, Sri A.omkar, Mobile Court

CC No.861 of 2021 1 Dated 29.12.2021.

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS

(MOBILE) FOR TRIAL OF CASES UNDER PCR ACT, ANANTHAPURAMU.

Present: Sri A. Omkar,

I Additional Judicial Magistrate of First Class,

Ananthapuramu.

FAC Special Judicial Magistrate of First Class (Mobile) for trial of

Cases under PCR Act, Ananthapuramu.

Wednesday, this the 29th day of December, 2021.

Calendar Case No. 861 of 2021

(Crime Number 394/2021 of Ananthapuramu III Town Police Station)

Between:

The State of Andhra Pradesh represented by the Inspector of Police, Ananthapuramu III Town Police

station... Complainant

And

Boggu Murali @ Buddu, aged 23 years, S/o Boggu

Selvaraju, R/o D.No.8/543, Gandhi Nagar, Dharmavaram ..Accused

Town.

This case is coming on 28.12.2021before me for final hearing in the presence of learned Assistant Public Prosecutor, for the Complainant and of Sri. B. Ramakrishna Naik, learned Advocate for the accused and upon hearing and having stood over for consideration to this day, the Court delivers the following:

// J U D G M E N T //

1.The State represented through V.Reddappa(PW7/LW9), the

Inspector of Police, Ananthapuramu III Town Police Station filed charge sheet against the accused in crime No.394 of 2021 of Ananthapuramu III Town

Police Station, for the offence punishable under Section 379 or 411 of Indian

Penal Code.

2. The case of the prosecution alleged against the accused is as follows:

On 29.08.2021 at about 6.00 A.m., at temporary vegetable

CC No.861 of 2021 2 Dated 29.12.2021.

market situated at Government Junior Collge, Ananthapuramu town, some unknown offenders committed theft of MOTO E7 power model, OPPO A 15S and MI company cell phones, worth of Rs.10,000/- each (Rupees Ten thousand Only) belongs to R.Ramanjineyulu (PW1/LW1), Shaik

Noorjahan(PW2/LW2) and C.Narayana(PW5/LW3) from their pockets, when they went to the said vegetable market to purchase vegetables. Then, they searched for the same, but in vain. Basing on the report of

R.Ramanjineyulu(PW1/LW1), V.Reddappa(PW7/LW9), Inspector of Police of

Ananthapuramu III Town Police station, registered the case in crime No.394 of 2021 for the offence punishable under Section 379 of Indian Penal Code on 29.08.2021 at about 8.00 Am., and investigated into. He examined PW1,

PW2 and PW5 and LW4/K.Mallikarjuna and LW5/K.Madhu and recorded their statements, visited the scene of offence and prepared rough sketch of the scene.

During the course of investigation, on 30.08.2021 at 7.30 am., at TV

Tower, Ananthapuramu, R. Prathap Reddy (PW6/LW8), Inspector of Police,

Ananthapuramu I Town Police Station on receiving the credible information about the offender, he secured the presence of PW3 and PW4 through his staff and proceeded to T.V. Tower, Ananthapuramu at about 8.00 Am., and found the accused proceeding towards Bangalore side with carrying a bag.

On suspicion PW6 interrogated the accused, for which the accused voluntarily confessed about the commission of offence in Cr.No.489/2021 and also in this case for the offence punishable under section 379 of Indian Penal

Code of Ananthapuramu I Town Police Station and 9 other cases relating to

Ananthapuramu I Town and IV Town police stations. Then, PW6 arrested the accused and seized the stolen properties i.e., 14 cell phones concerned to this case and some other crimes from the possession of the accused under cover of certified copy of mahazarnama duly attested by two mediators, i.e,

CC No.861 of 2021 3 Dated 29.12.2021.

A.Subhan (PW3/LW6) and D.Anand Kumar (PW4/LW7). He produced the

Accused before the Court in crime No.489/2021 of Ananthapuramu I Town

Police station for judicial remand. Later, PW7 the Inspector of Police,

Ananthapuramu III Town Police Station, on 06.09.2021 he produced the accused for judicial remand in Cr.No.394/2021 of Ananthapuramu III Town

Police Station on execution of Prisoner’s Transit Warrant. After completion of his investigation, he filed charge sheet against the accused. Therefore, the accused is liable for punishment for the offence punishable under Section 379 or 411 of Indian Penal Code.

2.On 29.11.2021, this court took cognizance of case against the accused for offence punishable under Section 379 or 411 of Indian penal

Code.

3.On 08.12.2021, the accused was produced from District Jail,

Ananthapuramu. Copies of documents were furnished to him as contemplated under Section 207 Criminal Procedure Code.

4.On 09.12.2021, the accused was produced from District Jail,

Ananthapuramu and examined under Section 239 of Criminal Procedure

Code in Telugu, for which he denied. After hearing both sides and on perusing the entire case records, charge for the offence punishable under

Section 379 of Indian Penal Code and an alternative charge for the offence punishable under section 411 of Indian Penal Code were framed against the accused. The said charges were read over and explained to him in Telugu, for which he denied the same, pleaded not guilty and also claimed to be tried. Thus, the case was posted for trial.

5.During the course of trial, the prosecution has examined LW.1, 2, 6, 7, 3, 8 and 9 as PWs 1 to 7 respectively and got marked Exs.P1 to P6 besides MO.1 to MO.3. The learned Assistant Public Prosecutor has given up

CC No.861 of 2021 4 Dated 29.12.2021.

the evidence of K.Mallikarjuna (LW4) and K.Madhu(LW5). Accordingly, the prosecution side evidence is closed.

6.On 28.12.2021 after closure of prosecution evidence, the accused was examined under Section 313 of Criminal Procedure Code by explaining the incriminating prosecution evidence in question form, in

Telugu, for which he denied and reported that there is no defence evidence.

7. The stand of the accused is of total denial. He contended by way of suggestion that the police foisted a false case against him for disposal of undetected cases. No evidence was adduced on his behalf.

8.The learned Assistant Public Prosecutor argued that the evidence of PW1, PW2 and PW5, PW6 and PW7 coupled with the contents of

Ex.P1/complaint establishes that MOs.1 to 3 i.e., Cell phones belongs to PW1,

PW2 and PW5 respectively and they were stolen from the possession of PW1,

PW2 and PW5 and that the evidence of PW6 further establishes that the accused had stolen the same and had dishonestly retained the said Cell phones for wrongful gain and therefore, the accused is liable for punishment for the offence punishable under under section 379 or 411 of Indian Penal

Code.

9.On the other hand, the learned defence counsel argued that there is no direct evidence to establish that the accused committed theft of

MOs.1 to 3/Cell phones from the possession of PW1, PW2 and PW5 and further, there is no support of the independent mediators i.e., PW3 and PW4 to the prosecution case and furthermore, PW6 failed to secure local inhabitants as mediators and as, he failed to follow the procedure laid under law at the time of arrest and seizure, the accused is entitled for benefit of doubt.

10. Heard arguments of the learned Assistant Public Prosecutor and

CC No.861 of 2021 5 Dated 29.12.2021.

learned defence counsel. Perused the entire record.

11.Now, the points for determination are as follows:

(i) Whether the prosecution is able to establish that PW1, PW2 and PW5 were in possession of MOs.1 to 3 i.e., Cell phones respectively and the same were stolen from their possession, prior to the alleged recovery made on

30.08.2021, beyond the reasonable doubt?

(ii) Whether the prosecution is able to establish that MOs. 1 to 3 i.e., Cell phones were recovered from the possession

of the accused, beyond the reasonable doubt?

(iii) Whether the prosecution is able to establish that the accused had dishonestly received or retained MOs.1 to 3 by knowing or having reason to believe that MOs. 1 to 3 Cell phones are stolen properties, beyond the reasonable doubt?

(iv) Whether the prosecution is able to establish that the accused had committed theft of MOs.1 to 3 i.e., Cell phones from the possession of PW1, PW2 and PW5 respectively and committed an offence punishable under section 379 of Indian Penal Code, beyond the reasonable doubt?

(v) Whether the prosecution is able to establish the guilt of the accused for an offence punishable under section 411

of Indian Penal Code, beyond the reasonable doubt?

12.In order to substantiate its case, the prosecution has examined

Seven witnesses out of the Nine listed witnesses as PWs 1 to 7 and got marked Ex.P1 to P6 besides MOs 1 to 3. PW1 is the defacto-complainant.

Ex.P1 is complaint of PW1, dated 29.08.2021. PW2 is one of the independent circumstantial witness-cum-victim. PW3 and PW4 arethe mediators who accompanied by the police at the time of arrest and seizure. Ex.P2 and P3 are the signatures of the PW3 and PW4 on certified copy of confession, arrest and seizure mahazarnama, dated 30.08.2021. PW5 is another independent circumstantial witness-cum-victim.PW6is the Inspector of Police,

Ananthapuramu I Town Police station who arrested the accused and seized the stolen case property and investigated in to the case. Ex.P4 is the certified copy of mahazarnama, dated 30.08.2021. PW7 is the Inspector of

Police, Ananthapuramu III Town Police Station who registered the case in

CC No.861 of 2021 6 Dated 29.12.2021.

Cr.No.394/2021 of Ananthapuramu III Town Police Station and investigated into the case. Ex.P5 is Original First Information Report. Ex.P6 is rough sketch of the scene of offence.

MO1 is MOTO E7 Cell phone. MO2 is OPPO Cell phone. MO3 is MI Cell phone.

13.In view of rival contentions, the entire evidence is perused.

14.Point No. 1:

Herein the case, the unchallenged evidence of PW1, PW2 and

PW5, PW1 is the defacto complainant goes to shows that on 29.08.2021 at about 6.00 A.m., he went to temporary vegetable market situated at

Government Junior College, Ananthapuramu town to purchase vegetables.

Later, he noticed that some unknown offenders committed theft of his

MOTOROLA E7 Cell phone worth of Rs.10,000/- (MO.1) he searched for the same near the surrounding areas but in vain, in the meanwhile he came to know that PW2 and PW5 were also lost their cell phones in the said vegetable market. Then, on the same day, he preferred complaint(Ex.P1) in

Ananthapuramu III Town Police Station. His evidence further shows that after some days, he came to know about the recovery of his property. He identified the MOTO E7 cell phone before the Court, as the cell phone stolen from his possession and the same is marked as MO1 and the same was given to the interim custody of PW1 after obtaining requisition under proper acknowledgment.

