Dr. T. Srinivasa Rao

Crl.App.No.454/20161

IN THE COURT OF THE V ADDITIONAL METROPOLITAN SESSIONS JUDGE,

RANGAREDDY DISTRICT AT L.B.NAGAR, HYDERABAD, TELANGANA STATE

PRESENT:Sri.Dr.T.SRINIVASA RAO,

V ADDITIONAL METROPOLITAN SESSIONS JUDGE,

RANGAREDDY DISTRICT

Saturday, the First day of April, Two Thousand Seventeen

CRIMINAL APPEAL No.454/2016 Between: R.Yadagiri, S/o.Rajaiah, Age: 52 yrs, Occ: Business, R/o.H.No.5-5-9/1, Kranthicolony, Vanasthalipuram, LB Nagar, Rangareddy District

...Appellant/Complainant

AND

01.Joreegala Shankaraiah, S/o.Ramulu, Age: 55 yrs, Occ: Business, R/o.Maheshwaram, Rangareddy District

02.The State of Telangana, Rep by APP., …Respondents

THIS CRIMINAL APPEAL IS PREFERRED AGAINST THE JUDGMENT PASSED IN C.C.No.185/2015 ON THE FILE OF VIII SPECIAL MAGISRTATE,

CYBERABAD AT HASTHINAPURAM, RANGAREDDY DISTRICT

Between: R.Yadagiri, S/o.Rajaiah, Age: 52 yrs, Occ: Business, R/o.H.No.5-5-9/1, Kranthicolony, Vanasthalipuram, LB Nagar, Rangareddy District

...Complainant

AND Joreegala Shankaraiah, S/o.Ramulu, Age: 55 yrs, Occ: Business,

R/o.Maheshwaram, Rangareddy District ...Accused

This Criminal Appeal is coming before me for final hearing in the presence of Sri.P.Sreeramreddy, Counsel for Appellant/Complainant and Sri.G.Chandrashekarreddy, Counsel for the Respondent/Accused and Smt.Ch.Sumanjali, Additional Public Prosecutor for the State and upon perusal of the material on record and the matter stood over for consideration till this day, this Court delivered the following:

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

01.ThisCriminalAppealispreferredbythe

Complainant/Appellant aggrieving the Judgment of Acquittal passed by the Lower Court in C.C.No.185/2015 as the accused was not found guilty for the offence Under Section 138 of Negotiable Instruments Act and was acquitted by the Lower Court U/Sec.255 (1) Cr.P.C. The parties are hereinafter referred to in this Criminal Appeal as they were arrayed in the Lower Court Judgment.

02.Before going into the merits of the case, it is necessary to

Crl.App.No.454/20162 state brief facts which are as follows: The accused borrowed

Rs.25,00,000/- for the purpose of family needs from the complainant and the accused pledged title deed and promised to repay the same within three months and thereafter the accused gave a cheque for

Rs.25,00,000/- and the complainant presented the same and on presentation of the said cheque twice, it was returned due to the reason “Kindly contact the drawer/drawers bank and please present again” and the Complainant got issued a statutory notice to the accused but the the accused got issued reply notice with false averments. Thereby the accused committed an offence punishable Under Section 138 of

Negotiable Instruments Act.

03.On appearance of the accused before the Lower Court, all the copies of the complaint and other documents furnished to the accused U/Sec.207 Cr.P.C and he was examined U/Sec.251 Cr.P.C. for the offence U/Sec.138 of Negotiable Instruments Act, for which the accused denied the offence and claimed to be tried.

04.To prove the case of the Complainant, the Complainant got himself examined as PW1 and got marked Ex.P1 to P8. The accused was examined Under Section 313 Cr.P.C. and the accused denied incriminating evidence available against him and got marked Ex.D1 &

D2 on his behalf.

05.Heard both the sides. Perused the record. The learned counsel for the complainant also filed written arguments.

