW.1 is the Defacto- complainant. PW.2 is the no other than the Son of PW.1. PW.3,

PW.4 are the eye witnesses to the alleged incident. PW.5 is the husband of PW. 1 is also projected as a eye witness. P.W6 is the

Mediator for the Scene observation Report. PW.7 is the Medical officer and PW.8 is the Investigating Officer in this case.

12.In the present case PW.3, PW.4 who are projected as a eye witnesses in this case, they did not support the case of the 4 prosecution and they turned hostile, hence their evidence no way helpful to the case of the prosecution. There remains only the evidence of PW.1, PW.2, PW.5 to PW.8 for the consideration of the case of the prosecution. PW.1, PW.2, and PW.5 are the one family members, hence their evidence shall be scrutinized with a little bit more care and caution else any amount of doubt prejudice will be caused to the accused.

13.The PW.5 who is the husband of PW.1, had deposed in his evidence that on the date of the incident he was present inside of the house and after hearing the cries, he came out and noticed that PW.1 had a injury on her chest and further deposed that he did not witness who beat the PW.1. So his evidence shows that PW.1 having injury on her right chest.

14.As per version of the PW.1, she had deposed that the incident was occurred on 14.2.2013 at about 1.00 PM in between her house and A1 house and on the date of the incident when she asked the A1 to give mudara amount for which they refused to give said amount and A1 poked her with a stick on her right side of the chest, and further deposed that A2 beat her with a stick on her back and she received swollen injury. A3 also poked with his hands on her abdomen. And mean while PW.2, PW.5 came and rescued her.

15.PW.2 had deposed in his evidence that the incident was occurred at his house at about 1.00 PM., on 14.12.2013. And further deposed that on the date of the incident, when his mother (PW.1) raised a cries then he came out from the house and witnessed that

A1 and A2 beat with a sticks on her back side and A3 beat the PW.1 with his hands on the abdomen of the PW.1. Then he taken the

PW.1 to the Govt., hospital, Narasannapeta and PW.1 presented a Ex

P.1 report.

16.As seen from the evidence of PW.1 the incident was occurred on 14.02.2013 at about 1.00 PM, in between her house and

A1 house and whereas as per version of PW.2 that the incident was occurred on 14.12.2013 at about 1.00 PM., So there is a discrepancy in between the evidence of PW.1 & PW.2 with regard to the date of the incident. In the cross examination of the PW.2 he 5 stated that the incident was occurred in front of his house and where as PW.1 stated that the incident was occurred in between the her house and A1 house. And further PW.2 admitted in his cross examination that when her mother (PW.1) raised a cries after receipt of the injuries , then he came out from his house. So as per admission of the PW.2 that he came out from his house after the incident and he did not witness who beat the PW.1, but in his (PW.2) chief examination had deposed, as he witnessed the incident. So his evidence cannot be accepted in view of the admission in his cross examination. So the PW.2 and PW.5 are not the eye witnesses to the incident. There remains only the evidence of PW.1. As discussed supra PW.1 not stated the date of the offence and she admitted in her cross examination that the accused beat her with a

Bamboo stick, but PW.1 did not state in her chief examination that the accused beat her with a bamboo sticks, but PW.1 only stated that the A1 & A2 beat her with a sticks, it is also one of the doubtful circumstance. Even in Ex P.1 also not mentioned that A1 & A2 beat her with a bamboo sticks on her back. But in her (PW.1) cross examination stated that she got mentioned in Ex P.1 report that the

A1 & A2 beat her with a Bamboo sticks. And PW.1 further admitted in her cross examination that she was the accused person in counter case filed by the A3 in CC 06/2014.

17.PW. 6 is only the mediator for the scene observation report and he categorically deposed that police seized the two bamboo sticks (MO.1) from the scene under the cover of Ex P.4 report.

