Sri Shaik Mohammad Abutalib Parveez

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Judgment in C.C.No.837/2021, Dated :23.04.2025 On the fileof The Special Judicial Magistrate Of First Class (Mobile ) For Trial of cases under PCR Act at Eluru - cum -III Additional Civil Judge (Junior Division) :: Eluru

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST

CLASS ( MOBILE ) FOR TRIAL OF CASES UNDER PCR ACT AT ELURU-

CUM - III ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION) :: ELURU Present: Sri Shaik Mohammad Abutalib Parveez III Additional Civil Judge,( Junior Division), Eluru

Wednesday, this the 23rd day of April, 2025

Calendar Case No.837 of 2021

Sunkara Srinivasa Rao, S/o.Balaramaiah, Hindu, Male, age 47 years, Cultivation, R/o.D.No.25-13-17/1,R.V.Rama Rao Street, ….Complainant Narasimha Rao Peta, Eluru, West Godavari District.

Vs

Balam Venkata Lakshmi, W/o.Narayana Rao, Hindu, Female, age 43 years, Business, R/o.Flat No.401, Lakshmi Durga Apartments, Green City, Mini Bi-pass, Eluru, West Godavari

District. ......Accused

This case is coming on 09.04.2025 for final hearing before me in the presence of Sri E.Srinivasa babu Advocate for complainant and Sri A.Jagan

Mohan Rao, Advocate for accused, upon perusing the material on record and upon hearing the arguments on both sides having stood over for consideration till this day this court delivered the following:- // J U D G M E N T //

01. This is a complaint filed by the complainant against the accused for the offence punishable under Section 138 of Negotiable Instrument Act (hereinafter it is referred as N.I. Act.)

02. The case of the complainant is as follows:- The accused borrowed an amount Rs. 6,00,000/- (Rupees Six Lakhs Only) on 09.09.2019, on executing a promissory note in favor of the complainant on the even date for her business expenses purpose agreeing to repay the same along with a stipulated interest at 24% per annum on demand of the complainant or on demand of his order.

Digitally signed by

SHAIK MD

SHAIK MD

ABUTALIBABUTALIB

PARVEEZ

PARVEEZDate: 2025.04.23 15:57:43 +0530

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Judgment in C.C.No.837/2021, Dated :23.04.2025 On the fileof The Special Judicial Magistrate Of First Class (Mobile ) For Trial of cases under PCR Act at Eluru - cum -III Additional Civil Judge (Junior Division) :: Eluru Subsequently, after repeated demands made by the complainant, the accused has issued a cheque bearing No. 594892 for Rs. 6,50,000/- on 27.07.2021 towards part satisfaction of the above pronote debt on her bank, I.C.I.C.I Bank,

Eluru branch, and the same was presented by the complainant in his bank I.e.,

State Bank of India, Main Branch, N.R.Peta, Eluru, West Godavari District and on 28.07.2021 surprisingly it was returned by the accused banker with an endorsement that "FUNDS INSUFFICIENT” to honor the cheque along with a memo. Subsequently, having received the above said cheque along with the memo, the complainant has demanded the accused orally through phone for payment of the amount under the said cheque and the accused instead of making payment she has assured him of making payment and failed to comply with the demand made by the complainant. The accused knowing fully well that there was no such amount in her account she has deliberately issued spurious cheque and thereby he has not only committed the offence under section 138 NI

Act, but also under Section 420 I.P.C. The complainant further submits that, the complainant got issued a legal notice on 20.08.2021 through his counsel to the accused calling her to make payment on the dishonored cheque to the address where she is residing. The said notice was received by the accused on 23.08.2021 and on 11.09.2021 when the accused got issued reply notice with false and untenable contentions and thus the accused has failed in complying with the demand of the complainant. The complainant further submits that, the accused issued a cheque for Rs. 6,50,000/- knowing fully that there was no such amount. Further even after the information passed by the complainant about

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Date: 2025.04.23

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Judgment in C.C.No.837/2021, Dated :23.04.2025 On the fileof The Special Judicial Magistrate Of First Class (Mobile ) For Trial of cases under PCR Act at Eluru - cum -III Additional Civil Judge (Junior Division) :: Eluru the dishonor, the accused failed to react positively and failed to make payment on the dishonored cheque even after the issuance of legal notice as contemplated under the act. Thus the accused committed the offence punishable under section 138 N.I.Act and liable to be punished. The complainant further submits that, this complaint was filed as per the provisions of negotiable instruments Act. Hence, the accused is liable to be punished for the offence under section 138 r/w 142 of N.I.Act.

03. This case was taken on file against accused for the offences under

Section 138 r/w 142 of Negotiable Instrument Act 1881 as C.C No.837/2021.

04. On appearance of the accused, copies of the documents were furnished to her as contemplated under Section 207 of Criminal Procedure Code (herein after referred as Cr.P.C.). The accused was examined under Section 251 Cr.P.C., by explaining the substance of accusation under section 138 of N.I. Act made against her in Telugu, for which she denied the same and pleaded not guilty and claimed to be tried.

05. During the course of trial, on behalf of the complainant, the complainant himself was examined as PW.1 and got marked Ex.P1 to Ex.P6 and Ex.D1 on behalf of accused. Scribe of Ex.P1 is examined as PW.2.

06. After closure of the complainant’s side evidence, the accused was examined under Section 313 Cr.P.C., by explaining the incriminating material stood against her in the evidence of complainant, to which the accused denied

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ABUTALIBDate: PARVEEZ2025.04.23 15:57:57 +0530

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Judgment in C.C.No.837/2021, Dated :23.04.2025 On the fileof The Special Judicial Magistrate Of First Class (Mobile ) For Trial of cases under PCR Act at Eluru - cum -III Additional Civil Judge (Junior Division) :: Eluru and reported that, she has defence evidence and accused herself is examined as

DW.1 and Ex.D2 are marked on her behalf.

07. Heard arguments on both sides and perused the written arguments filed by the learned counsel for the accused.

08. Now the points for determination are:-

1) Whether the accused issued the Ex.P2 cheque in favour of complainant for discharging a legally enforceable debt or other liability?

2) Whether the complainant has complied with all the legal formalities as per the provisions of Section 138 r/w 142 of Negotiable Instruments Act?

3) Whether the complainant proved the case against the accused for the offence Punishable Under

Section 138 of Negotiable Instruments Act, 1881 beyond reasonable doubt?

09.Point No.1:- To prove the case of complainant, as mentioned above stated supra, the complainant got examined himself as PW.1 and got marked

Ex.P1 to Ex.P6 and Scribe of Ex.P1 is examined as PW.2 and Ex.D1 is marked on behalf the accused through PW.1. PW.1 in his evidence in chief-examination reiterated the complaint pleadings. In view of the mentioning of the complaint pleadings in the above paragraphs in brief, there is no need to extract the contents in the chief-examination affidavit of PW.1, as the said averments in the complaint and the contents in the chief-examination affidavit of PW.1 are almost one and the same.

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ABUTALIBABUTALIB PARVEEZ

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Judgment in C.C.No.837/2021, Dated :23.04.2025 On the fileof The Special Judicial Magistrate Of First Class (Mobile ) For Trial of cases under PCR Act at Eluru - cum -III Additional Civil Judge (Junior Division) :: Eluru PW.2/Scribe of Ex.P1/Chanapati Durga Rao, in his evidence deposed that, Accused borrowed an amount of Rs.6,00,000/- on 09.09.2019 from the complainant towards her business expenses purpose on executing a promissory note on the even date in favour of the complainant agreeing to repay the said amount with interest at 24% per annum whenever it was demanded by the complainant or by his order on demand. He further deposed that, at the time of the said transaction, he one Eedala Subba Rao and Maganti Seetha Ramprasad were present. The accused received the consideration in their presence at the house of the complainant. He scribed the promissory note dated 09.09.2019,

Eedala Subba Rao and Maganti Seetha Ramprasad attested the pronote as 1st and 2nd attestors and thus the entire transaction took place in their presence. As the cheque was bounced issued by the accused the complainant filed the above case.

To disprove the case of complainant, the accused herself is examined as DW.1 and documents Ex.D2 marked on her behalf and Ex.D1 is marked on behalf the accused through PW.1.

DW.1/ Balam Venkata Lakshmi, in her evidence in chief-examination affidavit deposed that, she never borrowed any amount of Rs. 6,00,000/- from the complainant and never issued any cheque in favour of the complainant. The complainant is unknown person to her and she never saw him at any time except before the Hon'ble Court. She further deposed that, she borrowed an amount of Rs.2,00,000/- from Eedala Subbarao and at the time of borrowing the amount, said Subbarao obtained four empty signed promissory notes and

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ABUTALIBPARVEEZ

Date: 2025.04.23

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15:58:10 +0530

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Judgment in C.C.No.837/2021, Dated :23.04.2025 On the fileof The Special Judicial Magistrate Of First Class (Mobile ) For Trial of cases under PCR Act at Eluru - cum -III Additional Civil Judge (Junior Division) :: Eluru four empty signed cheques drawn on I.C.I.C.I Bank and four empty signed cheques drawn on SBI from her. She strongly suspect that, taking advantage of the blank promissory notes and cheques available with him, Eedala Subbarao must have got filed this case through the complainant with false allegations. She further submit that, the complainant is a close associate of Eedala Subbarao and he is a proxy to him. The complainant has no capacity to lend such huge amount and in fact, she have no necessity to borrow such huge amount. She never borrowed any amount and never executed any promissory note in favour of the complainant and she has not issued any cheque in connection with the above alleged debt. No consideration is passed under the above said promissory note/Ex.P1. She further deposed that, the complainant filed O.S.No.371/2021 on the file of the IV Additional Civil Judge's Court (Junior Division), Eluru for recovery of the amount. The Hon'ble Court after a detailed trial, dismissed the suit. In the said judgment, the Hon'ble Court observed that, the complainant has no capacity to lend an amount of Rs.10,00,000/- to her husband. The complainant has not preferred any appeal against the dismissal order. The

Judgment and Decree may be marked as Ex D.1 on her behalf. Therefore, she pray that this Hon'ble Court may be pleased to dismiss the complaint with costs.

In this case, The complainant examined himself as PW.1 and also got marked Ex.P1 to Ex.P6. To discharge his initial burden the complainant filed the

Ex.P1 is the certified copy of promissory note executed by the accused in favour of complainant dated: 09.09.2019. Ex.P2 is the original cheque bearing

No.594892 issued by accused dated 27.07.2021. Ex.P3 is the original cheque

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MDABUTALIB

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Date: PARVEEZ2025.04.23 15:58:32 +0530

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Judgment in C.C.No.837/2021, Dated :23.04.2025 On the fileof The Special Judicial Magistrate Of First Class (Mobile ) For Trial of cases under PCR Act at Eluru - cum -III Additional Civil Judge (Junior Division) :: Eluru return memo issued by the bank dated: 28.07.2021, Ex.P4 is the office copy of

Legal Notice got issued by the complainant to the accused dated:20.08.2021.

Ex.P5 is the original postal acknowledgment dated:23.08.2021. Ex.P6 original registered reply notice dated:11.09.2021. Hence, the complainant has fulfilled all the requirements and essential ingredients to prove the offence against the accused. In this case, In the cross-examination of PW.1 and PW.2 by learned counsel for accused at length, he could not be elicited no useful material to disprove the issuance of Ex.P2. In such case presumption under section 118 of

N.I. Act comes in favour of complainant. Then the burden shifts on the accused to disprove the issuance of Ex.P2 by her.

In this case, On perusal of evidence of DW.1, the main contention of the accused is that, She never borrowed any amount of Rs. 6,00,000/- from the complainant and never issued any cheque in favour of the complainant and complainant is unknown person to her and she never saw him at any time except before the Hon'ble Court. The another main contention of the accused is that, she borrowed an amount of Rs.2,00,000/- from Eedala Subbarao and at the time of borrowing the amount, said Subbarao obtained four empty signed promissory notes and four empty signed cheques drawn on I.C.I.C.I Bank and four empty signed cheques drawn on SBI from her ans she strongly suspect that taking advantage of the blank promissory notes and cheques available with him,

Eedala Subbarao must have got filed this case through the complainant with false allegations. The another main contention of the accused is that, the complainant is a close associate of Eedala Subbarao and he is a proxy to him

Digitally signed by

SHAIK MD

SHAIK MD

ABUTALIBABUTALIB

PARVEEZ

PARVEEZDate: 2025.04.23 15:58:40 +0530

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Judgment in C.C.No.837/2021, Dated :23.04.2025 On the fileof The Special Judicial Magistrate Of First Class (Mobile ) For Trial of cases under PCR Act at Eluru - cum -III Additional Civil Judge (Junior Division) :: Eluru and the complainant has no capacity to lend such huge amount and in fact, she have no necessity to borrow such huge amount and she never borrowed any amount and never executed any promissory note in favour of the complainant and she has not issued any cheque in connection with the above alleged debt and No consideration is passed under the above said promissory note/Ex.P1.