06.The learned counsel for the appellant strenuously argued that the accused borrowed Rs.25,00,000/- for the purpose of family needs from the complainant and the accused pledged title deed and promised to repay the same within three months and thereafter the accused gave a cheque for Rs.25,00,000/- and the complainant

Crl.App.No.454/20163 presented the same and on presentation of the said cheque twice, it was returned due to the reason “Kindly contact the drawer/drawers bank and please present again” and the Complainant got issued a statutory notice to the accused but the the accused got issued reply notice with false averments and further contended that the accused admitted his signature on Ex.P1 cheque and the same is not in dispute and that Ex.P8 sale deed in favor of the wife of the accused is also not in dispute but the Lower Court did not consider all these aspects and erroneously passed Acquittal Order by dismissing the complaint and thereby prayed to allow this Criminal Appeal by setting aside the

Acquittal Orders passed by the Lower Court.

07.Per contra, the learned counsel for the accused strenuously argued that the accused never borrowed any amount from the complainant and there were several other transactions between the accused and the complainant in connection with real estate business and the complainant obtained a blank cheque for the purpose of real estate business but he did not return the same and when he was about to sell his land which is in his wife's name, the complainant obtained the sale deed for brining the purchasers but did not return the same and filed this false case and that the Lower Court rightly acquitted the accused and thereby prayed to confirm the Orders passed by the Lower

Court by dismissing the Criminal Appeal.

08.The following principles have to be kept in mind by Appellate

Court while dealing with Appeals, particularly, against the Order of

Acquittal: a) There is no limitation on the part of the Appellate Court to review the evidence upon which Order of Acquittal is found; b) Appellate

Court in an Appeal against acquittal can review the entire evidence and come to its own conclusions; c). Appellate Court can also review Trial

Crl.App.No.454/20164

Court’s conclusion with respect to both facts and law. d) While dealing with the Appeal preferred by State, it is the duty of the Appellate Court to marshal the entire evidence on record and by giving cogent and adequate reasons set aside judgment of acquittal; e) An Order of acquittal is to be interfered only when there are “compelling and substantial reasons” for doing so. If the Order is “clearly unreasonable”, it is a compelling reason for interference; f) While sitting in Judgment over an acquittal Appellate Court is first required to seek an answer to the question whether finding of Trial Court are palpably wrong, manifestly, erroneous or demonstrably unsustainable-If the Appellate

Court answers said question in the negative Order of acquittal is not to be disturbed-Conversely, if the Appellate Court holds, for reasons to be recorded, that the Order of Acquittal cannot at all be sustained in view of any infirmities, it can reappraise evidence to arrive at its own conclusion. When the Trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of Ballistic Experts etc., Appellate Court is competent to reverse decision of Trial Court depending on the materials placed (Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi, 2010 (3)

Supreme 190).

09.So the following circumstances are justifiable in reversing the Order of acquittal: when the judgment of the trial Court acquitting the accused is based on no material or it is perverse or it is not a plausible view or there is non-consideration of any evidence or there is palpable misreading of evidence, etc. there had been some miscarriage of justice in the way the trial Court has appreciated the evidence.

(Basappa Vs. State of Karnataka, Crl. Appeal No.512/ 2014(Arising out of

S.L.P.(Criminal)S.C decided on 27-02-2014).

Crl.App.No.454/20165

10.The following circumstance is not justifiable in reversing the

Order of acquittal: It is the only stand of the appellate Court that on the available evidence, another view is also reasonably possible in the sense that the appellant –accused could have been convicted.

11.The following general principles regarding powers of

Appellate Court while dealing with an Appeal against an Order of acquittal emerge: 01. An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the Order of acquittal is founded; 02. The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law; 03. Various expressions, such as, ‘substantial and compelling reasons’, ‘good and sufficient grounds’, ‘very strong circumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc., are not intended to curtail extensive powers of an appellate Court in an Appeal against acquittal. Such phraseologies are more in the nature of ‘flourishes of language’ to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion; 04.

An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law.

Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court; 05. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the

Crl.App.No.454/20166 finding of acquittal recorded by the trial Court. (Chandrappa Vs. State of Karnataka2007 (2) Supreme 177).