18.PW.8/IO stated that he referred the PW.1 to the Govt., hospital, Kotabommali for treatment. But PW.2 sated that after the incident he had taken the PW.1 to the Govt.,hospital, Narasannapeta and after discharged from the hospital PW.1 went to the police station and presented a Ex P.1 report. But where as PW.1 stated that after the incident she went to the Police station and presented

Ex P.1 report. So there is a contradictory version in between the evidence of PW.1 and PW.2. And more over PW.8/IO admitted in his cross examination that the wife of A1 got filed a criminal case against PW1, PW.5. So it indicates that there are a previous disputes in between the PW.1 and accused and the criminal cases 6 also pending in between them vide CC 06/2014 and more over

PW.8/IO stated in his cross examination that MO.1 Bamboo sticks were seized in front of the varandah of the Pw.1 under the cover of

Ex P.4 scene observation report in the presence of PW.6 and he pasted the identity slips duly signed by him, PW.6 on MO.1 at the time of seizure of the property. There is no whisper in the evidence of PW.6/Mediator that the PW.8/IO obtained his signature on the

MO.1 identity slips. And further PW.6 admitted in his cross examination that the PW.8/IO seized the MO.1 from the site of the

A1 under the cover of Ex P.4 mediator report. So there is a discrepancy in between the evidence of PW.6 & PW.8 in respect of the seizure of MO.1 from the scene of offence ie., whether it is from the site of the A1 or in front of the varandah of PW.1. It is also one of the doubtful circumstances. So the evidence of PW.1 suffers so many infirmities and did not inspires the confidence of the court.

19. So in view of the my above foregoing discussion the evidence of PW.1 is not coupled with the evidence of PW.2, PW.5 to

PW.8 and also the contents of EX P.1, Ex P.4 to Ex P.7 and the prosecution miserably failed to prove the case beyond the reasonable doubt for the offence punishbale under sections 324, 323 r/w 34 IPC. Therefore the A1 to A3 are entitled for acquittal.

20.In the result, the A1 to A3 are found not guilty

for the offences punishable Under Sections 324, 323, r/w 34

IPC which they are charged and accordingly they are

acquitted of the same Under Section 248 (1) Cr.P.C. The bail

bonds of accused shall stands cancelled after lapse of 6(six)

months period. MO.1 is the 2 no.s of bamboo sticks shall

destroyed after expiration appeal time.

Directly typed to my dictation to acting/steno on

my Personal Lap Tap corrected and pronounced by me, in

open Court on this the 15 th day of December, 2017.

Sd/-Shaik Meera Khasim saheb,

JUDICIA MAGISTRATE OF I CALSS,

KOTABOMMALI.

7

Appendix of evidence

Witnesses examined

For prosecution: For

Defence:

P.W.1: Pasala Gowramma/dt 01.08.2017 -NIL- PW.2: Pasala Suryanarayana/dt 0611.2017 P.W.3: Bora Laxmanarao/dt 21.11.2017 PW.4: Bora Mallesu/dt 21.11.2017 PW.5: Pasala Somayya/dt21.11.2017 P.W6: Bevara Ramarao/dt 28.11.2017 PW.7: Dr M.Vinod Kumar Medical Officer/dt 28.11.2017 PW.8/Sri GV Ramana SI of Police/dt 28.11.2017

Exhibits marked

For prosecution: For Defence:

Exs.P.1 is the report to police/dt.14-12.2013 -NIL- Ex P.2 is the 161 Cr.p.C statement of PW.2/15.12.2013 Ex P.3 is the 161 Cr.P.C statement of PW.3/15.12.2013 Ex P.4 is the scene observation report dt. 15-12-2013. Ex.P.5 is the wound Certificate of PW.1/dt 16.12.2013 Ex P.6 is the F.I.R./ dt.14.12.2013. Ex.P7 is the Rough Sketch, dt.15-12-2013.

Material Objects Marked

MO.1 is the 2 no.s of Bamboo sticks.

Sd/-shaik meera Khasim Saheb,

JUDICIA MAGISTRATE OF I CALSS,

KOTABOMMALI.