The another main contention of the accused is that, the complainant filed

O.S.No.371/2021 on the file of the IV Additional Civil Judge's Court (Junior

Division), Eluru for recovery of the amount and the Hon'ble Court after a detailed trial, dismissed the suit and in the said judgment, the Hon'ble Court observed that the complainant has no capacity to lend an amount of

Rs.10,00,000/- to her husband and the complainant has not preferred any appeal against the dismissal order. In order to prove the same, the accused is mainly relied on her oral evidence as DW.1 and Ex.D1 and Ex.D2 documents.

Ex.D1 is Relevant Portion in certified copy of deposition in O.S.No.371/2021 in the file of IV Additional Junior Civil Judge, Eluru and Ex.D2 is Certified copy of

Judgment and Decree in O.S.No.371/2021 on the file of IV Additional Junior

Civil Judge’s Court,Eluru. In this case, On perusal of evidence of DW.1, DW.1 in

his evidence in cross-examination categorically admitted that, “She cannot say cheque numbers which was given by her to the said Eedala Subba Rao at the time of transaction in between her and the said Eedala Subba Rao and she did not file any

documentary evidence before this Honourable Court in order to show that herself

and the said Eedala Subba Rao have financial transactions”. DW.1 in his evidence further admitted that, “She did not file any criminal complaint against the said

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Judgment in C.C.No.837/2021, Dated :23.04.2025 On the fileof The Special Judicial Magistrate Of First Class (Mobile ) For Trial of cases under PCR Act at Eluru - cum -III Additional Civil Judge (Junior Division) :: Eluru Eedala Subba Rao after receiving the Ex.P4 legal notice from the complainant till

today and the complainant filed Civil Suit against her and The O.S.No.371/2021

mentioned in her chief examination affidavit is pertaining to her husband”.DW.1 in his evidence further admitted that“She did not give any instructions to the bank authorities by stating that she given four empty signed promissory notes and four

empty signed cheques to the Eedala Subba Rao, if any one present the cheque the

same was not to honour as she given the said cheques to the said Eedala Subba Rao’.

DW.1 in his evidence further admitted that, “Previously her husband did the lemon business at present her husband doing the daily wage labour and herself and her husband are together living one roof”. In this case, If really, the complainant fabricated Ex.P1, why the accused did not give any police complaint or any legal notice to complainant and attestors and scribe of Ex.P1, the said Eedala Subba

Rao after filing of this case against her. In this case, the contention of the accused is that, she borrowed an amount of Rs.2,00,000/- from Eedala

Subbarao and at the time of borrowing the amount, said Subbarao obtained four empty signed promissory notes and four empty signed cheques drawn on

I.C.I.C.I Bank and four empty signed cheques drawn on SBI from her. In this case, the accused not filed any documentary evidence in order to show that,

She borrowed an amount of Rs. 2,00,000/- from Eedala Subbarao and at the time of borrowing the amount, said Subbarao obtained four empty signed promissory notes and four empty signed cheques. In this case, the accused not filed any cogent evidence in order to show that, the complainant is a close associate of Eedala Subbarao and he is a proxy to him. In this case, the another

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SHAIK MD

SHAIK MD

ABUTALIBABUTALIB

PARVEEZ

PARVEEZ

Date: 2025.04.23

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Judgment in C.C.No.837/2021, Dated :23.04.2025 On the fileof The Special Judicial Magistrate Of First Class (Mobile ) For Trial of cases under PCR Act at Eluru - cum -III Additional Civil Judge (Junior Division) :: Eluru main contention of the accused is that, the complainant did not have financial capacity to lend the amount to the accused. In order to prove the same, the accused mainly relied on Ex.D1 & Ex.D2 documents I.e Ex.D1 is Relevant

Portion in certified copy of deposition in O.S.No.371/2021 in the file of IV

Additional Junior Civil Judge, Eluru and Ex.D2 is Certified copy of Judgment

and Decree in O.S.No.371/2021 on the file of IV Additional Junior Civil Judge’s

Court,Eluru. In this case, this court observed that, Ex.D1 and Ex.D2 are pertaining to the cases filed by the complainant against the husband of the accused, but not pertaining to this case. On perusal of the evidence of PW.1,

PW.1 in his evidence categorically deposed that, His annual income is

Rs.6,00,000/- and he let out his Palmoil garden of Ac.5.00 cents of land to Kasaneni

Suresh and Kasanneni Subrahmanyam and earning for Rs. 4,50,000/- per year and

He also have Ac.10.00 cents agricultural land at Karnataka and he let out the same his maternal uncle and he is earning for Rs.3,00,000/- per year from the land at

Karnataka and he can produce proof to show that his mother having Ac.10.00 cents of landed property at Karnataka. On perusal of evidence of PW.2, PW.2 in his evidence categorically deposed that, The transaction of Ex.P1 took place at about 10.15 A.M. to 10.30 A.M and at the time of transaction of Ex.P1, complainant, Accused, husband of the accused, 1st attestor of Ex.P1/Edala

Subbarao and 2nd attestor of Ex.P1 and himself were present and In Ex.P1 accused, 1st attestor of Ex.P1, 2nd attestor of Ex.P1, himself were signed on it. In this case, On perusal of evidence of PW.1 & PW.2 are corroborated to each other on material aspects.In this case, the above of above admissions of

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Judgment in C.C.No.837/2021, Dated :23.04.2025 On the fileof The Special Judicial Magistrate Of First Class (Mobile ) For Trial of cases under PCR Act at Eluru - cum -III Additional Civil Judge (Junior Division) :: Eluru DW.1/accused clearly shows that, the contentions of the accused mentioned above stated supra are totally false. In this case, the evidence of PW.1 and PW.2 corroborated with contents of Ex.P1 to Ex.P6 in all material aspects. If really the complainant is fabricated the pronote and cheque with the help of the attestors and scribe of Ex.P1, why the accused is kept silent without giving any police complaint against the complainant and attestors and scribe of Ex.P1. In this case, the evidences of PW.1 & PW.2 corroborated with contents of Ex.P1 to

Ex.P6 in all material aspects. Hence, the contentions of the accused mentioned above stated supra are totally false. In this case, On perusal of above admissions of DW.1, it is clearly shows that, in order to evade the debt due under Ex.P1 the accused has taken different false pleas. In this case, the accused admitted that the signatures contained in Ex.P1 and Ex.P2 are belongs to her. At this juncture,

This court gone through the decision of Hon'ble Supreme court of India in Bir

Singh Vs Mukesh Kumar in CRIMINAL APPEAL NOS.230-231 OF 2019(@

SLP(CRL) NOS. 9334-35 OF 2018), dated: 20.02.2019, wherein the Hon'ble

Lordships held that;

36. The proposition of law which emerges from the judgments referred to above is that the onus to rebut the presumption under Section 139 that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post dated does not absolve the drawer of a cheque of the penal consequences of Section 138 of the Negotiable Instruments Act.

37. 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.

38. If a signed blank cheque is voluntarily presented to a payee, towards some

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Judgment in C.C.No.837/2021, Dated :23.04.2025 On the fileof The Special Judicial Magistrate Of First Class (Mobile ) For Trial of cases under PCR Act at Eluru - cum -III Additional Civil Judge (Junior Division) :: Eluru payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.

39. It is not the case of the respondent-accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent-accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not dis entitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative.

40. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.

41. The fact that the appellant-complainant might have been an Income Tax practitioner conversant with knowledge of law does not make any difference to the law relating to the dishonour of a cheque. The fact that the loan may not have been advanced by a cheque or demand draft or a receipt might not have been obtained would make no difference. In this context, it would, perhaps, not be out of context to note that the fact that the respondent-accused should have given or signed blank cheque to the appellant complainant, as claimed by the respondent- accused, shows that initially there was mutual trust and faith between them.

42. In the absence of any finding that the cheque in question was not signed by the respondent-accused or not voluntarily made over to the payee and in the absence of any evidence with regard to the circumstances in which a blank signed cheque had been given to the appellant-complainant, it may reasonably be presumed that the cheque was filled in by the appellant-complainant being the payee in the presence of the respondent-accused being the drawer, at his request and/or with his acquiescence. The subsequent filling in of an unfilled signed cheque is not an alteration. There was no change in the amount of the cheque, its date or the name of the payee. The High Court ought not to have acquitted the respondent-accused of the charge under Section 138 of the Negotiable Instruments Act.

On perusal the above decision stated supra, If a signed blank cheque are voluntarily presented to a payee, towards some payment, the payee may fill up the amounts and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some

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Date: 2025.04.23

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Judgment in C.C.No.837/2021, Dated :23.04.2025 On the fileof The Special Judicial Magistrate Of First Class (Mobile ) For Trial of cases under PCR Act at Eluru - cum -III Additional Civil Judge (Junior Division) :: Eluru payment, would attract presumption under section 139 of the Negotiable

Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. In this case accused did not place any cogent evidence to show that, the Ex.P2 did not issue for legally enforceable debt and In the absence of any cogent evidence, the contentions of accused mentioned above stated supra are not tenable. The accused had to prove in the trial, by leading cogent evidence that there was no debt or liability. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. On perusal of above decision Hon'ble

Apex Court, this Court observed that, the facts as referred above are applicable to the present case on hand. In this case, the contentions of the accused in above aspects as stated above supra are not tenable and with due respect to the decisions relied the learned counsel for the accused mentioned in his arguments,

I am of the considered opinion that, the facts and circumstances of decisions relied by learned counsel for the accused are not applicable to present case on hand. In these facts and circumstances of the case, I am of the opinion that, the accused has taken a formal defence of denying her issuance of Ex.P2. Taking into consideration of Exs.P1 to Ex.P6 and the material on record, I am of the opinion that, the complainant proved that, the accused issued Ex.P2 to the complainant for discharge of payment of a debt owned by her under Ex.P1. In this case, In cross-examination of PW.1 and PW.2, nothing is elicited to prove the contentions of accused. As discussed above, the complainant by examining

PW.1 and PW.2 proved the issuance of Ex.P2 by the accused. In view of

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Judgment in C.C.No.837/2021, Dated :23.04.2025 On the fileof The Special Judicial Magistrate Of First Class (Mobile ) For Trial of cases under PCR Act at Eluru - cum -III Additional Civil Judge (Junior Division) :: Eluru issuance of Ex.P2, it is established that the accused fell due amount to the complainant. In these facts and circumstances of the case, I am of the opinion that, the accused has taken a formal defence of denying her issuance of Ex.P2.

Taking into consideration of Ex.P1 to Ex.P6 and the material on record, I am of the opinion that the complainant proved that the accused issued Ex.P2 to the complainant for discharge of payment of a debt owned by her under Ex.P1. As per Ex.P1 to Ex.P6, it is established that the accused borrowed an amount of

Rs.6,00,000/- from the complainant for the purpose of her business expenses on the even date executed Ex.P1 promissory note and in order to discharge the same, Ex.P2 cheque issued by accused to the complainant dated 27.07.2021. On perusal of material on record, it clearly reveals that, the accused did not denied the money transactions in between complainant and accused, the accused did not deny the signatures contained in Ex.P1 and Ex.P2. It clearly reveals that, the accused issued Ex.P2 to complainant for due under legal enforceable debt under

Ex.P1. This court further observed that, once issuance of cheque I.e Ex.P2 admitted by the accused, burden always shifts to accused to prove Ex.P2 did not issue by her for legally enforceable debt. On perusal of the above admissions of

DW.1 clearly shows that, the contentions of the accused mentioned above stated supra are totally false. This court further observed that, though the accused took the above pleas as mentioned supra, nothing is adduced evidence to prove her contentions. As discussed above, The complainant examined himself as PW.1 and scribe of Ex.P1 as PW.2 proved that the execution of Ex.P1 by the accused in favour of the complainant and also the issuance of Ex.P2 by the accused. In

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15:59:38 +0530

15

Judgment in C.C.No.837/2021, Dated :23.04.2025 On the fileof The Special Judicial Magistrate Of First Class (Mobile ) For Trial of cases under PCR Act at Eluru - cum -III Additional Civil Judge (Junior Division) :: Eluru view of issuance of Ex.P2 by accused, it is established that, the accused fell due amount to the complainant. In these facts and circumstances of the case, Taking into consideration of Ex.P1 to Ex.P6 and the material on record, I am of the considered opinion that, the complainant proved that, the accused issued Ex.P2 to the complainant for discharge of debt due under promissory note, dated 09.09.2019 I.e Ex.P1. In view of above discussion and in the facts and circumstances of the case presumption under section 138 of N.I. Act comes in favour of the complainant. The burden is on the accused to rebut the said presumption, but accused failed to rebut presumption favour in complainant.