12.Duty of Appellate Court: (I) The 1st appellate Court being the last question of fact and law has to appreciate and scrutinize the evidence in proper perspective and ascribe reasons for accepting the evidence or not accepting the evidence and arrive at an independent conclusion as to whether the said evidence can be relied upon or not even it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. (ii)

The credibility of a witness has to be adjudged by the appellate Court, like the trial Court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final Court of Appeal. (iii) It must be remembered that the appellate Court, like the trial Court, has to be satisfied doubt as the presumption affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable of innocence with which the accused starts, continues right through until he is held guilty by the final Court of Appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial Court. (iv) Ultimately it has to see neither an innocent person should be sent to prison without his fault nor a guilty person should be let off despite evidence on record to assure his guilt. (v) It is the sacrosanct duty of the appellate Court, while sitting in Appeal against the judgment of the trial Judge, to be satisfied that the guilt of the accused has been established beyond all reasonable doubt after proper re-assessment, re-appreciation and re-scrutiny of the material on record.

Crl.App.No.454/20167

(vi) Reasons cannot be cryptic. By this, it does not mean that the

Appellate Court is expected to write an unduly long treatise. The judgment may be short but must reflect proper application of mind to vital evidence and important submissions which go to the root of the matter.”(Kamlesh Prabhudas Tanna & anr.,vs.State of Gujarat, 2014 Crl.

L.J 443) (vii) It shall not reproduce the findings recorded by the trial

Court because the personal liberty of accused is curtailed because of the conviction.

13.Now the points for determination are:

01.Whether the accused probablized his defence by showing preponderance of probabilities to rebut the presumptions under Section 118 (a) & 139 of Negotiable Instruments Act ?

02.Whether there are any grounds to interfere with the Impugned Judgment of Lower Court?

POINT No.1:

14.It is settled law: In view of the presumptions under section 118(a) and section 139, once accused admitted his signature on cheque, burden lies on him to prove that cheque was issued not for discharge of debt or liability legally enforceable in as much as every negotiable instrument shall be presumed to be supported by consideration under sec 118 (a) unless the contrary is proved and secondly a presumption that the holder of cheque receiving the same of the nature referred to in sec. 139 to discharge in whole or in part of any debt or other liability. So the burden lies on the promissory to rebut the said presumption.

15.How to discharge the evidential burden by the accused: The phrase “burden of proof” has two meanings: one the burden of proof as a matter of law and pleading and the other the burden of establishing a case. The former is fixed as a question of law on the basis of the pleadings and is unchanged during the entire trial, whereas the latter is

Crl.App.No.454/20168 not constant but shifts as soon as party adduces sufficient evidence to raise a presumption in his favour. Sec 139 is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While sec 138 specifies strong criminal remedy in relation to the dishonour of cheques, the rebuttal presumption under section 139 is a device to prevent undue delay in the course of litigation, however the accused cannot be expected to discharge an unduly high standard of proof.

16.It is not necessary for the accused to get into witness-box or examine any witness or produce any document on his behalf.

17.The reverse onus clauses usually impose an evidentiary burden. Keeping this in view Court has to see whether the said circumstances are sufficient to rebut the presumption under section 139 of the Act that the cheque was issued for discharge of debt.

18.When the accused has to rebut the presumption under section 139, the standard of proof for doing so is that of “preponderance of probabilities”. Therefore, if the accused is able to raise a probable defence basing on the material available in the evidence on the side of the Complainant and by the answers elicited from the witnesses of the

Complainant would improbabilise against the Complainant and such degree shall be enough to rebut the presumption and recast the burden that creates doubts about the existence of a legally enforceable debt, the prosecution can fail. The accused can rely on the material submitted by the Complainant in Order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence.

19.The general presumption of innocence gets revived once the presumption 118(a) is rebutted by preponderance of probabilities and

Crl.App.No.454/20169 thereafter the burden shall be solely on the Complainant to prove the charge beyond reasonable doubt.

20.Admissions and improbabilities found in the evidence on the side of the Complainant alone are enough to rebut the presumption.

21.With this back drop of above trite law, now I proceed to appreciate the oral and documentary evidence.

22.As seen from the evidence of PW1, he reiterated the averments of his complaint in the Chief Affidavit. During the course of cross examination he admitted that except the transaction under Ex.D1 there were no other transactions regarding purchase and sale of any lands between the complainant and the accused and further admitted that the accused and the complainant used to invest amounts in the real estate business. He further admitted that there was loss in real estate business. He also admitted that the said amount was not drawn from any bank and that the said amount was not shown in income tax return. He further admitted that Ex.P8 was in the name of wife of the accused. He further admitted that there is no receipt for the alleged present transaction. He stated that the cheque was returned due to insufficient funds but as seen from Ex.P2 & P3 cheque return memos shows that “Kindly contact the drawer/drawers bank and please present again”.