The evidence of PW2, the circumstantial witness-cum-victim goes to shows that on 29.08.2021 at about 6.00 A.m., she went to temporary vegetable market situated at Government Junior College, Ananthapuramu town to purchase vegetables. Later, she noticed that some unknown offenders committed theft of her OPPO A15 Cell phone worth of Rs.10,000/- (MO.2) she searched for the same near the surroundings but in vain. Her

CC No.861 of 2021 7 Dated 29.12.2021.

evidence further shows that after some days, she came to know about the recovery of her property. She identified the OPPO A15 cell phone before the

Court, as the cell phone stolen from her possession and the same is marked as MO2 and the same was given to the interim custody of PW2 after obtaining requisition under proper acknowledgment.

The evidence of PW5, the circumstantial witness-cum-victim goes to shows that at about three months back he went to temporary vegetable market situated at Government Junior College, Ananthapuramu town to purchase vegetables. Later, he noticed that some unknown offenders committed theft of his MI Cell phone worth of Rs.10,000/- (MO.3) he searched for the same near the surroundings but in vain. His evidence further shows that after some days, he came to know about the recovery of his property.

He identified the MI cell phone before the Court, as the cell phone stolen from his possession and the same is marked as MO3 and the same was given to the interim custody of PW5 after obtaining requisition under proper acknowledgment.

15.The evidence of PW1, PW2 and PW5 also corroborates with the evidence of PW7 with regard to giving report i.e., Ex.P1. Except putting suggestion that false cases were foisted against the accused for statistical purpose, which was denied by PW7. Nothing was elicited to discard his evidence in this aspect. Thus, the Court finds no reason to disbelieve the evidence of PW1, PW2 and PW5 supported by PW7.

16.Further the evidence of PW7, the Inspector of Police,

Ananthapuramu III Town Police Station, goes to show about registration of case in Crime No.394 of 2021 of Ananthapuramu III Town Police Station for the offence punishable under section 379 of Indian Penal Code, issuance of

First Information Report, i.e., Ex.P5, examination of witnesses, recording of their statements and preparation of rough sketch of the scene of offence i.e.,

CC No.861 of 2021 8 Dated 29.12.2021.

Ex.P6. There is no delay in lodging the report. Subsequently, he produced the accused before the Court on execution of Prisoner’s Transit Warrant for judicial remand in this case. After completion of his investigation he filed charge sheet in this case against the accused. Thus, the evidence of PW.7 corroborates the version of PW1, PW2 and PW5 with regard to the commission of theft of MOs1 to 3.As PW3 and PW4 did not support the prosecution version, the learned Assistant Public Prosecutor declared them as hostile and cross-examined them with the permission of the Court, which helps the prosecution, to prove the connectivity of the accused to the alleged offence.

17.However, none including the accused, either disputed that PW1,

PW2 and PW5 are the owners of MOs.1 to 3 or claimed the said properties, as their own. In such circumstances, the Court is of the view that the evidence of PW1, PW2 and PW5 supported by PW6 and PW7 coupled with the contents of Ex.P1/report clinchingly establishes that MOs.1 to 3 i.e., Cell phones and the same were stolen from their possession, prior to the alleged recovery made on 30.08.2021, in other words the prosecution has established that the

MO.1 to MO.3 are the stolen properties, beyond the reasonable doubt.

Accordingly, the point No.1 is answered in favour of the prosecution.

18. Point No. 2 and 3 :-

Now, it has to be seen as to whether the prosecution is able to establish that the said stolen properties i.e., MOs.1 to MO.3 were recovered from the possession of the accused as alleged. To prove the same, the prosecution has examined PW3, PW4 and PW6. Among them, PW3 and PW4 are independent mediators and PW6 is the Investigating Officer in this case.

According to PW6, on receiving credible information on 30.08.2021 at about 7.30 Am., he secured the presence of PW3 and PW4 through his staff and proceeded to in front of TV Tower, Ananthapuramu Town, they reached at

CC No.861 of 2021 9 Dated 29.12.2021.

about 8.00 Am., he arrested the accused in Cr.No.489/2021 of

Ananthapuramu I Town Police Station, on interrogation the accused voluntarily confessed about the guilt in this case and as well as 9 other

Crimes relating to Ananthapuramu I Town and IV Town Police Stations in the presence of PW3 and PW4 and seized 14 stolen Cell phones including MOs.1 to 3 were recovered from the possession of the accused under cover of

Ex.P4/certified copy of mahazarnama.

19. On coming to the evidence of independent mediators i.e, PW3 and PW4, they did not support the prosecution version. Even though, they identified their respective signatures i.e., Ex.P2 and P3 on certified copy of mahazarnama, they deposed that they do not know anything about this case, police obtained their signatures on some written papers, but they do not know the contents of those papers. As PW3 and PW4 did not support the prosecution case, the learned Assistant Public Prosecutor declared them as hostile and cross examined them with the permission of the Court. But nothing was elicited from their evidence which supports the prosecution case. So, there is no support of independent mediators to the prosecution case.

20.The learned Assistant Public Prosecutor argued that the evidence of PW6 which establishes the recovery of stolen properties from the possession of the accused, need not be discarded for the reason of non- support of mediators. Though there is some force in the said contention, it is to be noted that PW6 is a Police official and the alleged recovery was not made subsequent to confession alleged to be made by the accused. So, the contents of the said certified copy of mahazarnama(Ex.P4) are not even admissible under Section 27 of Indian Evidence Act. Since, there is no support of independent mediators, the contents of the said certified copy of mahazarnama is hit by Section 25 and 26 of Indian Evidence Act and the

CC No.861 of 2021 10 Dated 29.12.2021.

same cannot be considered. In such circumstances, when there is no support of independent mediators, the Court feels that it is highly unsafe to rely upon the sole testimony of PW6.

21.At this juncture, it is pertinent to note the decision in Botcha

Raju and State represented by the Inspector of police, Vizianagaram Rural

Circle reported in 1994(2) ALT (Crl.) 69 (AP), wherein the Hon'ble High

Court of Andhra Pradesh held in para 2 as follows:

“… The evidence of PW3, PW8 and PW9, who are all police officers, cannot be easily believed without proper corroboration by disinterested witnesses. As such, the

Courts below fell in error by accepting the version of police officers without the corroboration of disinterested witnesses mentioned above. No particular motive is made out against the above witnesses, who turned hostile, so as to say, that they are specially interested in the petitioner to bail him out of the offence”.

22.In the light of the above decision, in the absence of support of independent mediators and also the direct witnesses including the defacto complainant and circumstantial witnesses i.e., PW1, PW2 and PW5, the Court is of the view that it is highly unsafe to rely upon the sole testimony of PW6 with regard to the recovery of MOs.1 to 3 from the possession of the

Accused.

23.For the foregoing reasons, the Court finds no convincing and satisfactory evidence to hold that the prosecution failed to establish the alleged recovery of stolen properties from the possession of the accused, the question as to whether the accused had knowledge that the said MOs.1 to 3

Cell phones are stolen properties or not, does not arise. Accordingly, the points No.2 and 3 are answered against the prosecution and in favour of the accused.

CC No.861 of 2021 11 Dated 29.12.2021.

24. Point No. 4 :-

On coming to the charge for the offence punishable under section 379 of Indian Penal Code, it has to be seen as to whether the prosecution is able to establish that the accused had committed theft of

MOs.1 to 3 i.e., Cell phones. Admittedly, PW1, PW2 and PW5, except the PW6 or any other witnesses did not identify the accused as the person who committed theft. Apparently, PW6 did not seize or secure any incriminating material such as finger prints of the accused or CC footage of the alleged scene of offence or place of seizure of stolen property, in order to prove the accused as thief or to connect the accused and accused to the commission of offence. Further, there is no support of independent mediators even to the alleged recovery of MOs. 1 to 3 cell phones from the possession of the accused and the alleged confession said to be made by the accused.

Admittedly, PW6 failed to secure local inhabitants at the place of seizure i.e., near TV Tower, Ananthapuramu is a busy locality as well as the residential area. Thus, in the absence of any direct and circumstantial evidence to connect the accused to the commission of offence, the Court is not even able to draw any adverse presumption under section 114 of Evidence Act against the accused to conclude that he committed theft of MOs.1 to 3. Therefore, the Court finds no convincing and satisfactory evidence to hold that the accused committed an offence punishable under section 379 of Indian Penal

Code. Hence, the Court holds that the prosecution failed to establish the guilt of the accused for the offence punishable under section 379 of Indian Penal

Code, beyond the reasonable doubt. Accordingly, the point No.4 is answered in favour of the accused and against the prosecution.

25.Point No. 5 :-

In view of the above discussion and findings in point Nos.1 to 3, though the prosecution is able to establish that MOs.1 to 3/Cell phones were

CC No.861 of 2021 12 Dated 29.12.2021.

stolen from the possession of PW1, PW2 and PW5 respectively without their consent, but the prosecution failed to establish that accused dishonestly retained or received the said Cell phones, by knowing that the said Cell phones are stolen properties. Therefore, the court holds that the prosecution failed to establish all the essential ingredients of Section 411 of Indian Penal

Code, to bring home the guilt of accused for the said offence, beyond the reasonable doubt. Accordingly, the point No.5 is answered against the prosecution and in favour of the accused.

26.In the result, the accused is found not guilty for offence punishable under Section 379 or 411 of Indian Penal Code. Therefore, he is acquitted under Section 248(1) of Criminal Procedure Code for the said offences. The Superintendent, District Jail, Ananthapuramu shall forthwith release the accused, if he is not required in any other case.

The MOs1 to 3 were already given to the interim custody of PW1,

PW2 and PW5 respectively. Hence, the said interim custody of case properties shall holds good and become absolute and MOs.1 to 3 are ordered to be retained by PW.1, PW2 and PW5, after expiry of appeal time.

Typed to my dictation by the Typist, corrected and pronounced by me in the open Court this the 29 th day of December, 2021.

Sd/- A.Omkar,

I Additional Judicial Magistrate of First Class, Ananthapuramu. FAC Spl. Judicial Magistrate of First Class (Mobile) for trial of cases under PCR Act, Ananthapuramu.