The point is answered accordingly in favour of the complainant and against the accused.

10.Point No.2:- When once it is proved that, the accused issued Ex.P2 cheque in favour of complainant to discharge legally enforceable debt due under Promissory note dated 09.09.2019 I.e Ex.P1, the next question that has to be decided is whether the complainant has followed all the legal formalities

before filing of this complaint and whether this complaint is within the

provisions laid down under Section 138 r/w 142 of N.I. Act.

On perusal of material available on record, Ex.P2 cheque was presented in the Bank of the complainant i.e., State Bank of India, Main Branch, N.R.Peta,

Eluru, West Godavari District and the same was returned by the State Bank of

India, Main Branch, N.R.Peta, Eluru, West Godavari District on 28.07.2021 with an endorsement “Insufficient Funds” as per Ex.P3. The complainant got issued legal notice Ex.P4 through Registered Post on 20.08.2021 to the accused and

Digitally signed by SHAIK MD

SHAIK MD

ABUTALIB

ABUTALIBPARVEEZ

PARVEEZDate: 2025.04.23 15:59:51 +0530

16

Judgment in C.C.No.837/2021, Dated :23.04.2025 On the fileof The Special Judicial Magistrate Of First Class (Mobile ) For Trial of cases under PCR Act at Eluru - cum -III Additional Civil Judge (Junior Division) :: Eluru gave reply notice and the same was marked as per Ex.P6. This complaint was filed by the complainant in the court on 29.09.2021. Considering the dates mentioned above and the material on record, I am of the opinion that the complainant has followed all the legal formalities as contemplated under the provisions of Section 138 r/w 142 of N.I.Act. This point is answered accordingly in favour of complainant and against the accused.

11. POINT NO.3:- In view of my discussion on point Nos.1 and 2 and in the facts and circumstances of the case, I am of the considered opinion that, the complainant has proved his case against the accused for the offence under section 138 of Negotiable Instruments Act, 1881 beyond reasonable doubt. This point is answered accordingly in favour of the complainant and against the accused.

12. In the result, the accused is found guilty for the offence punishable

Under Section 138 of Negotiable Instruments Act, 1881 and she is convicted

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

Dictated to Stenographer Grade-III, typed by her directly on computer

system, corrected and pronounced by me in the open court this the 23rd day of April, 2025.SHAIK MD Digitally signed by

SHAIK MD ABUTALIB

ABUTALIBPARVEEZ

PARVEEZDate: 2025.04.23 16:00:00 +0530 Special Judicial Magistrate of First Class (Mobile) For Trial of cases under PCR Act-cum- III Additional Civil Judge (Junior Division), Eluru.

// Appendix of evidence // Witness examined

For Complainant

PW.1Sunkara Srinivas Rao PW.2Chanapati Durga Rao

For Accused:-

DW.1Balam Venkata Lakshmi

SHAIK MD

Digitally signed by

SHAIK MD

ABUTALIB

ABUTALIB PARVEEZ

PARVEEZDate: 2025.04.23 16:00:06 +0530

17

Judgment in C.C.No.837/2021, Dated :23.04.2025 On the fileof The Special Judicial Magistrate Of First Class (Mobile ) For Trial of cases under PCR Act at Eluru - cum -III Additional Civil Judge (Junior Division) :: Eluru

Exhibits marked for Complainant

Ex.P1Certified copy of promissory note executed by the accused in favour of Complainant dated 09.09.2019 Ex.P2Original Cheque bearing No.594892 issued by the accused dated 27.07.2021 Ex.P3Original return memo with endorsement dated 28.07.2021 Ex.P4Office copy of Legal Notice got issued by the complainant to the accused dated 20.08.2021. Ex.P5Original Postal acknowledgment dated 23.08.2021 Ex.P6Original registered reply notice dated 11.09.2021

Exhibits marked for Accused

Ex.D1Relevant Portion if certified copy of deposition in O.S.No.371/2021 in the file of IV Additional Junior Civil Judge, Eluru. Ex.D2Certified copy of Judgment and Decree in O.S.No.371/2021 on the file of IV Additional Junior Civil Judge’s Court,Eluru.

Material objects marked Nil SHAIK MDDigitally signed by

SHAIK MD

ABUTALIB

ABUTALIB PARVEEZ

PARVEEZDate: 2025.04.23 16:00:14 +0530 Special Judicial Magistrate of First Class (Mobile) For Trial of cases under PCR Act-cum- III Additional Civil Judge (Junior Division), Eluru.

//1//

IN THE COURT OF IV ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION)-

CUM-SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS (EXCISE):: ELURU.

Present: Sri Sk. Mohammad Abutalib Parveez

III Additional Civil Judge (Junior Division)-Cum- Special Judicial Magistrate of First Class (Mobile), Eluru. FAC/IV Additional Civil Judge (Junior Division)-Cum- Special Judicial Magistrate of First Class (Excise), Eluru.

Friday, the 15th day of November, 2024

C.C.No.579 of 2024

Between:-

State: Sub Inspector of Police, Eluru III Town Police Station Crime No.488/2023

...Complainant

And

1) Kasireddy Sai Gopal @ Sai Baba, s/o Srinivas Rao, 34 years, r/o Indira colony, Sanivarapupeta, Eluru.

2) Nethala Rama Krishna, s/o Naga Raju, 37 years, r/o Near Sai Baba temple, Duggirala village, Pedavegi Mandal.

...Accused

This case is coming before me on 14.11.2024 for final hearing in the presence of Learned Assistant Public Prosecutor for State and of Smt.A.Ganga Bhavani, Counsel for A1 and A2, upon hearing both sides and matter having stood upon for consideration till this day, this court delivered the following:

J U D G M E N T

01.The Sub Inspector of Police, Eluru III Town Police Station filed a charge sheet in Cr.No.488/2023 for the offence punishable U/Sec.34(a) of

A.P. Excise Act and Sec.185A of MV Act against A1 and A2.

02.The case of the prosecution in brief is that on 21.10.2023 at about 9.15 PM, on receipt of credible information, PW.2 along with his staff i.e.

PW.1, LW.2/HG, LW.3/HC rushed to near green city, mini bypass road,

Eluru and found A1 and A2 in possession of 1) Daaru house brandy 180 ml bottles-3, 2) Ocean blue premium whisky 180 ml bottles-2, 3) AC black //2// classic whisky 180 ml bottles-3, total 8 bottles. On suspicion, they questioned A1 and A2 about the source of the said liquor bottles. In turn,

A1 and A2 voluntarily confessed that they purchased the liquor bottles from various shops with an intention to sell the same at higher rates and failed to produce any valid license to possess the said liquor bottles.

Subsequently, PW.2 arrested A1 and A2 and brought them along with occurrence report and seized liquor bottles to the police station. On the strength of occurrence report, PW.2 registered the same as a case in

Cr.No.488/2023 u/Sec.34(a) of AP Excise Act and Sec.185A of MV Act and investigated into it. During the course of investigation, PW.2 visited the scene of offence, observed the same and prepared rough sketch and examined all the charge sheeted witnesses and recorded their statements. PW.2 served Sec.41-A Cr.P.C. notice to A1 and A2. LW.5/SI of Police took up further investigation and sent the samples to chemical examiner for analysis. After receipt of chemical analysis report and destruction proceedings, he filed the charge sheet against A1 and A2 for the offence U/Sec.34(a) of AP Excise Act and Sec.185A of MV Act.

03.On receipt of charge sheet, this case was taken on file and cognizance was taken against A1 and A2 for the offence U/Sec.34(a) AP

Excise (Amendment) Act, 2023 and Sec.185A of MV Act.

04.On appearance of A1 and A2, copies of case documents were furnished to them as contemplated U/Sec.207 of Criminal Procedure

Code, 1973 (herein after referred as 'Cr.P.C.' for the sake of brevity).

05.When examined U/Sec.239 of Cr.P.C., A1 and A2 denied the allegations leveled against them. After perusing the entire material on record and on hearing both sides, charges had been framed against them

U/Sec.34(a) of A.P Excise (Amendment) Act, 2023 and Sec.185A of MV //3//

Act which were read over and explained to them in Telugu, for which, they pleaded not guilty and claimed to be tried.

06.During the course of trial, on behalf of the prosecution, PW.1 and

PW.2were examined and Ex.P1 to Ex.P5 and MO.1 to MO.3 were marked. The learned APP given up the evidence of LW.2/B.Mani Mojesh-

HG, LW.3/N.N.Saibabu-HC and LW.5/A.Mani Kumar-SI of Police.

07.On closure of evidence let in by the prosecution, A1 and A2 were examined U/Sec.313 of Cr.P.C., with regard to the incriminating material available against them, for which, they denied the same and reported no defence evidence.

08.Heard both sides.

a)The learned Assistant Public Prosecutor argued that the evidence of PW.1 and PW.2 coupled with Ex.P1 to Ex.P5 and MO.1 to

MO.3 clearly discloses that the contraband was seized from the possession of A1 and A2 is Indian made liquor and they have no valid license to sell the same in open market for profit. As such, A1 and A2 are liable for punishment for the above section.

b)Per contra the counsel for A1 and A2 argued that no property was seized from the possession of A1 and A2 as alleged by the prosecution. Admittedly, the scene of offence where the contraband alleged to have been seized from the possession of A1 and A2 was situated in a busy locality. The investigating officer did not make any effort to secure any independent mediators at the scene of offence. As seen from occurrence report that it was scribed at the scene of offence. Some other police also accompanied PW.2 to the scene of offence as per the contents in it. But occurrence report did not contain the signatures of anybody. The occurrence report did not contain the batch numbers of the seized contraband. As such, it clearly denotes that PW.2 did not visit the //4// scene of offence and nothing was seized from the possession of A1 and

A2 as stated by him and entire proceedings were prepared in the police station and foisted this false case against A1 and A2. The prosecution failed to establish seizure and preparation of occurrence report at the scene of offence. As such, A1 and A2 are entitled for benefit of doubt and pleaded to acquit them.

09.After hearing to both side arguments and upon considering the entire material on record, now the points for determination before the

Court are:

“ 1. Whether the police seized the entire contraband from the

possession of A1 and A2?”

“2. Whether the Police gathered any evidence with regard to sale

of liquor bottles by A1 and A2?”

“3. Whether the prosecution is able to prove the guilt of A1 and

A2 beyond all reasonable doubts for the offence U/Sec.34(a) of

A.P. Excise (Amendment) Act, 2023 and Sec.185A of MV Act?”

POINT No.1:

10.In order to prove the case of prosecution and to establish the seizure of liquor bottles from the possession of A1 and A2, the prosecution got examined PW.1 and PW.2 and got marked the documents as Ex.P1 to Ex.P5 and MO.1 to MO.3. PW.1 is the Constable who accompanied along with PW.2. PW.2 is the investigating officer who rushed to the scene of offence, apprehended the accused and prepared the occurrence report.

11.PW.1 and PW.2 who are the Constable and investigating officer deposed in their evidence that “on 21.10.2023 at about 9.15 PM, on receipt of credible information, they were rushed to near green city, mini bypass road, Eluru and found A1 and A2 suspiciously by consuming alcohol in possession of liquor bottles trying to skulk away from that //5// place. On suspicion, PW.2 detained A1 and A2 and interrogated them.

On interrogation, A1 and A2 voluntarily confessed their identity particulars. Later PW.2 searched the bag which was in the possession of accused and found 1) Daaru house brandy 180 ml bottles-3, 2) Ocean blue premium whisky 180 ml bottles-2, 3) AC black classic whisky 180 ml bottles-3. Then PW.2 arrested A1 and A2 and seized the entire contraband from their possession under the cover of Ex.P1 occurrence report. PW.2 also drew samples from the seized contraband. Then PW.2 brought A1 and A2 and seized contraband to the police station. Basing on the strength of occurrence report, PW.2 registered the same as a case in

Cr.No.488/2023, U/Sec.34(a) AP Excise (Amendment) Act and forwarded the original FIR Ex.P2 to the Court and copies to all concerned. During the course of further investigation, PW.2 visited the scene of offence, prepared Ex.P3 rough sketch and examined all the charge sheeted witnesses and recorded their statements. Later LW.5/SI of Police took up further investigation and sent the samples to the chemical examiner for the purpose of analysis. After receipt of Ex.P4 analysis report and Ex.P5 destruction proceedings, LW.5/SI laid charge sheet against the accused.”

12.Before going into the merits in the case of prosecution, it is pertinent to mention the important provisions basing on which the entire case rests.

SECTION 34 of AP Excise Act: Penalties for illegal import etc.