23.Now coming to the documentary evidence, Ex.P1 is the cheque for Rs.25,00,000/- said to have been issued by the accused in favor of the complainant, as seen from this document there is difference of ink in signature of the accused and the ink used for filling blanks of the cheque. At the risk of repetition I am going back to the facts of the case which are as: the accused borrowed Rs.25,00,000/- for the purpose of family needs from the complainant and the accused pledged title

Crl.App.No.454/201610 deed and promised to repay the same within three months and thereafter the accused gave a cheque for Rs.25,00,000/- and the complainant presented the same and on presentation of the said cheque twice, it was returned due to the reason “Kindly contact the drawer/drawers bank and please present again”. The contention of the accused is that he issued the said cheque towards security for purchasing the land to conduct joint real estate but subsequently the said deal was not materialized and the accused did not return the same stating it was kept in the locker and filed this case. Ex.P4 is the legal notice, Ex.P5 is the reply notice wherein the accused referred Ex.P1 which was given towards security. Ex.P6 is the rejoinder notice, Ex.P7 is the postal acknowledgment, Ex.P8 is the sale deed in favor of the wife of the accused executed by one M.Srinivas Goud.

24.Now coming to the documents of the accused, Ex.D1 is the sale deed executed by Jayapradha in favor of Rani, Ex.D2 is also sale deed executed in favor of Prabhakar Goud, these two documents were admitted by PW1 during the course of cross-examination.

25.The learned counsel for the complainant relied upon a decision reported in AIR 2001 SC 2895 K.N.Beena Vs. Muniyappan and another wherien it was held that burden to prove is on the accused and not on the complainant. With due respect to the above decision, there is no dispute with regard to the ratio laid down in this decision.

26.The learned counsel for the complainant relied upon a decision reported in 2010 (3) ALT (Crl.) 339 (SC) Rangappa Vs. Sri Mohan wherein it was held that the presumption U/Sec.139 includes the presumption of the existence at a legally enforceable debt or liability.

With due respect to the above decision, there is no dispute with regard to the ratio laid down in this decision. But in the present case on hand

Crl.App.No.454/201611 the complainant failed to establish legally enforceable debt beyond all reasonable doubt once the accused rebutted the presumptions.

27.The learned counsel for the complainant relied upon a decision reported (2012) 2 ALD (Crl) 682 R.Rajendran Vs.

A.J.Yuvarajreddy wherein it was held that when once issuance of cheque in question and the signature on them are admitted to be true, in the circumstances, there is no option for the Court except, to accept the case of the complainant. With due respect to the above decision, there is no dispute with regard to the ratio laid down in this decision but this decision not applicable to the present case on as the complainant failed to show the existence of legally enforceable debt beyond reasonable doubt as the accused rebutted the presumptions.

28.The learned counsel for the complainant also relied upon a decision reported in 2001 (6) ALT 95 (DB) D.Sheshagiri Rao Vs.

K.Venkateshwara wherein it was held that a promissory note even if the name of the payee, is left blank is a legal instrument. With due respect to the above decision, this decision is not applicable to the present case on hand as there is no promissory note in this case and even otherwise there is no receipt to the disputed transaction.

29.Therefore in this matter right from the beginning the contention of the accused is that the issued reply notice taking same plea of security and during the course of cross-examination he also elicited several aspects concerning source of income and the complainant admitted that there is no eyewitness and there is no proof to show from where he brought such a huge amount and no prudent man will keep with him such a huge amount of Rs.25,00,000/- in his house and the complainant did not show the said amount in the income tax returns and moreover he did not take any single paper towards

Crl.App.No.454/201612 receipt of the alleged transaction. The accused is not a layman he is doing real estate business but he did not take any receipt on the date of transaction, if really happened. Even though it is settled law that the blanks of the cheque can be filled up by any one but Ex.P1 shows two inks, therefore it is clear that it was a blank signed cheque issued towards security. Therefore this Court holds that the evidence of PW1 is not trustworthy and convincing to support Ex.P1 and the complainant failed to prove that there is legally enforceable debt beyond all reasonable doubt there probabilities suffice to hold that the accused rebutted the presumptions under Sections 118 (a) and 139 of

Negotiable Instruments Act by showing the preponderance of probabilities that Ex.P1 cheque is issued towards security.