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS,

KOTABOMMALI

CALENDAR AND JUDGMENT

C.C.NO.07/2014

8

Date of offence:Prior to 14.12.2013 Date of Complaint or report: 14.12.2013 Date of apprehension of accused:18.12.2013 Date of release on bail:18.12.2013 Date of commencement of trial:01.08.2017 Date of close of trial:28.11.2017 Date of sentence or order:15.12.2017 Explanation of delay:Due to non production of witnesses by the prosecution. Name of the complaint:The State Represented by the Sub Inspector of Police,, Jalumuru P.S (Cr. NO. 95/2013) Name of the Father's Name Age Religion Village &Mandal Accused

1. Gollangi Bhaskara Rao, S/o. Late Rama Murthy, age 50 years,

2. Gollangi Chinnadu @ Chinna Rao, S/o. Late Rama Murthy, age 45 years.

3. Gollangi Laxminarayana, D/o. Chinnadu @ Chinnarao, age 19 years

All are Velama by caste, and residents of Yeneti Kothuru Village, Jalumuru Mandal.

Offence : Under Sections Under Sections 324, 323, r/w 34 IPC Finding: The accused A1 to A3 are found not guilty.

Sentence or Order:Accordingly the A1 to A3 are found not guilty for the offences punishable Under Sections 324, 323, r/w 34 IPC which they are charged and accordingly they are acquitted of the same Under Section 248 (1) Cr.P.C. The bail bonds of accused shall stands cancelled after lapse of 6(six) months period. MO.1 is the 2 no.s of bamboo sticks shall destroyed after expiration appeal time.

SD/-Shaik Meera Khasim

Saheb,

Judicial Magistrate of I Class,

Kotabommali.

Copy submitted to Hon'ble I Additional district & Sessions Judge, Srikakulam for perusal. Copy to the Superintendent of Police, Srikakulam.

9

1

IN THE COURT OF JUDICIAL MAGISTRATE OF I CLASS,

NARASANNAPETA

Present: Sri Shaik Meera Khasim Saheb

Judicial Magistrate of I Class, Kotabommali

(FAC) Narasannapeta

Thursday, this the 29 th day of March, 2018

C.C. No. 01/ 2018

Between:

State represented by the Sub-Inspector of Police, Narasannapeta PS …Complainant.

And:

1. Neelapu Suryanarayana @ Suri S/o. Ramulu, 34 years, SC Relli, Makivalasa (V), Narasannapea (Mandal), Srikakulam District.

2. Arugula Nookaraju S/o. Veeraswamy, 38 years, SC Relli, Makivalasa (vill)., Narasannapeta mandal, Srikakulam District.

…Accused.

This case is coming on 27-3-2018 for final hearing before me in the presence of Smt. A.P.P., for the complaint and of Sri G.Venkata Ramana, Legal Aid Counsel for the accused no.1 and of sri D.Rajkumar, Advocate for Accused no.2 and on hearing both sides and after having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

1.The State, represented by Sub-Inspector of Police, Narasannapeta Police Station has filed a charge sheet against the accused in Cr.No.3/2018 of Narasannapeta Police Station for the offence U/s.380, 411 IPC against the both the accused.

2.The brief case of the prosecution as unfolded in the charge sheet are as follows:-

On 12-1-2018, LW1 (Allamsetti Purushottam Rao) visited Sri Manikanta Hotel, Narasannapeta to have Tiffin where his apple company I- phone-6 was stolen away from his pocket when he was standing at parcel counter. On that LW1 observed the CC footage of the hotel and noticed that two male unknown culprits committed theft of his cell phone from his pocket. Basing on the written report of LW1, LW7 (B.Dhilleswararao, HC) registered this case and investigated into and during the course of the investigation he visited the scene of offence and prepared the rough sketch, examined the witnesses and 2 on 13-1-2018 he arrested the A1 and A2 at Devadi junction, Narasannapeta while A1 was in possession of stolen mobile phone and seized it in the presence of mediators /LWs 5, 6( Palli Satish, Goru Prasad) and seized the I-Phone-6 from the possession of the accused under the cover of mediator /confession report and sent the accused to court for remand and that after completion of investigation, LW8(G.Narayanaswamy, SI of police) filed charge sheet against the accused.