Whoever, in contravention of this Act or of any rule, notification or order made, issued or passed thereunder or of any license or permit granted or issued under this Act,_ (a) imports, exports, transports, manufactures, collects or possesses or sells any intoxicant;

SECTION 55 of AP Excise Act : Power to search without warrant

Whenever the Commissioner or a Collector or any police officer not below the rank of an officer-in-charge of a police station or any Prohibition and Excise Officer not below the //6// rank of an Excise Sub-Inspector has reason to believe that an offence under Section 34, Section 35, Section 36, Section 37 or Section 37-A has been, is being or is likely to be, committed and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may after recording the grounds of his belief,_ (a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act; and

(b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid.

Section 100(4) in The Code Of Criminal Procedure, 1973

Before making a search under this Chapter, the officer or

other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

The above referred provisions clearly discloses that if any police officer wants to seize any articles from the possession of suspected person, he must follow the procedure as contemplated under Sec.100(4) of Cr.P.C. If he fails to secure any independent mediators he must prepare a report as per Sec.55 of AP Excise Act and proceed with the preparation of Special Report.

13.Coming to the present case on hand, the case of prosecution is that on receipt of credible information, PW.2 along with his staff rushed to near green city, mini bypass road, Eluru and found A1 and A2 are in possession of bag containing 1) Daaru house brandy 180 ml bottles-3, 2)

Ocean blue premium whisky 180 ml bottles-2, 3) AC black classic whisky 180 ml bottles-3. During the course of interrogation, A1 and A2 voluntarily confessed before them that they did not possess any valid license and //7// the said liquor bottles were purchased by them for the purpose of selling the same in open market to gain profit illegally. When such is the case the

Police are at liberty to intercept the said person by following proper procedure. As per the analysis report marked under Ex.P4, the contraband seized from the possession of A1 and A2 is an Indian Made

Liquor. Ex.P4, the analysis report also concur with the same. As per the quantity seized from the possession of A1 and A2, it is not a permissive one as per orders in GOMs.No.310 Revenue (Excise) Department, dt.26.10.2020. As such the police has every authority to question the illegal possession of liquor bottles by A1 and A2 as it is not a permissive quantity. The only question remained before the court is whether the said liquor bottles are in possession of A1 and A2 for the purpose of selling the same in open market. It is an admitted fact that A1 and A2 didn’t possess any valid license to sell the liquor bottles to third parties in open market for gain.

14.Now, the clinching issue before the court is whether the said contraband was seized from the possession of A1 and A2 by following the proper procedure or not. For which the Court has to verify entire prosecution evidence available before this Court. The Court has to evaluate the evidence of PW.1 and PW.2 to come to a proper conclusion with regard to the seizure of MO.1 to MO.3 under the cover of occurrence report.

15.As per the case of prosecution, on receipt of credible information,

PW.2 along with his staff rushed to near Green city, mini bypass road,

Eluru and seized MO.1 to MO.3 from the possession of A1 and A2 under a cover of occurrence report. As per the averments in occurrence report no one came forward to act as mediator and for that reason only PW.2 forced to draft occurrence report. But as seen from it he did not make any //8// effort to secure any independent mediators in that locality. It is an admitted fact that some other police personnel also accompanied PW.2 to the scene of offence. But, PW.2 did not make any effort through any of the police personnel to make any effort to secure any person in that locality. Further it is an admitted fact that the scene of offence was situated in a busy locality. But PW.2 did not move his little figure to secure any independent mediator in that locality. The rough sketch prepared under Ex.P3 clearly indicates with regard to the existence of residential houses near to the scene of offence. But he did not examine any of inmates shown in the rough sketch to establish his visit to the scene of offence. In those circumstances, it cannot be said that Ex.P3 was prepared at the scene of offence. During the course of cross examination, the counsel for the accused correctly pointed out the above referred aspects to suspect the visit of PW.1 and PW.2 along with other staff to the scene of offence. As per the evidence of PW.1 and PW.2, occurrence report was prepared in the presence of PW.1 and other police personnel.

But PW.2 did not obtain their signatures on occurrence report. If really, they visited the scene of offence as stated by them, there is every possibility to obtain their signatures on occurrence report. The non obtaining the signatures of all the persons who alleged to have visited the scene of offence on occurrence report speaks volumes. All the above referred circumstances clearly go to show that the visit of PW.2 to the scene of offence is doubtful. There is every possibility to prepare occurrence report in the police station as contended by the counsel for A1 and A2. In the above referred circumstances, the prosecution miserably failed to establish the seizure of MO.1 to MO.3 from the possession of A1 and A2 and preparation of occurrence report at the scene of offence by placing cogent and convincing evidence. Hence, this Court is not inclined to believe the evidence of PW.1 and PW.2. Accordingly, point No.1 is answered.

//9//

POINT No.2

16.Further the other allegation of prosecution is that A1 and A2 intend to sell the said liquor bottles in open market for illegal gain. But there is no scrap of paper before the court that, to whom A1 and A2 sold the said liquor bottles. The police didn’t examine any person to whom A1 and A2 sold the liquor bottles. It is an admitted fact that no measurement was seized from the possession of A1 and A2 at the scene of offence. It is an admitted fact that the seized contraband was readily available in the open market. Without producing any evidence, it cannot be said that the said

MO.1 to MO.3 are in possession of A1 and A2 for the purpose of selling the same in open market. The prosecution did not file any documentary evidence to show that A1 and A2 were consuming alcohol by the time they were in possession of liquor bottles. Without producing cogent evidence, it is not proper to believe the evidence of prosecution to convict

A1 and A2 for the offence U/Sec.34(a) of AP Excise (Amendment) Act and Sec.185A of MV Act. Moreover the police failed to follow the provisions at the time of seizure of contraband from the possession of A1 and A2. After evaluating the entire evidence on record, this Court also relied upon a decision reported in 2002 (1) ALT (Crl.) 251 AP between

Y.Srinivasa Reddy v. State of AP. Having gone through the above referred decision, it is observed that our lordships categorically discussed with regard to the effect of case of prosecution for non complying of the provisions under Sec.55 of AP Excise Act and Sec.100 (4) of Cr.P.C., at the time of search and seizure of any property from the possession of A1 and A2. The facts and circumstances in the above referred decision and the facts and circumstances in the present case on hand are one and the same. As such, the above referred decision is squarely applicable to the present case on hand. Hence, this Court does not believe the evidence of prosecution witnesses to punish A1 and A2 for the offence U/Sec.34(a) of //10//

AP Excise (Amendment) Act and Sec.185A of MV Act. Viewed from any angle, the prosecution failed to prove the guilt of A1 and A2, beyond all reasonable doubt for the offence U/Sec.34(a) of AP Excise (Amendment)

Act and Sec.185A of MV Act. As such, the benefit of doubts certainly goes in favour of A1 and A2. Accordingly, point No.2 is answered.

POINT No.3 :

17.In view of the answers to point Nos.1 and 2, A1 and A2 are entitled for acquittal.

18.In the result, A1 and A2 are found not guilty for the offence punishable U/Sec.34(a) of AP Excise Act, 2023 and Sec.185A of MV Act.

Accordingly, they are acquitted U/Sec.248(1) Cr.P.C. The bail bonds of

A1 and A2, if any, shall be in force for a period of six months U/Sec.437-A

Cr.P.C. The case property i.e., MO.1 to MO.3 are ordered to be destroyed after expiry of appeal time.

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

pronounced by me in Open Court, this the 15th day of November, 2024.

Sd/- Sk.Md.Abutalib Parveez

III Addl. Civil Judge (Junior Division)-Cum- Spl. Judl. Magistrate of I Class (Mobile), Eluru. FAC/IV Addl. Civil Judge (Junior Division)-Cum- Spl. Judl. Magistrate of I Class (Excise), Eluru.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution : For Defence

PW.1: T.Sathish Kumar-PC None

PW.2: K.Raghubabu-HC //11//

DOCUMENTS MARKED

For Prosecution :- For Defence:-

Ex.P1 : Occurrence Report-Nil-

Ex.P.2: Original FIR.

Ex.P3 : Rough sketch

Ex.P4 : Chemical Analysis Report

Ex.P5 : Destruction Proceedings

MATERIAL OBJECTS

MO.1: Sample bottle of Daaru house brandy 180 ml

MO.2: Sample bottle of ocean blue premium whisky 180 ml

MO.3: Sample bottle of AC black classic whisky 180 ml

Id/- Sk.Md.A.P.

III ACJ(JD)-CUM-

SJMFC(M), ELURU.

FAC/IV ACJ(JD)-CUM-

SJMFC(E), ELURU.

//12//

CALENDAR AND JUDGMENT

CALENDAR AND JUDGMENT IN C.C.No.579/2024 ON THE FILE OF

THE IV ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION)-CUM-SPECIAL

JUDICIAL MAGISTRATE OF FIRST CLASS, (EXCISE), ELURU.

DATE OF

Offence ComplaintApprehensioReleasTaken CommencClose ofOrder of or reportn of accusede onon filee-ment oftrialsentence bailtrial 21.10.2321.10.23Sec.41-A--30.9.24 06.11.2024 14.11.24 15.11.2024 Cr.P.C.

Explanation for delay: No avoidable delay took place.

Complainant : State: The Sub Inspector of Police, Eluru III Town PS Crime No.488/2023

S.No. Name of the Father’s name Age Religion Sex Calling Village Mandal Accused

1) Kasireddy Sai Gopal @ Sai Baba, s/o Srinivas Rao, 34 years, Male, r/o Indira colony, Sanivarapupeta, Eluru.

2) Nethala Rama Krishna, s/o Naga Raju, 37 years, Male, r/o Near Sai Baba temple, Duggirala village, Pedavegi Mandal.

Offence: U/Sec.34(a) of A.P. Excise (Amendment) Act, 2023 and Sec.185A of MV Act. Crime No.488/2023 of Eluru III Town PS Finding: Found not guilty.

RESULT: A1 and A2 are found not guilty for the offence punishable U/Sec.34(a) of AP Excise Act, 2023 and Sec.185A of MV Act. Accordingly, they are acquitted U/Sec.248(1) Cr.P.C. The bail bonds of A1 and A2, if any, shall be in force for a period of six months U/Sec.437-A Cr.P.C. The case property i.e., MO.1 to MO.3 are ordered to be destroyed after expiry of appeal time.

Sd/- Sk.Md.Abutalib Parveez

III Addl. Civil Judge (Junior Division)-Cum- Spl. Judl. Magistrate of I Class (Mobile), Eluru. FAC/IV Addl. Civil Judge (Junior Division)-Cum- Spl. Judl. Magistrate of I Class (Excise), Eluru. Seal: Copy submitted to: The Hon’ble I Additional District and Sessions Judge, West Godavari District, Eluru through CD.

//1//

IN THE COURT OF IV ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION)-

CUM-SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS (EXCISE):: ELURU.

Present: Sri Sk. Mohammad Abutalib Parveez

III Additional Civil Judge (Junior Division)-Cum- Special Judicial Magistrate of First Class (Mobile), Eluru. FAC/IV Additional Civil Judge (Junior Division)-Cum- Special Judicial Magistrate of First Class (Excise), Eluru.

Tuesday, the 5th day of November, 2024

C.C.No.582 of 2024

Between:-

State: Sub Inspector of Police, Eluru III Town Police Station Crime No.564/2023

...Complainant

And

Siribathula Venkateswara Rao, s/o Subba Rao, 65 years, r/o Market centre, Sanivarapupeta.

...Accused

This case is coming before me on 04.11.2024 for final hearing in the presence of Learned Assistant Public Prosecutor for State and of Smt.A.Ganga Bhavani, Counsel for accused, upon hearing both sides and matter having stood upon for consideration till this day, this court delivered the following:

J U D G M E N T

01.The Sub Inspector of Police, Eluru III Town Police Station filed a charge sheet in Cr.No.564/2023 for the offence punishable U/Sec.34(a) of

A.P. Excise (Amendment) Act 2023 against the accused.

02.The case of the prosecution in brief is that on 30.12.2023 at about 7.00 PM, on receipt of credible information, PW.4 along with his staff i.e.

PW.1, LW.2/PC, LW.4/HC and mediators i.e. PW.2 and PW.3 rushed to near Market center, Sanivarapupeta, Eluru and found the accused in possession of 1) Old Admiral 180 ml-1, 2) Classic blue 180 ml-3, 3) Epic reserve 180 ml-3, 4) Andhra Gold 180 ml-3, 5) Manjeera Blue 180 ml-2, //2//

6) AC Black 180 ml-2, 7) Original choice 180 ml-2, 8) HD ultra deluxe 180 ml-1. On suspicion, they questioned the accused about the source of the said liquor bottles. In turn the accused voluntarily confessed that he purchased the liquor bottles from various shops with an intention to sell the same at higher rates and failed to produce any valid license to possess the said liquor bottles. Subsequently, PW.4 arrested the accused and brought him along with mediator report and seized liquor bottles to the police station. On the strength of mediator report, PW.4 registered the same as a case in Cr.No.564/2023 u/Sec.34(a) of AP Excise (Amendment) Act and investigated into it. During the course of investigation, PW.4 visited the scene of offence, observed the same and prepared rough sketch and examined all the charge sheeted witnesses and recorded their statements. PW.4 served Sec.41-A Cr.P.C. notice to the accused. LW.7/SI of Police took up further investigation and sent the samples to chemical examiner for analysis. After receipt of chemical analysis report and destruction proceedings, he filed the charge sheet against the accused for the offence U/Sec.34(a) of AP Excise (Amendment) Act, 2023.