30.In view of the above discussion, this Court holds that the case of the accused right from the beginning is consistent, and even otherwise it is settled law that if two views are possible in a case then the view which is in favor of the accused has to be considered, in this case also two views are possible hence the view which is in favor of the accused is considered. Therefore this Court has no hesitation to hold that there is no proper documentary evidence to show the existence of legally enforceable debt and that there is no documentary evidence to show that any loan transaction has indeed been taken place.

31.So the burden shifted to the Complainant to prove his case beyond all reasonable doubt is not discharged. Therefore in view of the admissions of PW1 in the cross examination, consistent defence of the accused supported with Ex.D1 & Ex.D2 this Court holds that the

Complainant failed to establish the guilt of the accused for the offence punishable U/Sec.138 of Negotiable Instruments Act beyond all reasonable doubt and the benefit of doubt shall be given to the accused

Crl.App.No.454/201613 and consequently, the accused is entitled for Acquittal. Accordingly these points are answered.

POINT No.3:

32.As seen from the Judgment of the Lower Court, it discussed all the aspects minutely and came to the correct conclusion that the

Complainant failed to establish the guilt of the accused for the offence punishable U/Sec.138 of Negotiable Instruments Act beyond all reasonable doubt. Moreover the Judgment of the Lower Court is not perverse nor it is not a plausible view nor there is non-consideration of any evidence or there is palpable misreading of evidence, etc. or there had been some miscarriage of justice in the way the trial Court has appreciated the evidence. Therefore there are no compelling and substantial reasons or infirmities to interfere with the Order of Acquittal passed by the Lower Court. Consequently, the Order of Acquittal passed by the Lower Court is hereby confirmed. Accordingly this point is answered.

33.In the result, the Criminal Appeal is dismissed confirming the

Acquittal Order passed by the Lower Court. The Miscellaneous Petitions, pending if any, in this Criminal Appeal shall stand closed.

Dictated to the Personal Assistant, typed by him, corrected

and pronounced by me in the Open Court on this Saturday, the First day of April, Two Thousand Seventeen.

V ADDITIONAL METROPOLITAN SESSIONS JUDGE

RANGAREDDY DISTRICT

APPENDIX OF EVIDENCE: NIL

V ADDITIONAL METROPOLITAN SESSIONS JUDGE

RANGAREDDY DISTRICT

Crl.App.No.496 / 20151

IN THE COURT OF THE V ADDITIONAL METROPOLITAN SESSIONS JUDGE,

RANGAREDDY DISTRICT AT L.B.NAGAR, HYDERABAD, TELANGANA STATE

PRESENT:Sri.Dr.T.SRINIVASA RAO,

V ADDITIONAL METROPOLITAN SESSIONS JUDGE,

RANGAREDDY DISTRICT

Thursday, the Thirtieth day of March, Two Thousand Seventeen

CRIMINAL APPEAL No.496 / 2015 Between: Bereddy Ramchandrareddy @ Bereddy Chandrareddy, S/o.Ramreddy,

Age: 63 yrs, Occ: Business, R/o.Uppal, Hyderabad ...Appellant/Accused

AND

01.Gaddam Sravan Kumar Reddy, S/o.Gaddam Balakrishnareddy, Age: 37 yrs, Occ: Business, R/o.Medipally, Hyderabad.