APPE NDIX OF EVIDENCE

witnesses examined

For Prosecution: For Defence:

P.W.1 R.Ramanjineyulu. None P.W.2Shaik Noorjahan. P.W.3A.Subahan (mediator).

CC No.861 of 2021 13 Dated 29.12.2021.

P.W.4D.Anand Kumar (mediator). P.W.5C.Narayana. P.W.6R.PrathapReddy,InspectorofPolice, Ananthapuramu I Town Police Station. P.W.7V.Reddappa, Inspector of Police, Ananthapuramu III Town Police Station.

DOCUMENTS MARKED

For prosecution:

ExhibitsDescription Ex.P1Complaint of PW1, dated 29.08.2021. Ex.P2Signature of PW3 on certified copy of confession, arrest and seizure mahazarnama, dated 30.08.2021 at 10.00 Am., Ex.P3Signature of PW4 on confession, arrest and seizure mahazarnama, dated 30.08.2021 at 10.00 Am., Ex.P4Certified copy of mahazarnama, dated 30.08.2021. Ex.P5Original First Information Report, dated 29.08.2021. Ex.P6Rough Sketch of the scene of offence.

For Defence: Nil

MATERIAL OBJECTS MARKED

For prosecutionFor defence MO1MOTO E7 Cell Phone Nil

MO2OPPO A15 Cell phone.

MO3MI Cell phone

Sd/- A.Omkar,

I Additional Judicial Magistrate of First Class, Ananthapuramu. FAC Spl. Judicial Magistrate of First Class (Mobile) for trial of cases under PCR Act, Ananthapuramu.

//True Copy//

I Additional Judicial Magistrate of First Class,

Ananthapuramu.

FAC Spl. Judicial Magistrate of First Class

(Mobile) for trial of cases under PCR Act,

Ananthapuramu.

CC No.861 of 2021 14 Dated 29.12.2021.

CALENDAR CASES TRIED

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS

(MOBILE) FOR TRIAL OF CASES UNDER PCR ACT, ANANTHAPURAMU.

Calendar Case No.861 of 2021

Complainant : Inspector of Police, Ananthapuramu III Town Police Station

Crime No.394 of 2021 of Ananthapuramu III Town Police Station.

Boggu Murali @ Buddu, aged 23 years, S/o Boggu Selvaraju, R/o D.No.8/543, Gandhi Nagar,

Dharmavaram Town... Accused

Date of Report or Apprehen Released Commen Close of Sentence

Offence Complaint sion of on bail cement of trial Order

accused trial

29.08.2021 29.08.2021 30.08.2021---15.12.2021 28.12.202129.12.2021

Offence :-Under section 379 or 411 of Indian Penal Code.

Finding :- Found not guilty.

Sentence of Order:- In the result, the accused is found not guilty for offence punishable under Section 379 or 411 of Indian Penal Code. Therefore, he is acquitted under Section 248(1) of Criminal Procedure Code for the said offences. The Superintendent, District Jail, Ananthapuramu shall forthwith release the accused, if he is not required in any other case.

The MOs1 to 3 were already given to the interim custody of PW1, PW2 and PW5 respectively. Hence, the said interim custody of case properties shall holds good and become absolute and MOs.1 to 3 are ordered to be retained by PW.1, PW2 and PW5, after expiry of appeal time.

Sd/- A.Omkar,

I Additional Judicial Magistrate of First Class, Ananthapuramu. FAC Spl. Judicial Magistrate of First Class (Mobile) for trial of cases under PCR Act, Ananthapuramu.

Copy Submitted :-

1. The Hon’ble First Additional District and Sessions Judge, Ananthapuramu.

2. The Superintendent of Police, Ananthapuramu.

//True Copy//

I Additional Judicial Magistrate of First Class,

Ananthapuramu.

FAC Spl. Judicial Magistrate of First Class

(Mobile) for trial of cases under PCR Act,

Ananthapuramu.

DIS.No._____________, Dt._________________.

C.C. No.862 of 2021 1 Dated 22.12.2021

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS

(MOBILE) FOR TRIAL OF CASES UNDER PCR ACT, ANANTHAPURAMU.

Present: Sri A.Omkar,

I Additional Judicial Magistrate of First Class,

Ananthapuramu.

FAC Special Judicial Magistrate of First Class (Mobile) for trial of

Cases under PCR Act, Ananthapuramu.

Wednesday, this the 22 nd day of December, 2021.

Calendar Case No. 862 of 2021

(Crime Numbers 387 and 388 of 2021 of Ananthapuramu III Town Police Station)

Between:

The State of Andhra Pradesh represented by the Sub-Inspector of Police, Ananthapuramu III Town Police station.

..Complainant

And

Shaik Mahaboob Basha, aged 44 years, S/o Shaik Hameed, R/o D.No.20-407, Lonikota, Dharmavaram

Town, Ananthapuramu District....Accused

This case is coming on 21.12.2021 before me for final hearing in the presence of learned Assistant Public Prosecutor, for the Complainant and of Kum. V.Vijaya, learned Legal Aid Counsel for the accused and upon hearing and having stood over for consideration to this day, the court delivers the following:

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

1.The State represented through Y.Nagamadhu(PW4/LW5), the

Sub-Inspector of Police, Ananthapuramu III Town police station filed combined charge sheet against the accused in crime Nos.387 and 388 of 2021 of Ananthapuramu III Town Police station, for the offence punishable under Section 379 or 411 of Indian Penal Code.

2.The case of the prosecution alleged against the accused are as follows:

C.C. No.862 of 2021 2 Dated 22.12.2021

On 22.08.2021 at about 9.45 Am., some unknown offenders committed theft of Honda Activa Scooty bearing registration No.AP-02-AX- 1659, worth Rs.45,000/- belonging to R.Vanaja (PW1/LW1), when she parked the same at in front of RTC bus stand, Ananthapuramu town. Basing on the report of R.Vanaja(PW1/LW1), Y.Nagamadhu(PW4/LW5), the Sub-Inspector of

Police of Ananthapuramu III Town Police station, registered a case in crime

No.387 of 2021 for the offence punishable under Section 379 of Indian Penal

Code on 25.08.2021 at about 11.30 Am., and investigated into.

Further on 24.08.2021 between 8.30 Am., to 01.40 Pm., some unknown offender has committed theft of Honda Activa Scooty bearing registration No.AP-02-AT-0435, worth of Rs.30,000/- belonging to A.Amani

Reddy(PW2/LW2), when she parked the same at RTC bus stand,

Ananthapuramu town. Basing on the report of A.Amani Reddy(PW2/LW2),

Y.Nagamadhu(PW4/LW5), Sub-Inspector of Police of Ananthapuramu III Town

Police Station, registered a case in crime No.388/2021 for the offence punishable under section 379 of Indian Penal Code on 25.08.2021 at about 1.30 Pm., and investigated into. He examined PW1, PW2 and other witnesses and recorded their statements, visited the scene of offence and prepared rough sketch of the scene.

During the course of investigation, on 26.08.2021 at about 7.30 Am., Y.Naga Madhu(PW4/LW5), the Sub-Inspector of Police,

Ananthapuramu III Town Police Station received reliable information, he secured the presence of PW2 and LW4/Namala Chandra Mouli and proceeded to Market Yard, Gooty Road, Ananthapuramu town and arrested the accused in this Crime and seized 3 stolen properties/motor cycles concerned to this case and some other crimes, from the possession of accused under cover of mediator report duly attested by two mediators, i.e, K.Venkata Prasad,

VRO(PW2/LW3) and N.Chandra Mouli (LW4). On the same day at about 5.20

Pm., he produced the accused in this case before the Court for judicial

C.C. No.862 of 2021 3 Dated 22.12.2021

remand. Therefore, the accused is liable for punishment for the offence punishable under Section 379 or 411 of Indian Penal Code.

3.On 29.11.2021, this court took cognizance of case against the accused for the offence punishable under Section 379 or 411 of Indian penal

Code.

4.On 06.12.2021, accused is produced from District Jail,

Ananthapuramu. Copies of documents were furnished to him as contemplated under section 207 of Criminal Procedure Code.

5.On 09.12.2021, accused was examined under section 239 of

Criminal Procedure Code in Telugu, for which he denied. After hearing both sides and on considering the entire record, a charge for the offence punishable under section 379 and an alternative charge for the offence punishable under section 411 of Indian penal Code were framed against him.

The same were read over and explained to him in Telugu, for which he denied the allegations, pleaded not guilty and claimed to be tried. Thus, the case was posted for trial.

6.During the course of trial, prosecution has examined LWs.1, 3, 2 and 5 as PWs 1 to 4 respectively and got marked Exs.P1 to P8 besides MO1 and MO.2. The learned Assistant Public Prosecutor has given the remaining evidence i.e., LW4/Namala Chandra Mouli(mediator). Accordingly, the prosecution side evidence was closed.

7.On 21.12.2021 after closure of prosecution evidence, the accused was examined under Section 313 of Criminal Procedure Code by explaining the incriminating prosecution evidence in question form in Telugu, for which he denied and reported that there is no defence evidence.

C.C. No.862 of 2021 4 Dated 22.12.2021

8. Heard arguments of the learned Assistant Public Prosecutor and learned legal aid/defence counsel. Perused the entire record.

9.Now the Points for determination are:

1. Whether the prosecution is able to establish that PW1 and PW2 were in possession of MOs.1 and 2 motor cycles respectively and the same was stolen from their possession prior to the alleged recovery made on

26.08.2021, beyond the reasonable doubt?

2. Whether the prosecution is able to establish that MOs1 and 2/motor cycles were recovered from the possession of the accused, beyond the reasonable doubt?

3. Whether the prosecution is able to establish that the accused had dishonestly received or retained MOs.1 and 2/motor cycles by knowing or having reason to believe that MO.1 and 2/motor cycles are stolen

properties, beyond the reasonable doubt?

4. Whether the prosecution is able to establish that the accused has committed theft of MOs1 and 2/ motor cycles from the possession of PWs1 and 2 respectively and committed an offence punishable under section 379 of Indian Penal Code, beyond the reasonable doubt?