03.On receipt of charge sheet, this case was taken on file and cognizance was taken against the accused for the offence U/Sec.34(a)

AP Excise (Amendment) Act, 2023.

04.On appearance of the accused, copies of case documents were furnished to him as contemplated U/Sec.207 of Criminal Procedure Code, 1973 (herein after referred as 'Cr.P.C.' for the sake of brevity).

05.When examined U/Sec.239 of Cr.P.C., the accused denied the allegations leveled against him. After perusing the entire material on record and on hearing both sides, a charge had been framed against him

U/Sec.34(a) of A.P Excise (Amendment) Act, 2023 which was read over //3// and explained to him in Telugu, for which, he pleaded not guilty and claimed to be tried.

06.During the course of trial, on behalf of the prosecution, PW.1 to

PW.4were examined and Ex.P1 to Ex.P7 and MO.1 to MO.9 were marked. The learned APP given up the evidence of LW.2/Y.Rajesh-PC,

LW.3/N.N.Saibabu-HC and LW.7/Sk.Madeena Basha-SI of Police.

07.On closure of evidence let in by the prosecution, the accused was examined U/Sec.313 of Cr.P.C., with regard to the incriminating material available against him, for which, he denied the same and reported no defence evidence.

08.Heard both sides.

a)The learned Assistant Public Prosecutor argued that the evidence of PW.1 to PW.4 coupled with Ex.P1 to Ex.P7 and MO.1 to

MO.9 clearly discloses that the contraband was seized from the possession of the accused is Indian made liquor and he has no valid license to sell the same in open market for profit. As such, the accused is liable for punishment for the above section.

b)Per contra the counsel for the accused argued that no property was seized from the possession of the accused as alleged by the prosecution. Admittedly, the scene of offence where the contraband alleged to have been seized from the possession of the accused was situated in a busy locality. The mediators did not support the case of prosecution. As seen from mediator report that it was scribed at the scene of offence. Some other police also accompanied PW.4 to the scene of offence as per the contents in it. But mediator report did not contain the signatures of anybody. The mediator report did not contain the batch numbers of the seized contraband. As such, it clearly denotes that PW.4 did not visit the scene of offence and nothing was seized from the //4// possession of the accused as stated by him and entire proceedings were prepared in the police station and foisted this false case against the accused. The prosecution failed to establish seizure and preparation of mediator report at the scene of offence. As such, the accused is entitled for benefit of doubt and pleaded to acquit him.

09.After hearing to both side arguments and upon considering the entire material on record, now the points for determination before the

Court are:

“ 1. Whether the police seized the entire contraband from the

possession of the accused?”

“2. Whether the Police gathered any evidence with regard to sale

of liquor bottles by the accused?”

“3. Whether the prosecution is able to prove the guilt of the

accused beyond all reasonable doubts for the offence

U/Sec.34(a) of A.P. Excise (Amendment) Act, 2023?”

POINT No.1:

10.In order to prove the case of prosecution and to establish the seizure of liquor bottles from the possession of the accused, the prosecution got examined PW.1 to PW.4 and got marked the documents as Ex.P1 to Ex.P7 and MO.1 to MO.9. PW.1 is the Constable who accompanied along with PW.4. PW.2 and PW.3 are the mediators who accompanied along with PW.1 and PW.4. PW.4 is the investigating officer who rushed to the scene of offence, apprehended the accused and prepared the mediator report.

11.PW.1 and PW.4 who are the Constable and investigating officer deposed in their evidence that “on 30.12.2023 at about 7.00 PM, on receipt of credible information, they along with LW.2/PC, LW.3/HC and mediators i.e. PW.2 and PW.3 were rushed to Market centre,

Sanivarapupeta, Eluru and found the accused in possession of liquor //5// bottles trying to skulk away from that place. On suspicion, PW.4 detained the accused and interrogated him. On interrogation, the accused voluntarily confessed his identity particulars. Later PW.4 searched the bag which was in the possession of accused and found 1) Old Admiral 180 ml-1, 2) Classic blue 180 ml-3, 3) Epic reserve 180 ml-3, 4) Andhra

Gold 180 ml-3, 5) Manjeera Blue 180 ml-2, 6) AC Black 180 ml-2, 7)

Original choice 180 ml-2, 8) HD ultra deluxe 180 ml-1. Then PW.4 arrested the accused and seized the entire contraband along with cash of

Rs.1,100/- from his possession under the cover of Ex.P3 mediator report.

PW.4 also drew samples from the seized contraband. Then PW.4 brought the accused and seized contraband to the police station. Basing on the strength of mediator report, PW.4 registered the same as a case in

Cr.No.564/2023, U/Sec.34(a) AP Excise (Amendment) Act and forwarded the original FIR Ex.P4 to the Court and copies to all concerned. During the course of further investigation, PW.4 visited the scene of offence, prepared Ex.P5 rough sketch and examined all the charge sheeted witnesses and recorded their statements. PW.4 served Sec.41-A Cr.P.C.

notice on the accused. Later LW.7/SI of Police took up further investigation and sent the samples to the chemical examiner for the purpose of analysis. After receipt of Ex.P6 analysis report and Ex.P7 destruction proceedings, LW.7/SI laid charge sheet against the accused.”

12.PW.2 and PW.3 who are mediators deposed that they does not know anything about this case and at the instance of police, they were signed on white paper and they does not know the contents of mediator report and Ex.P1 and Ex.P2 are their signatures underneath the mediator report.

//6//

13.Before going into the merits in the case of prosecution, it is pertinent to mention the important provisions basing on which the entire case rests.

SECTION 34 of AP Excise Act: Penalties for illegal import etc.

Whoever, in contravention of this Act or of any rule, notification or order made, issued or passed thereunder or of any license or permit granted or issued under this Act,_ (a) imports, exports, transports, manufactures, collects or possesses or sells any intoxicant;

SECTION 55 of AP Excise Act : Power to search without warrant

Whenever the Commissioner or a Collector or any police officer not below the rank of an officer-in-charge of a police station or any Prohibition and Excise Officer not below the rank of an Excise Sub-Inspector has reason to believe that an offence under Section 34, Section 35, Section 36, Section 37 or Section 37-A has been, is being or is likely to be, committed and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may after recording the grounds of his belief,_ (a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act; and

(b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid.

Section 100(4) in The Code Of Criminal Procedure, 1973

Before making a search under this Chapter, the officer or

other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

The above referred provisions clearly discloses that if any police officer wants to seize any articles from the possession of suspected person, he must follow the procedure as contemplated under Sec.100(4) //7// of Cr.P.C. If he fails to secure any independent mediators he must prepare a report as per Sec.55 of AP Excise Act and proceed with the preparation of Special Report.

14.Coming to the present case on hand, the case of prosecution is that on receipt of credible information, PW.4 along with his staff and mediators rushed to market centre, Sanivarapupeta, Eluru and found the accused in possession of bag containing 1) Old Admiral 180 ml-1, 2)

Classic blue 180 ml-3, 3) Epic reserve 180 ml-3, 4) Andhra Gold 180 ml- 3, 5) Manjeera Blue 180 ml-2, 6) AC Black 180 ml-2, 7) Original choice 180 ml-2, 8) HD ultra deluxe 180 ml-1. During the course of interrogation, the accused voluntarily confessed before them that he did not possess any valid license and the said liquor bottles were purchased by him for the purpose of selling the same in open market to gain profit illegally.

When such is the case the Police are at liberty to intercept the said person by following proper procedure. As per the analysis report marked under Ex.P6, the contraband seized from the possession of the accused is an Indian Made Liquor. Ex.P6, the analysis report also concur with the same. As per the quantity seized from the possession of the accused, it is not a permissive one as per orders in GOMs.No.310 Revenue (Excise)

Department, dt.26.10.2020. As such the police has every authority to question the illegal possession of liquor bottles by the accused as it is not a permissive quantity. The only question remained before the court is whether the said liquor bottles are in possession of the accused for the purpose of selling the same in open market. It is an admitted fact that the accused didn’t possess any valid license to sell the liquor bottles to third parties in open market for gain.

15.Now, the clinching issue before the court is whether the said contraband was seized from the possession of the accused by following //8// the proper procedure or not. For which the Court has to verify entire prosecution evidence available before this Court. The Court has to evaluate the evidence of PW.1 and PW.4 to come to a proper conclusion with regard to the seizure of MO.1 to MO.9 under the cover of mediator report.

16.As per the case of prosecution, on receipt of credible information,

PW.4 along with his staff and mediators rushed to market centre,

Sanivarapupeta, Eluru and seized MO.1 to MO.9 from the possession of the accused under a cover of mediator report. It is an admitted fact that some other police personnel also accompanied PW.4 to the scene of offence. But, PW.4 did not make any effort through any of the police personnel to make any effort to secure any person in that locality. Further it is an admitted fact that the scene of offence was situated in a busy locality. But PW.4 did not move his little figure to secure any independent mediator in that locality. The mediators i.e. PW.2 and PW.3 who accompanied with PW.4 did not support the case of prosecution and turned hostile. The rough sketch prepared under Ex.P5 clearly indicates with regard to the existence of residential houses near to the scene of offence. But he did not examine any of inmates shown in the rough sketch to establish his visit to the scene of offence. In those circumstances, it cannot be said that Ex.P5 was prepared at the scene of offence. During the course of cross examination, the counsel for the accused correctly pointed out the above referred aspects to suspect the visit of PW.1 and PW.4 along with other staff and mediators to the scene of offence. As per the evidence of PW.1 and PW.4, mediator report was prepared in the presence of PW.1 and other police personnel and mediators. But PW.5 did not obtain the signatures of other police personnel on mediator report. If really, they visited the scene of offence as stated by them, there is every possibility to obtain their signatures on //9// mediator report. The non obtaining the signatures of all the persons who alleged to have visited the scene of offence on mediator report speaks volumes. All the above referred circumstances clearly go to show that the visit of PW.4 to the scene of offence is doubtful. There is every possibility to prepare mediator report in the police station as contended by the counsel for the accused. In the above referred circumstances, the prosecution miserably failed to establish the seizure of MO.1 to MO.9 from the possession of the accused and preparation of mediator report at the scene of offence by placing cogent and convincing evidence. Hence, this Court is not inclined to believe the evidence of PW.1 and PW.4.

Accordingly, point No.1 is answered.

POINT No.2

17.Further the other allegation of prosecution is that the accused intend to sell the said liquor bottles in open market for illegal gain. But there is no scrap of paper before the court that, to whom the accused sold the said liquor bottles. The police didn’t examine any person to whom the accused sold the liquor bottles. It is an admitted fact that no measurement was seized from the possession of the accused at the scene of offence. It is an admitted fact that the seized contraband was readily available in the open market. Without producing any evidence, it cannot be said that the said MO.1 to MO.8 are in possession of accused for the purpose of selling the same in open market. Without producing cogent evidence, it is not proper to believe the evidence of prosecution to convict the accused for the offence U/Sec.34(a) of AP Excise (Amendment) Act. Moreover the police failed to follow the provisions at the time of seizure of contraband from the possession of the accused. After evaluating the entire evidence on record, this Court also relied upon a decision reported in 2002 (1) ALT (Crl.) 251 AP between Y.Srinivasa Reddy v. State of AP. Having gone through the above referred decision, it is observed that our lordships //10// categorically discussed with regard to the effect of case of prosecution for non complying of the provisions under Sec.55 of AP Excise Act and

Sec.100 (4) of Cr.P.C., at the time of search and seizure of any property from the possession of accused. The facts and circumstances in the above referred decision and the facts and circumstances in the present case on hand are one and the same. As such, the above referred decision is squarely applicable to the present case on hand. Hence, this

Court does not believe the evidence of prosecution witnesses to punish the accused for the offence U/Sec.34(a) of AP Excise (Amendment) Act.

Viewed from any angle, the prosecution failed to prove the guilt of the accused, beyond all reasonable doubt for the offence U/Sec.34(a) of AP

Excise (Amendment) Act. As such, the benefit of doubts certainly goes in favour of the accused. Accordingly, point No.2 is answered.

POINT No.3 :

18.In view of the answers to point Nos.1 and 2, the accused is entitled for acquittal.