02.The State of Telangana, Rep by Addl.PP …Respondent/Complainant

THIS CRIMINAL APPEAL IS PREFERRED AGAINST THE JUDGMENT PASSED IN C.C.No.279/2014 ON THE FILE OF IV SPECIAL MAGISRTATE,

CYBERABAD AT HASTHINAPURAM, RANGAREDDY DISTRICT

Between: Gaddam Sravan Kumar Reddy, S/o.Gaddam Balakrishnareddy, Age: 37

yrs, Occ: Business, R/o.Medipally, Hyderabad ...Complainant

AND Bereddy Ramchandrareddy @ Bereddy Chandrareddy, S/o.Ramreddy,

Age: 63 yrs, Occ: Business, R/o.Uppal, Hyderabad ...Accused

This Criminal Appeal is coming before me for final hearing in the presence of Sri.A.Kesavareddy, Advocate for the Appellant/Accused and M/s.Goli Viplavreddy, Advocate for the Complainant/Respondent and Smt.Ch.Sumanjali, Additional Public Prosecutor for the State and upon perusal of the material on record and the matter stood over for consideration till this day, this Court delivered the following:

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

01.This Criminal Appeal is preferred by the Accused/Appellant aggrieving the Judgment of Conviction and Sentence passed by the

Lower Court in C.C.No.279/2014 as the accused was found guilty for the offence punishable Under Section 138 of Negotiable Instruments Act, 1881 and was convicted and sentenced by the Lower Court U/Sec.255 (2) Cr.P.C. The parties are hereinafter referred to in this Criminal Appeal as they were arrayed in the Lower Court Judgment.

02.Before going into the merits of the case, it is necessary to state brief facts which are as follows: The accused borrowed

Crl.App.No.496 / 20152

Rs.6,00,000/- from the complainant towards hand loan and also executed receipt-cum-undertaking and also executed two promissory notes for Rs.3,00,000/- each agreeing to repay the same. The accused paid Rs.1,00,000/- to the complainant and the accused issued a cheque for Rs.5,00,000/- and the Complainant presented said cheque for realization, the same was bounced and returned along with a cheque return memo for the reason 'Funds insufficient' and the complainant informed the same to the accused and later on the Complainant got issued legal notice to the accused demanding to pay the cheque amount but the accused got issued reply with false allegations. Thereby the accused committed an offence punishable U/Sec.138 Negotiable

Instruments Act.

03.On appearance of the accused before the Lower Court all the copies of the complaint and other documents furnished to the accused as contemplated U/Sec.207 of Cr.P.C and the accused was examined

U/Sec.251 Cr.P.C. for the offence U/Sec.138 Negotiable Instruments Act for which the accused denied the offence and pleaded not guilty and claimed to be tried.

04.To prove the case of the complainant, the complainant himself was examined as PW1 and got examined PW2 & PW3 and got marked Ex.P1 to P13. The accused was examined U/Sec.313 Cr.P.C. and the accused denied all the incriminating material found against him and reported defence evidence and got examined himself as DW1 and got examined DW2 and DW3 and got marked Ex.D1 to D8 on his behalf.

05.Heard both parties. Perused the record.

06.Now the points for determination are:

01.Whether the accused discharged the reverse onus to rebut the presumptions under Section 118 (a) and 139 of Negotiable Instruments Act ?

02.Whether there are any grounds to interfere with the Order of Conviction and sentence passed by the Lower Court ?

Crl.App.No.496 / 20153

POINT No.1:

07.It is settled law: In view of the presumptions under section 118 (a) and Section 139 of Negotiable Instruments Act, once accused admitted his signature on cheque, burden lies on him to prove that cheque was issued not for discharge of debt or liability legally enforceable in as much as every negotiable instrument shall be presumed to be supported by consideration Under Section 118 (a) of

Negotiable Instruments Act unless the contrary is proved and secondly a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 of Negotiable Instruments Act to discharge in whole or in part of any debt or other liability. So the burden lies on the promissory to rebut the said presumption.

08.How to discharge the evidential burden by the accused: The phrase “burden of proof” has two meanings: one the burden of proof as a matter of law and pleading and the other the burden of establishing a case. The former is fixed as a question of law on the basis of the pleadings and is unchanged during the entire trial, whereas the latter is not constant but shifts as soon as party adduces sufficient evidence to raise a presumption in his favour. Section 139 of Negotiable

Instruments Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of Negotiable

Instruments Act specifies strong criminal remedy in relation to the dishonour of cheques, the rebuttal presumption Under Section 139 of

Negotiable Instruments Act is a device to prevent undue delay in the course of litigation, however the accused cannot be expected to discharge an unduly high standard of proof.

09.It is not necessary for the accused to get into witness-box or

Crl.App.No.496 / 20154 examine any witness or produce any document on his behalf.