5. Whether the prosecution is able to establish the guilt of the accused for an offence punishable under Section 411 of Indian Penal Code, beyond the reasonable doubt?

10. In order to substantiate its case, prosecution has examined Four witnesses out of Five listed witnesses as PWs1 to 4 and got marked Exs.P1 to

P8 besides MO1 and MO.2. PW1is the defacto complainant in

Cr.No.387/2021. Ex.P1 is written complaint given by PW1, dated 25.08.2021. PW2 is one of the mediator, who is said to have accompanied by the police at the time of arrest and seizure of MOs1 and 2. Ex.P2 is mediator report, dated 26.08.2021 at 7.30 Am., pertaining to arrest and seizure. Ex.P3 is mediator report, dated 26.08.2021 at 9.30 Am., pertaining to seizure. PW3 is the defacto-complainant in Cr.No.388/2021. Ex.P4 is written complaint given by PW2, dated 25.08.2021. PW4 is the Sub-

C.C. No.862 of 2021 5 Dated 22.12.2021

Inspector of Police of Ananthapuramu III Town Police station, who registered and investigated the cases and produced the accused before the Court and filed charge sheet.Ex.P5is Original first information report in

Cr.No.387/2021 dated 25.08.2021. Ex.P6 is rough sketch of scene of offence in Cr.No.387/2021. Ex.P7 is Original first information report in

Cr.No.388/2021, dated 25.08.2021. Ex.P8 is rough sketch of scene of offence in Cr.No.388/2021 respectively. M.O.1 is Honda Activa motor cycle bearing registration No.AP21AX1659. MO.2 is Honda Activa Scooty bearing registration No.AP02AT0435.

11.The stand of the accused is of total denial. No evidence is adduced on his behalf.

12.The learned Assistant Public Prosecutor argued that the evidence of PW1 and PW3 coupled with the contents of Exs.P1 and P4/complaints establishes that MOs1 and 2/ motor cycles were stolen from the possession of PW1 and PW3 and that the evidence of PW2 and PW4 further establishes that the accused has stolen the same and had dishonestly retained the said stolen properties for wrongful gain and therefore, the accused is liable for conviction for the offence punishable under Section 379 or 411 of Indian

Penal Code.

13.On the other hand, the learned legal aid/defence counsel argued that there is no direct evidence to establish that the accused has committed theft of those motor cycles from the possession of PWs1 and 3 and further, non-examination of the independent mediator i.e., LW4/Namala Chandra

Mouli and furthermore, PW4 failed to secure local inhabitants as mediators and collect the CC footage of the scene of offence or the place of seizure and as, he failed to follow the procedure laid under law at the time of arrest and seizure, the accused is entitled for the benefit of doubt.

C.C. No.862 of 2021 6 Dated 22.12.2021

14.In view of these rival contentions, the entire evidence is perused.

15.Point No. 1 :-

The evidence of P.W.1, the defacto complainant in

Cr.No.387/2021 goes to shows that on 22.08.2021 at about 9.45 A.M., she went to RTC bus stand, Ananthapuramu on her Honda Activa motor cycle bearing registration No.AP21AX1659(MO.1) to receive her daughter. After she came out of the bus stand and found that her motor cycle was missing and then, she searched for her vehicle in the surrounding areas but in vain.

On 25.08.2021, she gave report, i.e., Ex.P1 in Ananthapuramu III Town Police station. Her evidence further shows that after some days, she came to know about the recovery of her property. She identified the Honda Activa motor cycle bearing registration No.AP21AX1659 before the Court, as the vehicle stolen from her possession and the same is marked as M.O.1. and the same was given to the interim custody of PW1 after obtaining requisition under proper acknowledgment.

16.The evidence of P.W.3, the defacto complainant in

Cr.No.388/2021 goes to shows that on 24.08.2021 at about 8.30 A.M., she went to RTC bus stand, Ananthapuramu and parked her Honda Activa Scooty bearing registration No.AP02AT0435(MO.2) and went to Pamidi. Later, at about 1.40 Pm., she returned from Pamidi and found that her Scooty was missing and then, she searched for her vehicle in the surrounding areas but in vain. On 25.08.2021, she gave complaint, i.e., Ex.P4 in Ananthapuramu III

Town Police station. Her evidence further shows that after some days, she came to know about the recovery of her property/Honda Activa Scooty. She identified the Honda Activa Scooty bearing registration No.AP02AT0435

before the Court, as the vehicle stolen from her possession and the same is

marked as M.O.2 and the same was given to the interim custody of PW3 after obtaining requisition under proper acknowledgment. No inconsistencies

C.C. No.862 of 2021 7 Dated 22.12.2021

were elicited, to suspect the credibility of PW1 and PW3 evidence. Their evidence is corroborative to the contents of Ex.P1 and P4 complaints respectively. So, the court finds no reason to disbelieve their evidence.

17.The evidence of PW4 also corroborates the versions of PW1 and

PW3 with regard to giving reports(Ex.P1 and P2). His evidence further shows about registration of case in crime Nos.387 and 388 of 2021 of

Ananthapuramu III Town Police Station under Section 379 of Indian Penal

Code, issuance of first information reports, I.e, Ex.P5 and P7, examination of

PW1, PW2 and other witnesses, recording of their statements and preparation of rough sketches of scene of offence(Ex.P6 and P8). Except putting suggestion that false case was registered for statistical purpose, which was denied by PW4, nothing was elicited to discard the evidence of

PW4 in this aspect. Moreover, not even a suggestion was given to PW1 and 3 by disputing the factum of theft of MOs1 and 2/motor cycles from their possession. Thus, the court finds no reason to disbelieve the evidence of

PWs1 and 3 supported by PW4.

18.Further, no one including the accused disputed that PW1 and

PW3 are owners of those motor cycles(MO1 and MO2) or claimed the said property as their own. In such circumstances, the court is of the view that the evidence of PWs1, 3 and PW4 coupled with the contents of Exs.P1 and 4/ complaints clinchingly establishes that MOs1 and 2/ motor cycles belongs to

PW1 and PW3 and the same were stolen from their possession, prior to the alleged recovery made on 26.08.2021, beyond the reasonable doubt.

Accordingly, the point No.1 is answered in favour of the prosecution.

19. Point No.2 and 3:-

Now, it has to be seen as to whether the prosecution is able to establish that the said stolen properties (MO1 and MO2) were recovered from the possession of the accused. To prove this aspect, the prosecution

C.C. No.862 of 2021 8 Dated 22.12.2021

has examined PW2 and PW4 and got marked Ex.P2, P3, P5 to Ex.P8. Among them, PW2 is the one of the mediator and PW4 Sub-Inspector of Police,

Ananthapuramu III Town Police Station is the investigation officer. According to PW4, on receiving credible information on 26.08.2021 at around 7.30 am., he secured two mediators, i.e., PW2 and LW4/Namala Chandra Mouli through his staff and proceeded along with his staff to Market yard, Gooty Road,

Ananthapuramu, where they conducted vehicle checking and they found the accused on suspicious manner, on seeing them, the accused tried to skulk away from that place. Then, PW4 with the assistance of his staff caught hold of the accused and on interrogation, the accused was voluntarily confessed about his commission of theft of four motor cycles at different places in

Ananthapuramu including the MO.1 and MO.2, on verification of the vehicle bearing registration No.AP-02-AX-1659 relating to this case, as well as the commission of the other offences. His evidence further shows that in pursuance of the confession of the accused, he proceeded to thorny bushes besides burial ground, market yard, Gooty road, Ananthapuramu at about 9.30 Am., and seized those motor cycles related to the present case and other crimes of Ananthapuramu III Town and I Town Police Stations, he identified MO.1 and MO.2 as stolen properties, which are produced by the accused, under the cover of the mediator report (Ex.P2) at 9.30a.m, in the presence of the same mediators and after following due formalities, he produced the accused in this Crime, before the court for judicial remand. He informed about the motor cycles to concerned police stations and handed over those motor cycles to them.

20.On perusal of the evidence of PW2 who is official witness, he deposed that he acted as mediator on the request of Police and accused confessed before his presence and also vehicles were seized in his presence and he put his signatures on Ex.P2 and Ex.P3 mediator and property seizure reports. But during the course of cross examination he deposed that he did

C.C. No.862 of 2021 9 Dated 22.12.2021

not receive any notice or written summons from the Police to act as mediator. He also admitted that he acted as mediator in all courts more than in 10 crimes. Even though he denied the suggestion that he is a stock witness to the Police, but his admission of deposing evidence in all courts nearly 10 crimes raising a serious doubt upon the veracity of his evidence unless it is corroborated by another evidence. Hence, this court could not believe the evidence of PW2 as who is stock witness to crimes registered by the Police.

21.The learned Assistant Public Prosecutor argued that the evidence of PW2 to PW4 which establishes the recovery of stolen properties from the possession of the accused, need not be discarded for the reason of non- examination of another independent mediator. Though there is some force in the said contention, it is to be noted that PW2 is the official witness and PW4 is the Police official and the alleged recovery was not made subsequent to confession alleged to be made by the Accused. So, the contents of the said certified copy of mediator reports (Ex.P2 and Ex.P3) are not even admissible under Section 27 of Indian Evidence Act. Since, there is non examination of another independent mediator, the contents of the said certified copy of mediator reports are hit by Section 25 and 26 of Indian Evidence Act and the same cannot be considered. In such circumstances, when there is no direct and circumstantial evidence, the Court feels that it is highly unsafe to rely upon the sole testimony of PW4.

22.At this juncture, it is pertinent to note the decision in Botcha

Raju and State represented by the Inspector of police, Vizianagaram Rural

Circle reported in 1994(2) ALT (Crl.) 69 (AP), wherein the Hon'ble High

Court of Andhra Pradesh held in para 2 as follows:

“… The evidence of PW3, PW8 and PW9, who are all police officers, cannot be easily believed without proper corroboration by disinterested witnesses. As such, the

C.C. No.862 of 2021 10 Dated 22.12.2021

Courts below fell in error by accepting the version of police officers without the corroboration of disinterested witnesses mentioned above. No particular motive is made out against the above witnesses, who turned hostile, so as to say, that they are specially interested in the petitioner to bail him out of the offence”.