19.In the result, the accused is found not guilty for the offence punishable U/Sec.34(a) of AP Excise Act, 2023. Accordingly, he is acquitted U/Sec.248(1) Cr.P.C. The bail bond of the accused, if any, shall be in force for a period of six months U/Sec.437-A Cr.P.C. The case property i.e., MO.1 to MO.8 are ordered to be destroyed and MO.9 shall be confiscate to the State after expiry of appeal time.

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

pronounced by me in Open Court, this the 5th day of November, 2024.

Sd/- Sk.Md.Abutalib Parveez

III Addl. Civil Judge (Junior Division)-Cum- Spl. Judl. Magistrate of I Class (Mobile), Eluru. FAC/IV Addl. Civil Judge (Junior Division)-Cum- Spl. Judl. Magistrate of I Class (Excise), Eluru.

//11//

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution : For Defence PW.1: K.Ramesh-PC None

PW.2: K.Venkata Durga Rao

PW.3: Ch.Pulla Rao

PW.4: I.Vijayaraju-HC

DOCUMENTS MARKED

For Prosecution :- For Defence:-

Ex.P1: Signature of PW.2 on mediator report -Nil-

Ex.P2: Signature of PW.3 on mediator report

Ex.P3: Mediator report

Ex.P4: Original FIR.

Ex.P5 : Rough sketch

Ex.P6 : Chemical Analysis Report

Ex.P7 : Destruction Proceedings

MATERIAL OBJECTS

MO.1: Sample bottle of Classic blue 180 ml

MO.2: Sample bottle of Andhra gold whisky 180 ml

MO.3: Sample bottle of EPIC reserve 180 ml

MO.4: Sample bottle of AC black classic whisky

MO.5: Sample bottle of Manjeera blue whisky

MO.6: Sample bottle of original choice

MO.7: Sample bottle of old admiral

MO.8: Sample bottle of HD ultra deluxe

MO.9: Cash of Rs.1,100/-

Id/- Sk.Md.A.P.

III ACJ(JD)-CUM-

SJMFC(M), ELURU.

FAC/IV ACJ(JD)-CUM-

SJMFC(E), ELURU.

//12//

CALENDAR AND JUDGMENT

CALENDAR AND JUDGMENT IN C.C.No.582/2024 ON THE FILE OF

THE IV ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION)-CUM-SPECIAL

JUDICIAL MAGISTRATE OF FIRST CLASS, (EXCISE), ELURU.

DATE OF

Offence ComplaintApprehensioReleasTaken CommencClose ofOrder of or reportn of accusede onon filee-ment oftrialsentence bailtrial 30.12.2330.12.24Sec.41-A--30.9.24 28.10.2024 04.11.24 05.11.2024 Cr.P.C.

Explanation for delay: No avoidable delay took place.

Complainant : State: The Sub Inspector of Police, Eluru III Town PS Crime No.564/2023

S.No. Name of the Father’s name Age Religion Sex Calling Village Mandal Accused

Siribathula Venkateswara Rao, s/o Subba Rao, 65 years, Male, r/o Market centre, Sanivarapupeta.

Offence: U/Sec.34(a) of A.P. Excise (Amendment) Act, 2023.

Crime No.564/2023 of Eluru III Town PS

Finding: Found not guilty.

RESULT: Accused is found not guilty for the offence punishable U/Sec.34(a) of AP Excise Act, 2023. Accordingly, he is acquitted U/Sec.248(1) Cr.P.C. The bail bond of the accused, if any, shall be in force for a period of six months U/Sec.437-A Cr.P.C. The case property i.e., MO.1 to MO.8 are ordered to be destroyed and MO.9 shall be confiscate to the State after expiry of appeal time.

Sd/- Sk.Md.Abutalib Parveez

III Addl. Civil Judge (Junior Division)-Cum- Spl. Judl. Magistrate of I Class (Mobile), Eluru. FAC/IV Addl. Civil Judge (Junior Division)-Cum- Spl. Judl. Magistrate of I Class (Excise), Eluru. Seal:

Copy submitted to: The Hon’ble I Additional District and Sessions Judge, West Godavari District, Eluru through CD.

//1//

IN THE COURT OF IV ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION)-

CUM-SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS (EXCISE):: ELURU.

Present: Sri Sk. Mohammad Abutalib Parveez

III Additional Civil Judge (Junior Division)-Cum- Special Judicial Magistrate of First Class (Mobile), Eluru. FAC/IV Additional Civil Judge (Junior Division)-Cum- Special Judicial Magistrate of First Class (Excise), Eluru.

Monday, the 4th day of November, 2024

C.C.No.593 of 2024

Between:-

State: Sub Inspector of Police, Eluru III Town Police Station Crime No.49/2024

...Complainant

And

Kapudasi Bhagya Raju, s/o Bhushanam, 39 years, r/o Ambedkar Nagar, Satrampadu, Eluru.

...Accused

This case is coming before me on 29.10.2024 for final hearing in the presence of Learned Assistant Public Prosecutor for State and of Sri.M.Satyajith, Counsel for accused, upon hearing both sides and matter having stood upon for consideration till this day, this court delivered the following:

J U D G M E N T

01.The Sub Inspector of Police, Eluru III Town Police Station filed a charge sheet in Cr.No.49/2024 for the offence punishable U/Sec.34(a) of

A.P. Excise (Amendment) Act 2023 against the accused.

02.The case of the prosecution in brief is that on 07.02.2024 at about 2.30 PM, on receipt of credible information, PW.2 along with his staff i.e.

PW.1 rushed to near Ambedkar Nagar, Satrampadu, Eluru and found the accused in possession of 1) white hall 180 ml bottles-4, 2) Old tavern 180 ml bottles-3 and 3) Amber horse 180 ml bottle-1. On suspicion, they questioned the accused about the source of the said liquor bottles. In turn //2// the accused voluntarily confessed that he purchased the liquor bottles from various shops with an intention to sell the same at higher rates and failed to produce any valid license to possess the said liquor bottles.

Subsequently, PW.2 arrested the accused and brought him along with occurrence report and seized liquor bottles to the police station. On the strength of occurrence report, PW.2 registered the same as a case in

Cr.No.49/2024 u/Sec.34(a) of AP Excise (Amendment) Act and investigated into it. During the course of investigation, PW.2 visited the scene of offence, observed the same and prepared rough sketch and examined all the charge sheeted witnesses and recorded their statements. PW.2 served Sec.41-A Cr.P.C. notice to the accused.

LW.3/SI of Police took up further investigation and sent the samples to chemical examiner for analysis. After receipt of chemical analysis report and destruction proceedings, he filed the charge sheet against the accused for the offence U/Sec.34(a) of AP Excise (Amendment) Act, 2023.

03.On receipt of charge sheet, this case was taken on file and cognizance was taken against the accused for the offence U/Sec.34(a)

AP Excise (Amendment) Act, 2023.

04.On appearance of the accused, copies of case documents were furnished to him as contemplated U/Sec.207 of Criminal Procedure Code, 1973 (herein after referred as 'Cr.P.C.' for the sake of brevity).

05.When examined U/Sec.239 of Cr.P.C., the accused denied the allegations leveled against him. After perusing the entire material on record and on hearing both sides, a charge had been framed against him

U/Sec.34(a) of A.P Excise (Amendment) Act, 2023 which was read over and explained to him in Telugu, for which, he pleaded not guilty and claimed to be tried.

//3//

06.During the course of trial, on behalf of the prosecution, PW.1 and

PW.2were examined and Ex.P1 to Ex.P5 and MO.1 to MO.3 were marked. The learned APP given up the evidence of LW.3/K.Prasad-SI of

Police.

07.On closure of evidence let in by the prosecution, the accused was examined U/Sec.313 of Cr.P.C., with regard to the incriminating material available against him, for which, he denied the same and reported no defence evidence.

08.Heard both sides.

a)The learned Assistant Public Prosecutor argued that the evidence of PW.1 and PW.2 coupled with Ex.P1 to Ex.P5 and MO.1 to

MO.3 clearly discloses that the contraband was seized from the possession of the accused is Indian made liquor and he has no valid license to sell the same in open market for profit. As such, the accused is liable for punishment for the above section.

b)Per contra the counsel for the accused argued that no property was seized from the possession of the accused as alleged by the prosecution. Admittedly, the scene of offence where the contraband alleged to have been seized from the possession of the accused was situated in a busy locality. The investigating officer did not make any effort to secure any independent mediators at the scene of offence. As seen from occurrence report that it was scribed at the scene of offence. Some other police also accompanied PW.2 to the scene of offence as per the contents in it. But occurrence report did not contain the signatures of anybody. The occurrence report did not contain the batch numbers of the seized contraband. As such, it clearly denotes that PW.2 did not visit the scene of offence and nothing was seized from the possession of the accused as stated by him and entire proceedings were prepared in the //4// police station and foisted this false case against the accused. The prosecution failed to establish seizure and preparation of occurrence report at the scene of offence. As such, the accused is entitled for benefit of doubt and pleaded to acquit him.

09.After hearing to both side arguments and upon considering the entire material on record, now the points for determination before the

Court are:

“ 1. Whether the police seized the entire contraband from the

possession of the accused?”

“2. Whether the Police gathered any evidence with regard to sale

of liquor bottles by the accused?”

“3. Whether the prosecution is able to prove the guilt of the

accused beyond all reasonable doubts for the offence

U/Sec.34(a) of A.P. Excise (Amendment) Act, 2023?”

POINT No.1:

10.In order to prove the case of prosecution and to establish the seizure of liquor bottles from the possession of the accused, the prosecution got examined PW.1 and PW.2 and got marked the documents as Ex.P1 to Ex.P5 and MO.1 to MO.3. PW.1 is the Constable who accompanied along with PW.2. PW.2 is the investigating officer who rushed to the scene of offence, apprehended the accused and prepared the occurrence report.

11.PW.1 and PW.2 who are the Constable and investigating officer deposed in their evidence that “on 07.02.2024 at about 2.30 PM, on receipt of credible information, they were rushed to near Ambedkar

Nagar, Satrampadu, Eluru and found the accused in possession of liquor bottles trying to skulk away from that place. On suspicion, PW.2 detained the accused and interrogated him. On interrogation, the accused voluntarily confessed his identity particulars. Later PW.2 searched the //5// bag which was in the possession of accused and found 1) white hall 180 ml bottles-4, 2) Old tavern 180 ml bottles-3 and 3) Amber horse 180 ml bottle-1. Then PW.2 arrested the accused and seized the entire contraband from their possession under the cover of Ex.P1 occurrence report. PW.2 also drew samples from the seized contraband. Then PW.2 brought the accused and seized contraband to the police station. Basing on the strength of occurrence report, PW.2 registered the same as a case in Cr.No.49/2024, U/Sec.34(a) AP Excise (Amendment) Act and forwarded the original FIR Ex.P2 to the Court and copies to all concerned.

During the course of further investigation, PW.2 visited the scene of offence, prepared Ex.P3 rough sketch and examined all the charge sheeted witnesses and recorded their statements. PW.2 served Sec.41-A

Cr.P.C. notice on the accused. Later LW.3/SI of Police took up further investigation and sent the samples to the chemical examiner for the purpose of analysis. After receipt of Ex.P4 analysis report and Ex.P5 destruction proceedings, LW.3/SI laid charge sheet against the accused.”

12.Before going into the merits in the case of prosecution, it is pertinent to mention the important provisions basing on which the entire case rests.

SECTION 34 of AP Excise Act: Penalties for illegal import etc.

Whoever, in contravention of this Act or of any rule, notification or order made, issued or passed thereunder or of any license or permit granted or issued under this Act,_ (a) imports, exports, transports, manufactures, collects or possesses or sells any intoxicant;

SECTION 55 of AP Excise Act : Power to search without warrant

Whenever the Commissioner or a Collector or any police officer not below the rank of an officer-in-charge of a police station or any Prohibition and Excise Officer not below the rank of an Excise Sub-Inspector has reason to believe that an offence under Section 34, Section 35, Section 36, Section 37 or Section 37-A has been, is being or is likely to //6// be, committed and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may after recording the grounds of his belief,_ (a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act; and

(b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid.

Section 100(4) in The Code Of Criminal Procedure, 1973

Before making a search under this Chapter, the officer or

other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

The above referred provisions clearly discloses that if any police officer wants to seize any articles from the possession of suspected person, he must follow the procedure as contemplated under Sec.100(4) of Cr.P.C. If he fails to secure any independent mediators he must prepare a report as per Sec.55 of AP Excise Act and proceed with the preparation of Special Report.