3. This court taken cognizance for the offence punishable U/s.411 IPC against both the accused.

4.On production of the accused 1 from the Jail and on appearance of A2, copies of case documents were furnished to them as per section 207 of Cr.P.C., and examined them u/s.239 of Cr.P.C., for which they denied the offence. Hence a charge u/s.411 IPC against the accused has been framed, read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried and the accused also claimed that they have no sufficient means to engage a counsel hence this Court provide a Legal Aid Counsel Sri G.V.Ramana to the accused no.1 and the matter posted for trial.

5.In order to prove its case, the prosecution got examined PWs.1 to 5 and got marked Exs.P.1 to P.5 besides M.O-1 i.e., Apple I-Phone.

6.After closure of the prosecution evidence, the accused were examined U/s.313 Cr.P.C., and explained about the incriminating material appearing against them, in the evidence of prosecution witnesses for which the accused denied the evidence of the prosecution as false and reported no defence evidence.

7.Heard the arguments on both sides.

8.Now the point for determination is - “Whether the prosecution has proved the guilty of the accused for the offence with which they were charged and if so, whether

the accused are liable for punishment of the same?”

9. P O I N T:

To prove its case, though the prosecution has cited as many as 8 witnesses out of them PW1 to 5 were examined and got marked Exs.P.1 to P.5, besides MO-1 and Ex.D1. Smt. A.P.P., has given up LWs.3, 4 and 8 (Pagoti Chinnarao, Tangudu Bhusana and G.Narayanaswamy, SI of police respectively). Ex.P1 is the report of the PW1, Ex.P2 is the CD of CC camera footage, Ex.P3 is the mediators report. Ex.P4 is the First information report, Ex.P5 is the Rough 3 sketch and MO-1 is the Apple I-Phone. Ex.D1 is found in the sec.161 CrPC statement of PW2.

10.To establish the case of the prosecution, the prosecution mainly relied upon the evidence of PWs.1 to 5. Out of them PWs.1 is the defacto complainant, PW2 is the circumstantial witness, PW3 and 4 are the mediators to speak about the seizure of the property and possession of the accused and PW5 is investigation officer in this case.

11.PW1 Allamsetti Purushottamrao had deposed in his evidence that on 12-1-2018 at about 10.40 am he went to the PW2 hotel at Narasannapeta and when he taken parcel from the counter he found missing his sell phone from his pocket. Then he informed to the Hotel Manager Korada Anandarao (PW2) and he shown the CC footage prints of the said hotel and he observed the same and found that A1 committed theft of his phone and given to A2 and the same was noticed in the CC footage prints and then he got CD from the said hotel and submitted the Ex.P2 CD along with his Ex.P1 report to police and MO-1 is the Apple I-Phone-6 marked through him.

12.PW2 K.Anantarao was categorically deposed that in the month of January, 2018, PW1 came to his hotel and he taken the parcel from the counter and by that time very crowd is there and when PW1 just went to his bike and informed to him that he found missing of the cell phone. Then he shown the CC footage prints and observed the same for committing the theft of his cell phone. Then PW1 got CD from his hotel.

13.PW3 and 4 who are the mediators had categorically deposed that on 13-1-2018 police arrested the A1 and 2 at Devadi village highway junction at about 11 am and seized the MO-1 from the possession of the accused under the cover of Ex.P3 mediator report.