23.In the light of the above decision, in the absence of circumstantial evidence and also the direct witnesses including the defacto- complainants i.e., PW1 and PW3, the Court is of the view that it is highly unsafe to rely upon the sole testimony of PW4 with regard to the recovery of

MO.1 and MO.2 from the possession of the Accused.

24.For the foregoing reasons, the Court finds no convincing and satisfactory evidence to hold that the prosecution failed to establish the alleged recovery of stolen properties from the possession of the accused, the question as to whether the accused had knowledge that the said MO.1 and

MO.2/Honda Activa motor cycles are stolen properties or not, does not arise.

Accordingly, the points No.2 and 3 are answered against the prosecution and in favour of the accused.

25. Point No.4 :-

On coming to the charge for the offence punishable under section 379 of Indian Penal Code, it has to be seen as to whether the prosecution is able to establish that the accused has committed theft of

MO.1 and MO.2 i.e., Honda Activa motor cycles. Admittedly, PW.1 and PW3, except the PW2 and PW4 or any other witnesses did not identify the accused is the person who committed theft. Apparently, PW4 did not seize or secure any incriminating material such as finger prints of the accused or collect the

CC footage of the alleged scene of offence and place of seizure, in order to prove the accused is the thief or to connect the accused to the commission of offence. Further, there is non-examination of independent mediator even to the alleged recovery of MO.1 and MO.2/Honda Activa motor cycles from

C.C. No.862 of 2021 11 Dated 22.12.2021

the possession of the accused and the alleged confession said to be made by the accused.

Admittedly, PW4 failed to secure local inhabitants at the place of seizure i.e., Market yard, Gooty Road, Ananthapuramu town is a busy locality. Thus, in the absence of any direct and circumstantial evidence to connect the accused to the commission of offence, the Court is not even able to draw any adverse presumption under section 114 of Evidence Act against the accused to conclude that he committed theft of MO.1 and MO.2.

Therefore, the Court finds no convincing and satisfactory evidence to hold that the accused has committed an offence punishable under section 379 of

Indian Penal Code. Hence, the Court holds that the prosecution failed to establish the guilt of the accused for the offence punishable under section 379 of Indian Penal Code, beyond the reasonable doubt. Accordingly, the point No.4 is answered in favour of the Accused against the prosecution.

26.Point No. 5 :-

In view of the above discussion and findings in point No.(1) to (4), though the prosecution is able to establish that MO.1 and MO.2/Honda

Activa motor cycles were stolen from the possession of PW1 and PW3 without their consent, the prosecution failed to establish that accused had dishonestly retained or received the said motor cycles, by knowing that the said motor cycles are stolen properties. Therefore, the court holds that the prosecution failed to establish all the essential ingredients of Section 411 of

Indian Penal Code, to bring home the guilt of the accused for the said offence, beyond the reasonable doubt. Accordingly, the point No.5 is answered against the prosecution and in favour of the Accused.

27.In the result, the accused is found not guilty for offence punishable under Section 379 or 411 of Indian Penal Code. Therefore, he is acquitted under Section 248(1) of Criminal Procedure Code for the said

C.C. No.862 of 2021 12 Dated 22.12.2021

offences. The Superintendent, District Jail, Ananthapuramu shall forthwith release the Accused, if he is not required in any other case.

The MOs1 and 2 were already given to the interim custody of

PW1 and PW3 respectively. Hence, the said interim custody of case properties shall holds good and become absolute and MOs.1 and 2 are ordered to be retained by PW.1 and PW3, after expiry of appeal time.

Typed to my dictation by the Typist, corrected and pronounced by me in the open Court this the 22 nd day of December, 2021.

Sd/- A.Omkar,

I Additional Judicial Magistrate of First Class, Ananthapuramu. FAC Spl. Judicial Magistrate of First Class (Mobile) for trial of cases under PCR Act, Ananthapuramu.

APPE NDIX OF EVIDENCE

witnesses examined

For Prosecution: For Defence:

P.W.1 R.Vanaja. None P.W.2Karanam Venkata Prasad, VRO, (mediator). P.W.3A.Amani Reddy. P.W.4Y.Naga Madhu, Sub-Inspector of Police, Ananthapuramu III Town Police Station.

DOCUMENTS MARKED

For prosecution:

ExhibitsDescription Ex.P1Report of PW1 in Cr.No.387/2021, dated 25.08.2021. Ex.P2Mediator report, dated 26.08.2021, at 7.30 Am., pertaining to arrest and seizure. Ex.P3Mediator report, dated 26.08.2021, at 9.30 Am., pertaining to seizure. Ex.P4Report of PW1 in Cr.No.388/2021, dated 25.08.2021. Ex.P5Original First Information Report in Cr.No.387/2021, dt.25.08.2021 of Ananthapuramu III Town Police Station. Ex.P6Rough Sketch of the scene of offence in Cr.No.387/2021. Ex.P7Original First Information Report in Cr.No.388/2021, dt.25.08.2021 of Ananthapuramu III Town Police Station. Ex.P8Rough Sketch of the scene of offence in Cr.No.388/2021.

For Defence: Nil

C.C. No.862 of 2021 13 Dated 22.12.2021

MATERIAL OBJECTS MARKED

For prosecutionFor defence MO1Honda Activa motor cycle bearing registrationNil No.AP21AX1659.

MO2Honda Activa Scooty bearing registration No.AP02AT0435.

Sd/- A.Omkar,

I Additional Judicial Magistrate of First Class, FAC Spl. Judicial Magistrate of First Class (Mobile) for trial of cases under PCR Act, Ananthapuramu.

//True copy//

I Additional Judicial Magistrate of First Class,

Ananthapuramu.

FAC Spl. Judicial Magistrate of First Class

(Mobile) for trial of cases under PCR Act,

Ananthapuramu.

C.C. No.862 of 2021 14 Dated 22.12.2021

CALENDAR CASES TRIED

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS

(MOBILE) FOR TRIAL OF CASES UNDER PCR ACT, ANANTHAPURAMU.

Calendar Case No.862 of 2021

Complainant :Sub-Inspector of Police, Ananthapuramu III Town Police Station Crime Nos.387 and 388 of 2021 of Ananthapuramu III Town Police Station.

Shaik Mahaboob Basha, aged 44 years, S/o Shaik Hameed, R/oD.No.20-407,Lonikota,DharmavaramTown, Ananthapuramu District.

Date of Report or Apprehen Released Commen Close of Sentence

Offence Complaint sion of on bail cement of trial Order

accused trial

22.08.202125.08.2021 26.08.2021----15.12.2021 20.12.2021 22.12.2021 & 25.08.2021

Offence :-Under section 379 or 411 of Indian Penal Code.

Finding :- Found not guilty.

Sentence of Order:-

In the result, the accused is found not guilty for offence punishable under Section 379 or 411 of Indian Penal Code. Therefore, he is acquitted under Section 248(1) of Criminal Procedure Code for the said offences. The Superintendent, District Jail, Ananthapuramu shall forthwith release the Accused, if he is not required in any other case.

The MOs1 and 2 were already given to the interim custody of PW1 and PW3 respectively. Hence, the said interim custody of case properties shall holds good and become absolute and MOs.1 and 2 are ordered to be retained by PW.1 and PW3, after expiry of appeal time.

Sd/- A.Omkar,

I Additional Judicial Magistrate of First Class, Ananthapuramu. FAC Spl. Judicial Magistrate of First Class (Mobile) for trial of cases under PCR Act, Ananthapuramu. Copy Submitted :-

1. The Hon’ble First Additional District and Sessions Judge, Ananthapuramu.

2. The Superintendent of Police, Ananthapuramu.

//True copy//

I Additional Judicial Magistrate of First Class,

Ananthapuramu.

FAC Spl. Judicial Magistrate of First Class

(Mobile) for trial of cases under PCR Act,

Ananthapuramu.

DIS.No._____________, Dt._________________.

C.C. No.860 of 2021 1 Dated 22.12.2021

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS

(MOBILE) FOR TRIAL OF CASES UNDER PCR ACT, ANANTHAPURAMU.

Present: Sri A.Omkar,

I Additional Judicial Magistrate of First Class,

Ananthapuramu.

FAC Special Judicial Magistrate of First Class (Mobile) for trial of

Cases under PCR Act,

Ananthapuramu.

Wednesday, this the 22 nd day of December, 2021.

Calendar Case No. 860 of 2021

(Crime Number 365 of 2021 of Ananthapuramu III Town Police Station)

Between:

The State of Andhra Pradesh represented by the Sub-Inspector of Police, Ananthapuramu III Town Police station.

..Complainant

And

Mulla Dada Khalandar @ Dadu, aged 29 years, S/o Late Nazeer Sab, R/o SC Colony, 1st Road,

Kalyanadurgam Town....Accused

This case is coming on 21.12.2021 before me for final hearing in the presence of learned Assistant Public Prosecutor, for the Complainant and of Sri B.Anil Kumar, learned Legal Aid Counsel for the accused and upon hearing and having stood over for consideration to this day, the court delivers the following:

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

1.The State represented through C.Venkateswarlu(PW3/LW6), the

Sub-Inspector of Police, Ananthapuramu III Town police station filed charge sheet against the accused in crime No.365 of 2021 of Ananthapuramu III

Town Police station, for the offences punishable under Sections 457, 380 or 411 of Indian Penal Code.