13.Coming to the present case on hand, the case of prosecution is that on receipt of credible information, PW.2 along with his staff rushed to

Ambedkar Nagar, Satrampadu, Eluru and found the accused in possession of bag containing 1) white hall 180 ml bottles-4, 2) Old tavern 180 ml bottles-3 and 3) Amber horse 180 ml bottle-1. During the course of interrogation, the accused voluntarily confessed before them that he did not possess any valid license and the said liquor bottles were purchased by him for the purpose of selling the same in open market to gain profit illegally. When such is the case the Police are at liberty to intercept the //7// said person by following proper procedure. As per the analysis report marked under Ex.P4, the contraband seized from the possession of the accused is an Indian Made Liquor. Ex.P4, the analysis report also concur with the same. As per the quantity seized from the possession of the accused, it is not a permissive one as per orders in GOMs.No.310

Revenue (Excise) Department, dt.26.10.2020. As such the police has every authority to question the illegal possession of liquor bottles by the accused as it is not a permissive quantity. The only question remained

before the court is whether the said liquor bottles are in possession of the

accused for the purpose of selling the same in open market. It is an admitted fact that the accused didn’t possess any valid license to sell the liquor bottles to third parties in open market for gain.

14.Now, the clinching issue before the court is whether the said contraband was seized from the possession of the accused by following the proper procedure or not. For which the Court has to verify entire prosecution evidence available before this Court. The Court has to evaluate the evidence of PW.1 and PW.2 to come to a proper conclusion with regard to the seizure of MO.1 to MO.3 under the cover of occurrence report.

15.As per the case of prosecution, on receipt of credible information,

PW.2 along with his staff rushed to Ambedkar Nagar, Satrampadu, Eluru and seized MO.1 to MO.3 from the possession of the accused under a cover of occurrence report. As per the averments in occurrence report no one came forward to act as mediator and for that reason only PW.2 forced to draft occurrence report. But as seen from it he did not make any effort to secure any independent mediators in that locality. It is an admitted fact that some other police personnel also accompanied PW.2 to the scene of offence. But, PW.2 did not make any effort through any of //8// the police personnel to make any effort to secure any person in that locality. Further it is an admitted fact that the scene of offence was situated in a busy locality. But PW.2 did not move his little figure to secure any independent mediator in that locality. The rough sketch prepared under Ex.P3 clearly indicates with regard to the existence of residential houses near to the scene of offence. But he did not examine any of inmates shown in the rough sketch to establish his visit to the scene of offence. In those circumstances, it cannot be said that Ex.P3 was prepared at the scene of offence. During the course of cross examination, the counsel for the accused correctly pointed out the above referred aspects to suspect the visit of PW.1 and PW.2 along with other staff to the scene of offence. As per the evidence of PW.1 and PW.2, occurrence report was prepared in the presence of PW.1 and other police personnel.

But PW.2 did not obtain their signatures on occurrence report. If really, they visited the scene of offence as stated by them, there is every possibility to obtain their signatures on occurrence report. The non obtaining the signatures of all the persons who alleged to have visited the scene of offence on occurrence report speaks volumes. All the above referred circumstances clearly go to show that the visit of PW.2 to the scene of offence is doubtful. There is every possibility to prepare occurrence report in the police station as contended by the counsel for the accused. In the above referred circumstances, the prosecution miserably failed to establish the seizure of MO.1 to MO.3 from the possession of the accused and preparation of occurrence report at the scene of offence by placing cogent and convincing evidence. Hence, this

Court is not inclined to believe the evidence of PW.1 and PW.2.

Accordingly, point No.1 is answered.

//9//

POINT No.2

16.Further the other allegation of prosecution is that the accused intend to sell the said liquor bottles in open market for illegal gain. But there is no scrap of paper before the court that, to whom the accused sold the said liquor bottles. The police didn’t examine any person to whom the accused sold the liquor bottles. It is an admitted fact that no measurement was seized from the possession of the accused at the scene of offence. It is an admitted fact that the seized contraband was readily available in the open market. Without producing any evidence, it cannot be said that the said MO.1 to MO.3 are in possession of accused for the purpose of selling the same in open market. Without producing cogent evidence, it is not proper to believe the evidence of prosecution to convict the accused for the offence U/Sec.34(a) of AP Excise (Amendment) Act. Moreover the police failed to follow the provisions at the time of seizure of contraband from the possession of the accused. After evaluating the entire evidence on record, this Court also relied upon a decision reported in 2002 (1) ALT (Crl.) 251 AP between Y.Srinivasa Reddy v. State of AP. Having gone through the above referred decision, it is observed that our lordships categorically discussed with regard to the effect of case of prosecution for non complying of the provisions under Sec.55 of AP Excise Act and

Sec.100 (4) of Cr.P.C., at the time of search and seizure of any property from the possession of accused. The facts and circumstances in the above referred decision and the facts and circumstances in the present case on hand are one and the same. As such, the above referred decision is squarely applicable to the present case on hand. Hence, this

Court does not believe the evidence of prosecution witnesses to punish the accused for the offence U/Sec.34(a) of AP Excise (Amendment) Act.

Viewed from any angle, the prosecution failed to prove the guilt of the accused, beyond all reasonable doubt for the offence U/Sec.34(a) of AP //10//

Excise (Amendment) Act. As such, the benefit of doubts certainly goes in favour of the accused. Accordingly, point No.2 is answered.

POINT No.3 :

17.In view of the answers to point Nos.1 and 2, the accused is entitled for acquittal.

18.In the result, the accused is found not guilty for the offence punishable U/Sec.34(a) of AP Excise Act, 2023. Accordingly, he is acquitted U/Sec.248(1) Cr.P.C. The bail bond of the accused, if any, shall be in force for a period of six months U/Sec.437-A Cr.P.C. The case property i.e., MO.1 to MO.3 are ordered to be destroyed after expiry of appeal time.

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

pronounced by me in Open Court, this the 4th day of November, 2024.

Sd/- Sk.Md. Abutalib Parveez

III Addl. Civil Judge (Junior Division)-Cum- Spl. Judl. Magistrate of I Class (Mobile), Eluru. FAC/IV Addl. Civil Judge (Junior Division)-Cum- Spl. Judl. Magistrate of I Class (Excise), Eluru.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution : For Defence

PW.1: K.Ramesh-PC None

PW.2: I.Srinivasa Rao-HC

DOCUMENTS MARKED

For Prosecution :- For Defence:-

Ex.P1 : Occurrence Report-Nil-

Ex.P.2: Original FIR.

//11//

Ex.P3 : Rough sketch

Ex.P4 : Chemical Analysis Report

Ex.P5 : Destruction Proceedings

MATERIAL OBJECTS

MO.1: Sample bottle of white hall 180 ml

MO.2: Sample bottle of old tavern 180 ml

MO.3: Sample bottle of Amber horse 180 ml

Id/- Sk.Md.A.P.

III ACJ(JD)-CUM-

SJMFC(M), ELURU.

FAC/IV ACJ(JD)-CUM-

SJMFC(E), ELURU.

//12//

CALENDAR AND JUDGMENT

CALENDAR AND JUDGMENT IN C.C.No.593/2024 ON THE FILE OF

THE IV ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION)-CUM-SPECIAL

JUDICIAL MAGISTRATE OF FIRST CLASS, (EXCISE), ELURU.

DATE OF

Offence ComplaintApprehensioReleasTaken CommencClose ofOrder of or reportn of accusede onon filee-ment oftrialsentence bailtrial 07.02.2407.02.24Sec.41-A--30.9.24 28.10.2024 29.10.24 04.11.2024 Cr.P.C.

Explanation for delay: No avoidable delay took place.

Complainant : State: The Sub Inspector of Police, Eluru III Town PS Crime No.49/2024

S.No. Name of the Father’s name Age Religion Sex Calling Village Mandal Accused

Kapudasi Bhagya Raju, s/o Bhushanam, 39 years, Male, r/o Ambedkar Nagar, Satrampadu, Eluru.

Offence: U/Sec.34(a) of A.P. Excise (Amendment) Act, 2023.

Crime No.49/2024 of Eluru III Town PS

Finding: Found not guilty.

RESULT: Accused is found not guilty for the offence punishable U/Sec.34(a) of AP Excise Act, 2023. Accordingly, he is acquitted U/Sec.248(1) Cr.P.C. The bail bond of the accused, if any, shall be in force for a period of six months U/Sec.437-A Cr.P.C. The case property i.e., MO.1 to MO.3 are ordered to be destroyed after expiry of appeal time.

Sd/- Sk.Md. Abutalib Parveez

III Addl. Civil Judge (Junior Division)-Cum- Spl. Judl. Magistrate of I Class (Mobile), Eluru. FAC/IV Addl. Civil Judge (Junior Division)-Cum- Spl. Judl. Magistrate of I Class (Excise), Eluru. Seal:

Copy submitted to: The Hon’ble I Additional District and Sessions Judge, West Godavari District, Eluru through CD.

//1//

IN THE COURT OF IV ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION)-

CUM-SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS (EXCISE):: ELURU.

Present: Sri Sk. Mohammad Abutalib Parveez

III Additional Civil Judge (Junior Division)-Cum- Special Judicial Magistrate of First Class (Mobile), Eluru. FAC/IV Additional Civil Judge (Junior Division)-Cum- Special Judicial Magistrate of First Class (Excise), Eluru.

Friday, the 15th day of November, 2024

C.C.No.583 of 2024

Between:-

State: Sub Inspector of Police, Eluru III Town Police Station Crime No.20/2024

...Complainant

And

Tera Satish, s/o Rambabu, 30 years, r/o Market center, Sanivarapupeta, Eluru.

...Accused

This case is coming before me on 14.11.2024 for final hearing in the presence of Learned Assistant Public Prosecutor for State and of Smt.A.Ganga Bhavani, Counsel for accused, upon hearing both sides and matter having stood upon for consideration till this day, this court delivered the following:

J U D G M E N T

01.The Sub Inspector of Police, Eluru III Town Police Station filed a charge sheet in Cr.No.20/2024 for the offence punishable U/Sec.34(a) of

A.P. Excise (Amendment) Act 2023 against the accused.

02.The case of the prosecution in brief is that on 20.01.2024 at about 10.00 AM, on receipt of credible information, PW.2 along with his staff i.e.

PW.1, LW.1/PC rushed to Market centre, Sanivarapupeta, Eluru and found the accused in possession of mansion house 750 ml bottle-1 and 8PM black 180 ml bottles-6. On suspicion, they questioned the accused about the source of the said liquor bottles. In turn the accused voluntarily //2// confessed that he purchased the liquor bottles from various shops with an intention to sell the same at higher rates and failed to produce any valid license to possess the said liquor bottles. Subsequently, PW.2 arrested the accused and brought him along with occurrence report and seized liquor bottles to the police station. On the strength of occurrence report,

PW.2 registered the same as a case in Cr.No.20/2024 u/Sec.34(a) of AP

Excise (Amendment) Act and investigated into it. During the course of investigation, PW.2 visited the scene of offence, observed the same and prepared rough sketch and examined all the charge sheeted witnesses and recorded their statements. PW.2 served Sec.41-A Cr.P.C. notice to the accused. LW.4/SI of Police took up further investigation and sent the samples to chemical examiner for analysis. After receipt of chemical analysis report and destruction proceedings, he filed the charge sheet against the accused for the offence U/Sec.34(a) of AP Excise (Amendment) Act, 2023.

03.On receipt of charge sheet, this case was taken on file and cognizance was taken against the accused for the offence U/Sec.34(a)

AP Excise (Amendment) Act, 2023.

04.On appearance of the accused, copies of case documents were furnished to him as contemplated U/Sec.207 of Criminal Procedure Code, 1973 (herein after referred as 'Cr.P.C.' for the sake of brevity).

05.When examined U/Sec.239 of Cr.P.C., the accused denied the allegations leveled against him. After perusing the entire material on record and on hearing both sides, a charge had been framed against him

U/Sec.34(a) of A.P Excise (Amendment) Act, 2023 which was read over and explained to him in Telugu, for which, he pleaded not guilty and claimed to be tried.

//3//

06.During the course of trial, on behalf of the prosecution, PW.1 and

PW.2were examined and Ex.P1 to Ex.P5 and MO.1 and MO.2 were marked. The learned APP given up the evidence of LW.1/M.Siva Krishna-

PC and LW.4/Sk.Madeena Basha-SI of Police.

07.On closure of evidence let in by the prosecution, the accused was examined U/Sec.313 of Cr.P.C., with regard to the incriminating material available against him, for which, he denied the same and reported no defence evidence.

08.Heard both sides.

a)The learned Assistant Public Prosecutor argued that the evidence of PW.1 and PW.2 coupled with Ex.P1 to Ex.P5 and MO.1 and

MO.2 clearly discloses that the contraband was seized from the possession of the accused is Indian made liquor and he has no valid license to sell the same in open market for profit. As such, the accused is liable for punishment for the above section.

b)Per contra the counsel for the accused argued that no property was seized from the possession of the accused as alleged by the prosecution. Admittedly, the scene of offence where the contraband alleged to have been seized from the possession of the accused was situated in a busy locality. The investigating officer did not make any effort to secure any independent mediators at the scene of offence. As seen from occurrence report that it was scribed at the scene of offence. Some other police also accompanied PW.2 to the scene of offence as per the contents in it. But occurrence report did not contain the signatures of anybody. The occurrence report did not contain the batch numbers of the seized contraband. As such, it clearly denotes that PW.2 did not visit the scene of offence and nothing was seized from the possession of the accused as stated by him and entire proceedings were prepared in the //4// police station and foisted this false case against the accused. The prosecution failed to establish seizure and preparation of occurrence report at the scene of offence. As such, the accused is entitled for benefit of doubt and pleaded to acquit him.