14.PW5 B.Dhilleswararao the then Head Constable had deposed that on 12-1-2018 at about 8.30 pm while he was in police station, PW1 came to the police station and presented Ex.P1 report along with Ex.P2 CD and he registered the same and issued Ex.P4 First information report and during the course of investigation on 13-1-2018 at 11 am he arrested A1 and 2 at Devadi Junction and seized the MO-1 from the possession of the accused under the cover of Ex.P3 mediator report and sent the accused to court along with remand and LW8 laid charge sheet against the accused.

15.The above is the evidence adduced by the prosecution for the aforesaid offence. In the present case, PW1 is the defacto complainant is not the eye witness for the alleged theft but according to him he identified the A1 and 2 4 through CC footage prints and obtained the same from PW2 and handedover to the PW5.

16.In this case, the accused are charge sheeted for the offence punishable u/sec. 411 IPC. To prove the said section of law, the prosecution has to prove that the recovery of the property in the presence of mediators. To prove the seizure of the property the prosecution was examined, PW3, 4 in this case. PW3, 4 (mediators) had categorically deposed in their evidence that PW5 arrested A1 and 2 and seized MO-1 from the possession of accused under the cover of Ex.P3 mediator report in their presence.

17.The defence counsel cross examined the witnesses of PWs.1 to 5, but, no material points were elicited from the mouth of the witnesses to suit their defence except given suggestions to the witnesses that nothing was seized from the possession of the accused. Though PW1 stated that he identified the both the accused through the CC footage prints but on verification of the Ex.P2 CD , it was not clearly visible and there is no evidence putforth by the prosecution for identification of the accused by the PW1 and there is no direct witnesses to the alleged theft of MO-1 from the pocket of the PW1.

18.At this juncture the relevant provision u/s.114 Indian Evidence Act is reproduced below –

Sec.114:- Court may presume existence of certain facts –

The Court may presume the existence of any fact which it thinks likely to

have happened, regard being had to the common course of natural events,

human conduct and public and private business, in their relation to the facts

of the particular case.

Illustrations

The Court may presume:-

(a) That a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;

19.In the present case, PW.5 arrested the accused and seized the M.O-1 under the cover of Exs.P.3 mediator report. A perusal of Ex.P3 mediator report , the MO-1 was seized from the possession of the A1. There is no evidence adduced by the prosecution that A1 committed theft of MO-1 and handedover the same to the A2. Except the confession statement of the A1 and A2, a confession made before the police officer is inadvisable evidence as per under section 25 of Indian Evidence Act. So the prosecution failed to prove the factum that A1 committed theft of the same and handedover the MO-1 to A2 and as can be seen from the Ex.P3 mediator report, PW5 seized the MO-1 from the A1 only but not from the possession of the A2. The A1 not accounted the MO-1 and A1 not 5 claimed the property. The A1 did not adduced the evidence how MO-1 came into his possession and he failed to account for MO-1 from his possession. It would presume that goods are stolen goods as illustration of sec.114 of Indian Evidence Act. So a perusal of the entire evidence of PW1 to 5 and the evidence of PW5 is coupled with the evidence of PW3, 4 mediator and also the contents of Ex.P1 and 3 mediator report.

20.So, in view of my above foregoing discussion, I hold that the prosecution successfully proved the case beyond the reasonable doubt for the offence punishable u/s.411 IPC against the accused no.1 only and prosecution miserably failed to prove the case against the accused no.2. So consequently, A1 is convicted u/sec. 248(2) CrPC and A2 is liable to be acquitted.

21.In the result, the A1 is found guilty for the offence punishable u/s.411 IPC and they are convicted u/s.248(2) Cr.P.C and A2 is acquitted u/sec. 248(1) CrPC.

Typed to my dictation by the Personal Assistant, corrected and

pronounced by me, in open Court on this the 29th day of March, 2018.

Judicial Magistrate of I Class,

Kotabommali. (FAC) Narasannapeta

22.Heard about the quantum of sentence for which, the accused no.1 represented that he had a wife and children and they were depend upon his earnings and further reported that he is languishing in jail since more than two months and pray the court to take a lenient view.