2.The case of the prosecution alleged against the accused is as follows:

C.C. No.860 of 2021 2 Dated 22.12.2021

On 04.08.2021 between 9.00 Pm., to 05.08.2021 at 9.00 Am., some unknown offenders gained entry by breaking the locks of shop shutter of N.Lakshmi Narayana(PW1/LW1) situated at Srinivasa Nagar,

Ananthapuramu town and committed theft of old electronic goods i.e., 1.Redirect 40 Inch LCD TV, 2.Samsung 22 Inch LCD TV, 3.Panasonic 20 Inch

LCD TV, 4.Samsung gold colour android mobile phone, 5.Redmi Blue colour android mobile phone and 6.JIO Black colour key pad mobile phone total worth Rs.20,000/- (Rupees Twenty thousand Only) belonging to N.Lakshmi

Narayana(PW1/LW1) and escaped with booty. In this connection, basing on the report of PW1, C.Venkateswarlu(PW3/LW6), Sub-Inspector of Police,

Ananthapuramu III Town Police station registered a case in crime No.365 of 2021 for the offences punishable under Sections 457 and 380 of Indian Penal

Code on 05.08.2021 at 4.00 P.m., he issued First Information Report and submitted its copies to all the concerned officers and investigated. During the course of investigation, he examined three witnesses, recorded their statements, visited the scene of offence and prepared rough sketch of the scene. Further, on 07.08.2021 he received credible information and secured the presence of K.Venkata Prasad(PW2/LW4) and LW5/Namala Chandra Mouli went to Railway Station near cycle stand, Ananthapuramu town with the assistance of other staff, he arrested the accused and seized stolen properties concerned to this crime and another crime relating to

Kalyanadurgam town Police Station, from the possession of the accused under cover of mediator report in the presence of mediators i.e., K.Venkata

Prasad(PW2/LW4) and Namala Chandra Mouli(LW5). He produced the accused before this Court on 07.08.2021 at about 5.05 Pm., for judicial remand. After completion of investigation, he filed charge sheet. Therefore, accused is liable punishment for the offences punishable under Sections 457, 380 or 411 of Indian Penal Code.

C.C. No.860 of 2021 3 Dated 22.12.2021

3.On 29.11.2021, this court took cognizance of case against the accused for the offences punishable under Sections 457, 380 or 411 of

Indian penal Code.

4.On 08.12.2021, accused is produced from District Jail,

Ananthapuramu. Copies of documents were furnished to him as contemplated under section 207 of Criminal Procedure Code.

5.On 09.12.2021, the accused was examined under Section 239 of

Criminal Procedure Code in Telugu, for which he denied. After hearing both sides and on perusing the entire case record, charges for the offences punishable under Sections 457, 380 of Indian Penal Code and an alternative charge for the offence punishable under section 411 of Indian Penal Code were framed against the accused. The said charges were read over and explained to him in Telugu, for which he denied the same, pleaded not guilty and also claimed to be tried. Thus, the case was posted for trial.

6.During the course of trial, prosecution has examined Lws.1, 4 and 6 as PWs 1 to 3 respectively and got marked Exs.P1 to P5 besides MO1 to MO6. The learned Assistant Public Prosecutor has given the remaining evidence i.e., LW2/G.Chennakesavulu, LW3/K.Adinarayana and LW5/Namala

Chandra Mouli(mediator). Accordingly, the prosecution side evidence was closed.

7.On 21.12.2021 after closure of prosecution evidence, the accused was examined under Section 313 of Criminal Procedure Code by explaining the incriminating prosecution evidence in question form in Telugu, for which he denied and reported that there is no defence evidence.

8. Heard arguments of the learned Assistant Public Prosecutor and learned legal aid/defence counsel. Perused the entire record.

C.C. No.860 of 2021 4 Dated 22.12.2021

9.Now the Points for determination are:

1. Whether the prosecution is able to establish that on 04.08.2021 and 05.08.2021, M.Os 1 to 6 were stolen from the shop/possession of PW1 or not?

2. Whether the prosecution is able to establish that M.Os 1 to 6 were recovered from the possession of accused, beyond the reasonable beyond the reasonable doubt?

3. Whether the prosecution is able to establish that accused had dishonestly received or retained the said stolen properties, i.e., M.Os 1 to 6 by knowing or having reason to believe that those items are stolen properties beyond the reasonable doubt?

4. Whether the prosecution is able to establish that the accused had committed lurking house/shop trespass by night, in order to commit theft in the shop of PW1 and thereby committed an offence punishable under section 457 of Indian Penal Code, beyond the reasonable doubt?

5. Whether the prosecution is able to establish that the accused had dishonestly taken away the movable properties i.e. M.O.1 to 6 from the shop of PW1, without his consent for unlawful gain or to cause loss to PW1 and thereby committed an offence punishable under section 380 of Indian Penal Code, beyond the reasonable doubt?

6. Whether the prosecution is able to establish the guilt of accused for offence punishable under Section 411 of Indian Penal Code, beyond the reasonable doubt?

10. In order to substantiate its case, prosecution has examined three witnesses out of six listed witnesses as PWs1 to 3 and got marked Exs.P1 to

P5 besides MO1 to MO6. PW1 is defacto complainant, who lodged the complaint. Ex.P1 is complaint of PW1, dated 05.08.2021. PW2 is one of the mediator, who accompanied the police at the time of arrest and seizure.

Ex.P2 is mediator report, dated 07.08.2021 at 9.00 Am., pertaining to arrest and seizure. Ex.P3 is mediator report, dated 07.08.2021 at 11.00 Am., pertaining to seizure. PW3 is the Sub-Inspector of Police, Ananthapuramu III

Town Police station, who registered and investigated into the case. Ex.P4 is

First Information Report, dated 05.08.2021. Ex.P5 is rough sketch of scene.

C.C. No.860 of 2021 5 Dated 22.12.2021

MO1 is Reconnect LED TV. MO2 is Samsung LED TV. MO3 is Panasonic

LED TV. MO4 is Samsung mobile phone. MO5 is Redmi mobile phone. MO6 is JIO key pad mobile phone.

11.The stand of the accused is of total denial. He contended by way of suggestion that the police foisted a false case against him for disposal of undetected cases. No evidence was adduced on his behalf.

12.The learned Assistant Public Prosecutor argued that the evidence of PW1 and PW3 coupled with the contents of Ex.P1/complaint establishes that MOs1 to 6/old electronic goods were stolen from the possession of PW1 and that the evidence of PW2 and PW3 further establishes that the accused has stolen the same and had dishonestly retained the said stolen properties for wrongful gain and therefore, the accused is liable for conviction for the offences punishable under Sections 457, 380 or 411 of Indian Penal Code.

13.On the other hand, the learned legal aid/defence counsel argued that there is no direct evidence to establish that the accused has committed theft of MO1 to MO6/old electronic goods from the possession of PW1 and further, non-examination of independent mediator i.e., LW4/Namala Chandra

Mouli and furthermore, PW3 failed to secure local inhabitants as mediators and collect the CC footage of the scene of offence or the place of seizure and as, he failed to follow the procedure laid under law at the time of arrest and seizure, the accused is entitled for the benefit of doubt.

14.In view of these rival contentions, the entire evidence is perused.

15.Point No. 1 :-

Herein the case, the unchallenged evidence of PW1, the defacto complainant goes to shows that on 04.08.2021 at about 9.00 P.m., he closed the shop and went to his house. On the next day i.e., 05.08.2021 at about 9.00 Am., when he went to his shop and found that the locks of the shutter

C.C. No.860 of 2021 6 Dated 22.12.2021

of his shop was broken and it was slightly opened, immediately he went into the shop and noticed that some unknown offenders committed theft of 1.

Reconnect LED TV, 2.Samsung LED TV, 3. Panasonic LED TV, 4.Samsung mobile phone, 5.Redmi mobile phone and 6.JIO keypad mobile phone(MOs1 to 6) from his shop and on the same day i.e., 05.08.2021, he gave complaint, i.e., Ex.P1. His evidence further goes to show that subsequently, he came to know that the police recovered those properties from the possession of the accused. He identified MOs1 to 6, before the court as the items which were stolen from his shop and the same were given to the interim custody of PW1 after obtaining requisition under proper acknowledgment. No inconsistencies were elicited, to suspect the credibility of PW1 evidence. His evidence is corroborative to the contents of Ex.P1 complaint. So, the court finds no reason to disbelieve his evidence.

16.The evidence of PW3 also corroborates the version of PW1 with regard to giving report(Ex.P1). His evidence further shows about registration of case in crime No.365 of 2021 of Ananthapuramu III Town Police Station for the offences punishable under Sections 457, 380 of Indian Penal Code, issuance of First Information Report, i.e., Ex.P4, examination of PW1 and other witnesses, recording of their statements and preparation of rough sketch of scene of offence(Ex.P5). Except putting suggestion that false case was registered for statistical purpose, which was denied by PW3, nothing was elicited to discard the evidence of PW3 in this aspect. Moreover, not even a suggestion was given to PW1 by disputing the factum of theft of

MOs1 to 6/old electronic goods from his possession. Thus, the court finds no reason to disbelieve the evidence of PW1 supported by PW3.

17.Further, no one including the accused disputed that PW1 is owner of those old electronic goods (MO1 to MO6) or claimed the said properties as their own. In such circumstances, the court is of the view that

C.C. No.860 of 2021 7 Dated 22.12.2021

the evidence of PW1 and PW3 coupled with the contents of Ex.P1/complaint clinchingly establishes that MOs1 to 6/electronic goods belongs to PW1 and the same were stolen from his possession, prior to the alleged recovery made on 07.08.2021, beyond the reasonable doubt. Accordingly, the point

No.1 is answered in favour of the prosecution.

18. Point No.2 and 3:-

Now, it has to be seen as to whether the prosecution is able to establish that the said stolen properties (MO1 to MO6) were recovered from the possession of the accused. To prove this aspect, the prosecution has examined PW2 and PW3 and got marked Ex.P2 to P5. Among them, PW2 is the one of the mediator and PW3 Sub-Inspector of Police, Ananthapuramu III

Town Police Station is the investigation officer. According to PW3, on receiving credible information on 07.08.2021 at around 7.30 am., he secured two mediators, i.e., PW2 and LW5/Namala Chandra Mouli through his staff and proceeded along with his staff to Railway station infront of cycle stand

Ananthapuramu, where they found the accused was sitting on a motor cycle, on seeing them, the accused tried to skulk away from that place. Then, PW3 with the assistance of his staff caught hold of the accused and on interrogation, the accused was disclosed his identity particulars and voluntarily confessed about his commission of theft of electronic goods from

Sudha Electronics shop situated at Sreenivasa Nagar, Ananthapuramu, on verification of the vehicle bearing registration No.AP02-BK-0712 relating to the Cr.No.191/2021 of Kalyanadurg police station, as well as the commission of the other offence. His evidence further shows that in pursuance of the confession of the accused, they proceeded to HLC canal back side of

Muthyalamma temple and there the accused produced three LED TVs and three mobile phones and seized those electronic goods related to the present case and motor cycle relating to the Kalyanadurgam Police Station, he identified MO1 to MO6 as stolen properties, which are produced by the

C.C. No.860 of 2021 8 Dated 22.12.2021

accused, under the cover of the mediator report (Ex.P2) at 9.00 A.m, in the presence of the same mediators and after following due formalities, he produced the accused in this Crime, before the court for judicial remand.