09.After hearing to both side arguments and upon considering the entire material on record, now the points for determination before the

Court are:

“ 1. Whether the police seized the entire contraband from the

possession of the accused?”

“2. Whether the Police gathered any evidence with regard to sale

of liquor bottles by the accused?”

“3. Whether the prosecution is able to prove the guilt of the

accused beyond all reasonable doubts for the offence

U/Sec.34(a) of A.P. Excise (Amendment) Act, 2023?”

POINT No.1:

10.In order to prove the case of prosecution and to establish the seizure of liquor bottles from the possession of the accused, the prosecution got examined PW.1 and PW.2 and got marked the documents as Ex.P1 to Ex.P5 and MO.1 and MO.2. PW.1 is the

Constable who accompanied along with PW.2. PW.2 is the investigating officer who rushed to the scene of offence, apprehended the accused and prepared the occurrence report.

11.PW.1 and PW.2 who are the Constable and investigating officer deposed in their evidence that “on 20.01.2024 at about 10.00 AM, on receipt of credible information, they were rushed to Market center,

Sanivarapupeta, Eluru and found the accused in possession of liquor bottles trying to skulk away from that place. On suspicion, PW.2 detained the accused and interrogated him. On interrogation, the accused voluntarily confessed his identity particulars. Later PW.2 searched the //5// bag which was in the possession of accused and found Mansion house 750 ml bottle-1 and 8PM black 180 ml bottles-6. Then PW.2 arrested the accused and seized the entire contraband from their possession under the cover of Ex.P1 occurrence report. PW.2 also drew samples from the seized contraband. Then PW.2 brought the accused and seized contraband to the police station. Basing on the strength of occurrence report, PW.2 registered the same as a case in Cr.No.20/2024,

U/Sec.34(a) AP Excise (Amendment) Act and forwarded the original FIR

Ex.P2 to the Court and copies to all concerned. During the course of further investigation, PW.2 visited the scene of offence, prepared Ex.P3 rough sketch and examined all the charge sheeted witnesses and recorded their statements. PW.2 served Sec.41-A Cr.P.C. notice on the accused. Later LW.4/SI of Police took up further investigation and sent the samples to the chemical examiner for the purpose of analysis. After receipt of Ex.P4 analysis report and Ex.P5 destruction proceedings,

LW.4/SI laid charge sheet against the accused.”

12.Before going into the merits in the case of prosecution, it is pertinent to mention the important provisions basing on which the entire case rests.

SECTION 34 of AP Excise Act: Penalties for illegal import etc.

Whoever, in contravention of this Act or of any rule, notification or order made, issued or passed thereunder or of any license or permit granted or issued under this Act,_ (a) imports, exports, transports, manufactures, collects or possesses or sells any intoxicant;

SECTION 55 of AP Excise Act : Power to search without warrant

Whenever the Commissioner or a Collector or any police officer not below the rank of an officer-in-charge of a police station or any Prohibition and Excise Officer not below the rank of an Excise Sub-Inspector has reason to believe that an offence under Section 34, Section 35, Section 36, Section 37 or Section 37-A has been, is being or is likely to //6// be, committed and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may after recording the grounds of his belief,_ (a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act; and

(b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid.

Section 100(4) in The Code Of Criminal Procedure, 1973

Before making a search under this Chapter, the officer or

other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

The above referred provisions clearly discloses that if any police officer wants to seize any articles from the possession of suspected person, he must follow the procedure as contemplated under Sec.100(4) of Cr.P.C. If he fails to secure any independent mediators he must prepare a report as per Sec.55 of AP Excise Act and proceed with the preparation of Special Report.

13.Coming to the present case on hand, the case of prosecution is that on receipt of credible information, PW.2 along with his staff rushed to

Market centre, Sanivarapupeta, Eluru and found the accused in possession of bag containing Mansion house 750 ml bottle-1 and 8PM black 180 ml bottles-6. During the course of interrogation, the accused voluntarily confessed before them that he did not possess any valid license and the said liquor bottles were purchased by him for the purpose of selling the same in open market to gain profit illegally. When such is the case the Police are at liberty to intercept the said person by following //7// proper procedure. As per the analysis report marked under Ex.P4, the contraband seized from the possession of the accused is an Indian Made

Liquor. Ex.P4, the analysis report also concur with the same. As per the quantity seized from the possession of the accused, it is not a permissive one as per orders in GOMs.No.310 Revenue (Excise) Department, dt.26.10.2020. As such the police has every authority to question the illegal possession of liquor bottles by the accused as it is not a permissive quantity. The only question remained before the court is whether the said liquor bottles are in possession of the accused for the purpose of selling the same in open market. It is an admitted fact that the accused didn’t possess any valid license to sell the liquor bottles to third parties in open market for gain.

14.Now, the clinching issue before the court is whether the said contraband was seized from the possession of the accused by following the proper procedure or not. For which the Court has to verify entire prosecution evidence available before this Court. The Court has to evaluate the evidence of PW.1 and PW.2 to come to a proper conclusion with regard to the seizure of MO.1 and MO.2 under the cover of occurrence report.

15.As per the case of prosecution, on receipt of credible information,

PW.2 along with his staff rushed to Market centre, Sanivarapupeta, Eluru and seized MO.1 and MO.2 from the possession of the accused under a cover of occurrence report. As per the averments in occurrence report no one came forward to act as mediator and for that reason only PW.2 forced to draft occurrence report. But as seen from it he did not make any effort to secure any independent mediators in that locality. It is an admitted fact that some other police personnel also accompanied PW.2 to the scene of offence. But, PW.2 did not make any effort through any of //8// the police personnel to make any effort to secure any person in that locality. Further it is an admitted fact that the scene of offence was situated in a busy locality. But PW.2 did not move his little figure to secure any independent mediator in that locality. The rough sketch prepared under Ex.P3 clearly indicates with regard to the existence of residential houses near to the scene of offence. But he did not examine any of inmates shown in the rough sketch to establish his visit to the scene of offence. In those circumstances, it cannot be said that Ex.P3 was prepared at the scene of offence. During the course of cross examination, the counsel for the accused correctly pointed out the above referred aspects to suspect the visit of PW.1 and PW.2 along with other staff to the scene of offence. As per the evidence of PW.1 and PW.2, occurrence report was prepared in the presence of PW.1 and other police personnel.

But PW.2 did not obtain their signatures on occurrence report. If really, they visited the scene of offence as stated by them, there is every possibility to obtain their signatures on occurrence report. The non obtaining the signatures of all the persons who alleged to have visited the scene of offence on occurrence report speaks volumes. All the above referred circumstances clearly go to show that the visit of PW.2 to the scene of offence is doubtful. There is every possibility to prepare occurrence report in the police station as contended by the counsel for the accused. In the above referred circumstances, the prosecution miserably failed to establish the seizure of MO.1 and MO.2 from the possession of the accused and preparation of occurrence report at the scene of offence by placing cogent and convincing evidence. Hence, this

Court is not inclined to believe the evidence of PW.1 and PW.2.

Accordingly, point No.1 is answered.

//9//

POINT No.2

16.Further the other allegation of prosecution is that the accused intend to sell the said liquor bottles in open market for illegal gain. But there is no scrap of paper before the court that, to whom the accused sold the said liquor bottles. The police didn’t examine any person to whom the accused sold the liquor bottles. It is an admitted fact that no measurement was seized from the possession of the accused at the scene of offence. It is an admitted fact that the seized contraband was readily available in the open market. Without producing any evidence, it cannot be said that the said MO.1 and MO.2 are in possession of accused for the purpose of selling the same in open market. Without producing cogent evidence, it is not proper to believe the evidence of prosecution to convict the accused for the offence U/Sec.34(a) of AP Excise (Amendment) Act. Moreover the police failed to follow the provisions at the time of seizure of contraband from the possession of the accused. After evaluating the entire evidence on record, this Court also relied upon a decision reported in 2002 (1) ALT (Crl.) 251 AP between Y.Srinivasa Reddy v. State of AP. Having gone through the above referred decision, it is observed that our lordships categorically discussed with regard to the effect of case of prosecution for non complying of the provisions under Sec.55 of AP Excise Act and

Sec.100 (4) of Cr.P.C., at the time of search and seizure of any property from the possession of accused. The facts and circumstances in the above referred decision and the facts and circumstances in the present case on hand are one and the same. As such, the above referred decision is squarely applicable to the present case on hand. Hence, this

Court does not believe the evidence of prosecution witnesses to punish the accused for the offence U/Sec.34(a) of AP Excise (Amendment) Act.

Viewed from any angle, the prosecution failed to prove the guilt of the accused, beyond all reasonable doubt for the offence U/Sec.34(a) of AP //10//

Excise (Amendment) Act. As such, the benefit of doubts certainly goes in favour of the accused. Accordingly, point No.2 is answered.

POINT No.3 :

17.In view of the answers to point Nos.1 and 2, the accused is entitled for acquittal.

18.In the result, the accused is found not guilty for the offence punishable U/Sec.34(a) of AP Excise Act, 2023. Accordingly, he is acquitted U/Sec.248(1) Cr.P.C. The bail bond of the accused, if any, shall be in force for a period of six months U/Sec.437-A Cr.P.C. The case property i.e., MO.1 and MO.2 are ordered to be destroyed after expiry of appeal time.

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

pronounced by me in Open Court, this the 15th day of November, 2024.

Sd/- Sk.Md.Abutalib Parveez

III Addl. Civil Judge (Junior Division)-Cum- Spl. Judl. Magistrate of I Class (Mobile), Eluru. FAC/IV Addl. Civil Judge (Junior Division)-Cum- Spl. Judl. Magistrate of I Class (Excise), Eluru.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution : For Defence

PW.1: K.Ramesh-PC None

PW.2: I.VIjayaraju-HC

DOCUMENTS MARKED

For Prosecution :- For Defence:-

Ex.P1 : Occurrence Report-Nil-

Ex.P.2: Original FIR.

//11//

Ex.P3 : Rough sketch

Ex.P4 : Chemical Analysis Report

Ex.P5 : Destruction Proceedings

MATERIAL OBJECTS

MO.1: Sample bottle of Mansion house 750 ml

MO.2: Sample bottle of 8PM black 180 ml

Id/- Sk.Md.A.P.

III ACJ(JD)-CUM-

SJMFC(M), ELURU.

FAC/IV ACJ(JD)-CUM-

SJMFC(E), ELURU.

//12//

CALENDAR AND JUDGMENT

CALENDAR AND JUDGMENT IN C.C.No.583/2024 ON THE FILE OF

THE IV ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION)-CUM-SPECIAL

JUDICIAL MAGISTRATE OF FIRST CLASS, (EXCISE), ELURU.

DATE OF

Offence ComplaintApprehensioReleasTaken CommencClose ofOrder of or reportn of accusede onon filee-ment oftrialsentence bailtrial 20.01.2420.01.24Sec.41-A--30.9.24 29.10.2024 14.11.24 15.11.2024 Cr.P.C.

Explanation for delay: No avoidable delay took place.

Complainant : State: The Sub Inspector of Police, Eluru III Town PS Crime No.20/2024

S.No. Name of the Father’s name Age Religion Sex Calling Village Mandal Accused

Tera Satish, s/o Rambabu, 30 years, Male, r/o Market center, Sanivarapupeta, Eluru.

Offence: U/Sec.34(a) of A.P. Excise (Amendment) Act, 2023.

Crime No.20/2024 of Eluru III Town PS

Finding: Found not guilty.

RESULT: Accused is found not guilty for the offence punishable U/Sec.34(a) of AP Excise Act, 2023. Accordingly, he is acquitted U/Sec.248(1) Cr.P.C. The bail bond of the accused, if any, shall be in force for a period of six months U/Sec.437-A Cr.P.C. The case property i.e., MO.1 and MO.2 are ordered to be destroyed after expiry of appeal time.

Sd/- Sk.Md.Abutalib Parveez

III Addl. Civil Judge (Junior Division)-Cum- Spl. Judl. Magistrate of I Class (Mobile), Eluru. FAC/IV Addl. Civil Judge (Junior Division)-Cum- Spl. Judl. Magistrate of I Class (Excise), Eluru. Seal:

Copy submitted to: The Hon’ble I Additional District and Sessions Judge, West Godavari District, Eluru through CD.