23.In view of the above facts and circumstances of the case on hand and family back ground of the accused no.1 and considering the representation made by the accused 1, he was found guilty and A2 not found guilty for the offence punishable u/sec. 411 IPC and accordingly A1 is convicted U/s.248(2) Cr.P.C, and sentenced to undergo simple Imprisonment for a period of two months and the remand period if any,undergone by the accused no.1 shall be given set off u/s.428 of Cr.P.C and A2 is acquitted u/sec.248(1) CrPC for the offence punishable u/sec. 411 IPC and the bail bonds of A2 shall be cancelled after lapse of six months period. The MO-1 i.e., Apple I-Phone-6 is already given interim custody to PW.1 as per orders in CrlMP.275/18 dt.12-2-2018 and the said orders holds good and the same is made absolute after expiry of appeal time.

Typed to my dictation by the Personal Assistant, corrected and

pronounced by me, in open Court on this the 29th day of March, 2018.

6

Judicial Magistrate of I Class,

Kotabommali. (FAC) Narasannapeta

APPENDIX OF EVIDENCE

Witnesses examined

For prosecution: For Defence:

P.W.1: Sri A. PurushottamraoNone PW2: Sri K. Anandarao PW3: Sri Goru Prasad PW4: Sri Palli Sateesh PW5: Sri B. Dhilleswararao, HC

For prosecution:

Ex.P.1: Report of PW.1 dt. 12-1-2018 Ex.P2: CD of CC camera footage dt. Nil. Ex.P3: Mediators report dt. 13-1-18. Ex.P4: First information report dt.12-1-2018. Ex.P5: Rough sketch dt. 13-1-18.

For Defence:

Ex.D1 is the sec.161 CrPC statement dt.13-1-18.

Material Objects Marked

M.O.1 – Apple I-Phone 6.

Judicial Magistrate of I Class,

Kotabommali. (FAC) Narasannapeta 7

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS,

NARASANNAPETA

CALENDAR AND JUDGMENT

C.C.NO.01/2018

Date of offence:12-1-2018

Date of Complaint or report: 12-1-2018

Date of apprehension of accused:13-1-2018

Date of release on bail:A2 released on 24-1-2018

Date of commencement of trial:19-2-2018

Date of close of trial:19-3-2018

Date of sentence or order:29-3-2018

Explanation of delay:No delay.

Name of the complaint:State rep. by the Sub Inspector of Police, Narasannapeta P.S. Name of the AccusedFather's AgeReligionVillage & Name Mandal

1. Neelapu Suryanarayana @ Suri S/o. Ramulu, 34 years, SC Relli, Makivalasa (V), Narasannapea (Mandal), Srikakulam District.

2. Arugula Nookaraju S/o. Veeraswamy, 38 years, SC Relli, Makivalasa (vill)., Narasannapeta mandal, Srikakulam District.

Offence: u/s. 411 of IPC: Dishonestly receiving stolen property.

Finding: A1 is found guilty for the offence punishable u/s.411 IPC and they are convicted u/s.248(2) Cr.P.C and A2 is acquitted u/sec. 248(1) CrPC.

Sentence or Order: Accordingly A1 is convicted U/s. 248(2) Cr.P.C, and sentenced to undergo simple Imprisonment for a period of two months and the remand period if any,undergone by the accused no.1 shall be given set off u/s.428 of Cr.P.C and A2 is acquitted u/sec.248(1) CrPC for the offence punishable u/sec. 411 IPC and the bail bonds of A2 shall be cancelled after lapse of six months period. The MO-1 i.e., Apple I-Phone-6 is already given interim custody to PW.1 as per orders in CrlMP.275/18 dt.12-2-2018 and the said orders holds good and the same is made absolute after expiry of appeal time.

Judicial Magistrate of I Class

Kotabommali. (FAC) Narasannapeta

Copy submitted to Hon'ble I Additional Sessions Judge, Srikakulam for perusal.

Copy to the Superintendent of Police, Srikakulam.