After completion of investigation he filed charge sheet against the accused.

19.On perusal of the evidence of PW2 who is official witness, he deposed that he acted as mediator on the request of Police and accused confessed before his presence and also electronic goods and one motor cycle were seized in his presence and he put his signatures on Ex.P2 and

Ex.P3 mediator and properties seizure reports. But during the course of cross examination he deposed that he did not receive notice or written summons from the Police to act as mediator as well as written permission from

Tahsildar. He also admitted that he acted as mediator in all courts more than in 10 crimes. Even though he denied the suggestion that he is a stock witness to the Police, but his admission of deposing evidence in all courts nearly 10 crimes raising a serious doubt upon the veracity of his evidence unless it is corroborated by another evidence. Hence, this court could not believe the evidence of PW2 as who is stock witness to crimes registered by the Police.

20.The learned Assistant Public Prosecutor argued that the evidence of PW2 and PW3 which establishes the recovery of stolen properties from the possession of the accused, need not be discarded for the reason of non- examination of independent mediator. Though there is some force in the said contention, it is to be noted that PW2 is the official witness and PW3 is the Police official and the alleged recovery was not made subsequent to confession alleged to be made by the Accused. So, the contents of the said mediator reports (Ex.P2 and Ex.P3) are not even admissible under Section 27 of Indian Evidence Act. Since, there is non examination of another independent mediator, the contents of the said mediator reports are hit by

Section 25 and 26 of Indian Evidence Act and the same cannot be

C.C. No.860 of 2021 9 Dated 22.12.2021

considered. In such circumstances, when there is no direct and circumstantial evidence, the Court feels that it is highly unsafe to rely upon the sole testimony of PW3.

21.At this juncture, it is pertinent to note the decision in Botcha

Raju and State represented by the Inspector of police, Vizianagaram Rural

Circle reported in 1994(2) ALT (Crl.) 69 (AP), wherein the Hon'ble High

Court of Andhra Pradesh held in para 2 as follows:

“… The evidence of PW3, PW8 and PW9, who are all police officers, cannot be easily believed without proper corroboration by disinterested witnesses. As such, the

Courts below fell in error by accepting the version of police officers without the corroboration of disinterested witnesses mentioned above. No particular motive is made out against the above witnesses, who turned hostile, so as to say, that they are specially interested in the petitioner to bail him out of the offence”.

22.In the light of the above decision, in the absence of circumstantial evidence and also the direct witnesses including the defacto- complainant i.e., PW1, the Court is of the view that it is highly unsafe to rely upon the sole testimony of PW3 with regard to the recovery of MO.1 to MO.6 from the possession of the Accused.

23.For the foregoing reasons, the Court finds no convincing and satisfactory evidence to hold that the prosecution failed to establish the alleged recovery of stolen properties from the possession of the accused, the question as to whether the accused had knowledge that the said MO.1 to

MO.6/old electronic goods are stolen properties or not, does not arise.

Accordingly, the points No.2 and 3 are answered against the prosecution and in favour of the accused.

C.C. No.860 of 2021 10 Dated 22.12.2021

24. Point No.4 :-

On coming to the charge for the offence punishable under section 380 of Indian Penal Code, it has to be seen as to whether the prosecution is able to establish that the accused has committed theft of

MO.1 to MO.6 i.e., old electronic goods. Admittedly, PW1, except the PW2 and PW3 or any other witnesses did not identify the accused is the person who committed theft. Apparently, PW3 did not seize or secure any incriminating material such as finger prints of the accused or collect the CC footage of the alleged scene of offence and place of seizure, in order to prove the accused is the thief or to connect the accused to the commission of offence. Further, there is non-examination of independent mediator even to the alleged recovery of MO.1 to MO.6/old electronic goods from the possession of the accused and the alleged confession said to be made by the accused.

Admittedly, PW3 failed to secure local inhabitants at the place of seizure i.e., Railway Station, Ananthapuramu town is a busy locality. Thus, in the absence of any direct and circumstantial evidence to connect the accused to the commission of offence, the Court is not even able to draw any adverse presumption under section 114 of Evidence Act against the accused to conclude that he committed theft of MO.1 to MO.6. Therefore, the Court finds no convincing and satisfactory evidence to hold that the accused has committed an offence punishable under section 380 of Indian

Penal Code. Hence, the Court holds that the prosecution failed to establish the guilt of the accused for the offence punishable under section 380 of

Indian Penal Code, beyond the reasonable doubt. Accordingly, the point

No.4 is answered in favour of the Accused against the prosecution.

C.C. No.860 of 2021 11 Dated 22.12.2021

25.Point No. 5 :-

In view of the above discussion and findings in point No.(1) to (4), though the prosecution is able to establish that MO.1 to MO.6/old electronic goods were stolen from the possession of PW1 without his consent, the prosecution failed to establish that accused had dishonestly retained or received the said electronic goods, by knowing that the said old electronic goods are stolen properties. Therefore, the court holds that the prosecution failed to establish all the essential ingredients of Section 411 of

Indian Penal Code, to bring home the guilt of the accused for the said offence, beyond the reasonable doubt. Accordingly, the point No.5 is answered against the prosecution and in favour of the Accused.

26.In the result, the Accused is found not guilty for offences punishable under Sections 457, 380 or 411 of Indian Penal Code. Therefore, he is acquitted under Section 248(1) of Criminal Procedure Code for the said offences. The Superintendent, District Jail, Ananthapuramu shall forthwith release the Accused, if he is not required in any other case.

The MOs1 to 6 were already given to the interim custody of PW1.

Hence, the said interim custody of case properties shall holds good and become absolute and MOs.1 to 6 are ordered to be retained by PW.1, after expiry of appeal time.

Typed to my dictation by the Typist, corrected and pronounced by me in the open Court this the 22 nd day of December, 2021.

Sd/- A.Omkar,

I Additional Judicial Magistrate of First Class, Ananthapuramu. FAC Spl. Judicial Magistrate of First Class (Mobile) for trial of cases under PCR Act, Ananthapuramu.

C.C. No.860 of 2021 12 Dated 22.12.2021

APPE NDIX OF EVIDENCE

witnesses examined

For Prosecution: For Defence:

P.W.1 N.Lakshminarayana. None P.W.2Karanam Venkata Prasad, VRO, (mediator). P.W.3C.Venkateswarlu, Sub-Inspector of Police, Ananthapuramu III Town Police Station.

DOCUMENTS MARKED

For prosecution:

ExhibitsDescription Ex.P1Complaint of PW1, dated 05.08.2021. Ex.P2Mediator report, dated 07.08.2021, at 9.00 Am., pertaining to arrest and seizure. Ex.P3Mediator report, dated 07.08.2021, at 11.00 Am., pertaining to seizure. Ex.P4Original First Information Report, dated 05.08.2021. Ex.P5Rough Sketch of the scene of offence.

For Defence: Nil

MATERIAL OBJECTS MARKED

For prosecutionFor defence MO1Reconnect LED TV.Nil MO2Samsung LED TV. MO3Panasonic LED TV. MO4Samsung mobile phone. MO5Redmi mobile phone. MO6JIO keypad mobile phone.

Sd/- A.Omkar,

I Additional Judicial Magistrate of First Class, Ananthapuramu. FAC Spl. Judicial Magistrate of First Class (Mobile) for trial of cases under PCR Act, Ananthapuramu.

//True copy//

I Additional Judicial Magistrate of First Class,

Ananthapuramu.

FAC Spl. Judicial Magistrate of First Class

(Mobile) for trial of cases under PCR Act,

Ananthapuramu.

C.C. No.860 of 2021 13 Dated 22.12.2021

CALENDAR CASES TRIED

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS

(MOBILE) FOR TRIAL OF CASES UNDER PCR ACT, ANANTHAPURAMU.

Calendar Case No.860 of 2021

Complainant :Sub-Inspector of Police, Ananthapuramu III Town Police Station Crime No.365 of 2021 of Ananthapuramu III Town Police Station.

Mulla Dada Khalandar @ Dadu, aged 29 years, S/o Late Nazeer Sab, R/o SC Colony, 1st Road, Kalyanadurgam Town.

Date of Report or Apprehen Released Commen Close of Sentence

Offence Complaint sion of on bail cement of trial Order

accused trial

Between05.08.2021 07.08.2021----16.12.2021 20.12.202122.12.2021 04.08.2021 & 05.08.2021

Offence :-Under sections 457, 380 or 411 of Indian Penal Code.

Finding :- Found not guilty.

Sentence of Order:-

In the result, the Accused is found not guilty for the offences punishable under Sections 457, 380 or 411 of Indian Penal Code. Therefore, he is acquitted under Section 248(1) of Criminal Procedure Code for the said offences. The Superintendent, District Jail, Ananthapuramu shall forthwith release the Accused, if he is not required in any other case.

The MOs1 to 6 were already given to the interim custody of PW1. Hence, the said interim custody of case properties shall holds good and become absolute and MOs.1 to 6 are ordered to be retained by PW.1, after expiry of appeal time.

Sd/- A.Omkar,

I Additional Judicial Magistrate of First Class, Ananthapuramu. FAC Spl. Judicial Magistrate of First Class (Mobile) for trial of cases under PCR Act, Ananthapuramu. Copy Submitted :-

1. The Hon’ble First Additional District and Sessions Judge, Ananthapuramu.

2. The Superintendent of Police, Ananthapuramu.

//True copy//

I Additional Judicial Magistrate of First Class,

Ananthapuramu.

FAC Spl. Judicial Magistrate of First Class

(Mobile) for trial of cases under PCR Act,

Ananthapuramu.

DIS.No._____________, Dt._________________.

1

IN THE COURT OF THE II ADDITIONAL JUNIOR CIVIL JUDGE,

ANANTHAPURAMU

Present: Sri. A. Omkar,

I Additional Junior Civil Judge,

Ananthapuramu.

FAC II Additional Junior Civil Judge,

Ananthapuramu.

Monday, this the 28 th day of February, 2022.

ORIGINAL SUIT No.1195 of 2019

Between:-

Bommineni Suresh Babu, S/o B. Narayana Swamy, Hindu, aged 32 years, Business, R/o D.No.6-2-807, Kovur Nagar, Ananthapuramu Town & District. ..Plaintif

AND

Basayaiagari Manohar Vijayakumari, W/o M.S. Vijaya Kumar, Hindu, aged 61 years, Retired Employee, R/o D.No.1-210, Rudrampeta 1st Cross, Ananthapuramu.

..Defendant

* * * * *

This suit is came on 24.02.2022 for final hearing before me in the presence of Sri N.P. Sreenivasulu and Sri K. Jagadeeswar Reddy ,

Advocates for the Plaintifand defendant having remained exparte, and after hearing arguments and having stood over for consideration till this day, the Court delivers the following:

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

1.This is a suit filed by the plaintif against the defendant for recovery of sum of ₹.2,31,400/- (Rupees Two lakh thirty one thousand and four hundred Only) being the principal and interest due under a promissory note dated 09.07.2017 said to have been executed by the defendant in favour of plaintif and for costs.

2.The brief averments of the plaint are as follows:

The defendant borrowed an amount of ₹.1,50,000/- (Rupees

One lakh fifty thousand Only) from the plaintif on 09.07.2017 and on the same day, she executed a promissory note for ₹.1,50,000/- (Rupees One lakh fifty thousand Only) in favour of plaintif at Ananthapuramu Town agreeing to repay the same with interest at the rate of 24% per annum

2

either to the plaintif or to his order on demand. Inspite of, repeated demands of the plaintif, the defendant did not choose to repay the debt amount either principal or interest due under the suit promissory note.

The defendant is a retired employee. So, she is not entitled for any benefit under debt relief Laws. Hence, the plaintif is constrained to file the suit for recovery of the suit amount with subsequent interest and costs.

3.The defendant appeared through her counsel, but failed to file the written statement within the statutory period (90 days) and remained exparte to the suit proceedings on 24.01.2020.

4.The plaintif in support of his contentions got examined himself as PW1. He also got exhibited the original promissory note dated 09.07.2017 for ₹.1,50,000/- (Rupees One lakh fifty thousand Only) as

Ex.A1.

5.Heard the arguments of the learned Advocate for Plaintif.

Perused the entire record.

6.Now the point for consideration is that :

Whether the plaintiff is entitled for recovery of entire suit amount from defendant as prayed for ?

7. POINT:

It is the contention of the plaintif that the defendant is liable to pay ₹.2,31,400/- (Rupees Two lakh thirty one thousand and four hundred Only) under the suit promissory note dated 09.07.2017 with subsequent interest. To substantiate the same, he got examined himself as PW.1 and filed proof afidavit which is accepted on oath as his chief examination. The said chief examination is just replica of his pleadings.

The evidence of PW1 coupled with the contents of Ex.A1-promissory note, goes to show that on 09.07.2017, the defendant borrowed an amount of ₹.1,50,000/- (Rupees One lakh fifty thousand Only) on the same day from

3

the plaintif (PW1) for his family necessities and she executed promissory note i.e., Ex.A1 for ₹.1,50,000/- (Rupees One lakh fifty thousand Only) in favour of plaintif (PW1) on the said date, at Ananthapuramu Town, agreeing to repay the same with interest at the rate of 24% per annum either to the plaintif or to his order on demand and inspite of his repeated demands, the defendant did not choose to repay the debt amount covered under Ex.A1-promissory note.

8.Since the evidence of PW.1 as well as the contents of Ex.A1, remained unchallenged and unrebutted by the defendant, the Court finds no reason to disbelieve the same. Therefore, the Court holds that the plaintif with his evidence is able to establish that Ex.A1 suit promissory note is true, valid and binding upon the defendant. Apparently, the suit is filed within the period of limitation(three years). Hence, the Court holds that the plaintif is able to prove the suit claim and so, he is entitled to recover the suit amount. Accordingly, the Point is answered in favour of the plaintif in the following manner:

9. In the result, the suit is decreed with costs in favour of

plaintif and against the defendant, directing the defendant to pay

a sum of ₹.2,31,400/- (Rupees Two lakh thirty one thousand and

four hundred Only) to the plaintif with subsequent interest at the

rate of 12% per annum from the date of the suit i.e., 14.10.2019 to

till the date of decree and thereafter at the rate of 6% per annum

till the date of realization on principal amount of ₹.1,50,000/-

(Rupees One lakh fifty thousand Only) under the suit promissory

note.

Typed to my dictation by the Typist, corrected and pronounced by me in the open Court on this the 28 th day of February, 2022.

Sd/- A.Omkar,

I Additional Junior Civil Judge, Ananthapuramu. FAC II Additional Junior Civil Judge, Ananthapuramu.

4

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: FOR DEFENDANT :

PW.1: B. Suresh Babu. EXPARTE

EXHIBITS MARKED

FOR PLAINTIFF:

Ex.A1: Original suit promissory note executed by the defendant in favour of plaintif for ₹.1,50,000/-, Dated 09.07.2017.

Sd/- A.Omkar,

I Additional Junior Civil Judge, Ananthapuramu. FAC II Additional Junior Civil Judge, Ananthapuramu.

1

IN THE COURT OF THE II ADDITIONAL JUNIOR CIVIL JUDGE::

ANANTAPURAMU

Present: Sri A. Omkar I Additional Junior Civil Judge, Anantapuramu. FAC - II Additional Junior Civil Judge, Anantapuramu.

Thursday, this the 6th Day of January, 2022.

ORIGINAL SUIT No.647 of 2021

G. Vijayananda Reddy S/o G. Kesava Reddy, aged 55 years, Hindu, Business, R/o D.No.18-751-1, Neeruganti Street, Old Town, Anantapuramu. … Plaintif

Vs.

G. Somaiah S/o G. Anjinappa, aged 45 years, Panchayat Secretary R/o D.No.10-2-58, Rangastreet, Uravakonda Town, Anantapuramu District. Now working at MPDO office, Vidapanakal Mandal, Anantapuramu District. … Defendant * * * * *

The Suit came on 04.01.2022 for final hearing before me in the presence of Sri M. Narayanaswamy, Advocate for the Plaintifand the defendant remained ex parte, and after hearing arguments and having stood over for consideration till this day, the Court delivered the following:

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

1.This is a suit filed by the plaintif against the defendant for recovery of

Rs.5,12,600/- (Rupees Five lakh twelve thousand six hundred only) being the

principal amount and interest due on the promissory note dated 08.07.2018

said to be executed by the defendant, in favour of plaintif for Rs.3,00,000/- (Rupees Three lakh only) with interest agreeing to repay the same with an interest of 24% per annum and for costs.

2.The averments of plaint in brief are as follows:-

The defendant borrowed an amount of Rs.3,00,000/- (Rupees Three 2 lakh only) from the plaintif on 08.07.2018 and executed a promissory note at Anantapuramu, agreeing to repay the same with interest at 24% per annum either to the plaintif or to his order on demand. Inspite of repeated demands of the plaintif, the defendant did not repay the debt amount. The defendant is doing business, but not an agriculturist. So, he is not entitled for any benefit under Debt Relief Laws. Hence, the plaintif is constrained to file the suit for recovery of the amount with subsequent interest and costs.

3.The defendant returned the registered post summons as refused.

Service is held sufficient. The defendant is called absent. No representation.

Hence, the defendant remained set exparte to proceedings on 28.12.2021.

4.The plaintif in support of his contentions got examined himself as

PW1. He also got exhibited original promissory note dt.08.07.2018 for

Rs.3,00,000/- as Ex.A1.

5.Heard the arguments of learned Advocate for Plaintif. Perused the entire record.

6.Now the point for consideration is that :

Whether the plaintif is entitled for recovery of the suit

amount from defendant as prayed for ?

7. Point:

It is the contention of the plaintif that the defendant is liable to pay

Rs.5,12,600/- under suit promissory note, dt.08.07.2018 with subsequent interest. To substantiate the same, he got examined himself as PW1 and filed proof affidavit which is accepted on oath as his chief examination. The said chief examination is just replica of his pleadings. The evidence of PW1 coupled with the contents of Ex.A1 promissory note, goes to show that on 08.07.2018 the defendant borrowed a sum of Rs.3,00,000/- from the plaintif 3 (PW1) for his personal necessities and on the same day, he executed a promissory note for the said amount i.e., Ex.A1 in favour of plaintif (PW1) at

Anantapuramu., agreeing to repay the same with interest at the rate of 24% per annum either to the plaintif or to his order on demand, inspite of his repeated demands, the defendant did not repay the debt.

8.Since the evidence of PW1 as well as the contents of Ex.A1, remained unchallenged and unrebutted by the defendant, the Court finds no reason to disbelieve the same. Therefore, the Court holds that the plaintif with his evidence is able to establish that Ex.A1 suit promissory note is true, valid and binding upon the defendant. As the defendant did not choose to repay the debt due under Ex.A1 promissory note, the Court is inclined to draw an adverse inference against him. Moreover, the suit is filed within the period of limitation. Hence, the Court holds that the plaintif is able to prove the suit claim and so, he is entitled to recover the suit amount. Accordingly, the point is answered in favour of the plaintif in the following manner:

9. In the result, the suit is decreed with costs in favour of plaintif

and against the defendant, directing the defendant to pay a sum of

Rs.5,12,600/- (Rupees Five lakh twelve thousand six hundred only)

to plaintif with subsequent interest at the rate of 12% per annum

from the date of the suit to till the date of decree and thereafter at

the rate of 6% per annum till the date of realization on principal

amount of Rs.3,00,000/- (Rupees Three lakh only) under the suit

promissory note.

Typed to my dictation by Stenographer, corrected and pronounced by me in Court, this the 6 th Day of January, 2022.

I Additional Junior Civil Judge,

FAC - II Additional Junior Civil Judge, Anantapuramu 4

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: FOR DEFENDANT :

PW1 : G. Vijayananda. NONE.

EXHIBITS MARKED

FOR PLAINTFF: Ex.A1 : Original A marked promissory note dt.08.07.2018 for Rs.3,00,000/-.

FOR DEFENDANT: NIL

I Additional Junior Civil Judge,

FAC - II Additional Junior Civil Judge, Anantapuramu