10.The reverse onus clauses usually impose an evidentiary burden. Keeping this in view Court has to see whether the said circumstances are sufficient to rebut the presumption under section 139 of Negotiable Instruments Act that the cheque was issued for discharge of debt.

11.When the accused has to rebut the presumption Under

Section 139 of Negotiable Instruments Act, the standard of proof for doing so is that of “preponderance of probabilities”. Therefore, if the accused is able to raise a probable defence basing on the material available in the evidence on the side of the complainant and by the answers elicited from the witnesses of the complainant would improbabilise against the complainant and such degree shall be enough to rebut the presumption and recast the burden that creates doubts about the existence of a legally enforceable debt, the prosecution can fail. The accused can rely on the material submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence.

12.The general presumption of innocence gets revived once the presumption 118(a) of Negotiable Instruments Act is rebutted by preponderance of probabilities and thereafter the burden shall be solely on the complainant to prove the charge beyond reasonable doubt.

13.Admissions and improbabilities found in the evidence on the side of the complainant alone are enough to rebut the presumption.

14.With this back drop of trite law, now I proceed to appreciate the oral and documentary evidence.

15.As seen from the evidence of PW1, he reiterated what he averred in the complaint in his chief affidavit. During the course of

Crl.App.No.496 / 20155 cross-examination nothing was elicited to disbelieve his evidence except by putting some bald suggestions. The entire cross-examination went on questioning that there is no legally enforceable debt and that the complainant has no financial capacity to lend such a huge amount and that the cheque was given to the complainant towards security and took inconsistent pleas, for which he denied all those suggestions.

16.PW2 & PW3 who are the scribe and attestor of promissory notes stated about the entire transaction between the accused and the complainant and during the course of cross-examination also they supported the version of PW1 in all aspects and they stood for test of cross-examination and nothing was elicited to disbelieve his evidence.

PW3 also stated about the denomination of amount paid to the accused.

17.DW1 who is accused herein in this case stated that he jonied as a partner in Road contractor along with PW1 and PW2 and sustained loss of Rs.8,00,000/- and obtained loan of Rs.6,00,000/- from PW1 and that he repaid the loan amount of Rs.6,00,000/- along with interest to

PW1 in different dates and he also stated that after repayment of loan

PW1 returned all land documents except one cheque which was misused for filing this case but during the course of cross-examination he admitted that he does not know on which date Ex.P1 was issued and further admitted that he cannot say from which date to which date the interest was paid to PW1. However he denied a suggestion that he agreed to repay the balance amount of Rs.5,00,000/- along with interest within three months.

18.DW2 reiterated the chief averments of DW1 in the similar lines and during the course of cross-examination examination he admitted that he did not depose in his chief examination that the accused had paid interest on every month and further failed to state the

Crl.App.No.496 / 20156 date of panchayath held.

19.DW3 is the person who held panchayath between the accused and the complainant stated that the accused paid the amount to the complainant but during the course of cross-examination he failed to say the day or year when the panchayath was held. Further admitted that the accused did not pay Rs.3,00,000/- and another three lakhs in his presence.

20.Now coming to the documentary evidence, Ex.P1 is the cheque said to have been given in favor of the complainant by the accused for an amount of Rs.6,00,000/-, at the risk of repetition I am going to the facts of the case that the accused borrowed Rs.6,00,000/- from the complainant towards hand loan and also executed receipt-cum- undertaking and also executed two promissory notes for Rs.3,00,000/- each agreeing to repay the same. The accused paid Rs.1,00,000/- to the complainant and the accused issued a cheque for Rs.5,00,000/- and the Complainant presented said cheque for realization, the same was bounced and returned along with a cheque return memo for the reason 'Funds insufficient' and the complainant informed the same to the accused and later on the Complainant got issued legal notice to the accused demanding to pay the cheque amount but the accused got issued reply with false allegations. No doubt the accused is disputing the cheque but he is admitting his signature on the cheque, when the signatures are admitted or proved, the presumption U/Sec.118 (a) and 139 of Negotiable Instruments Act come into picture that it was supported by the consideration and the complainant was the holder of the cheque. So now it is for the accused to rebut the said presumption as per a decision reported in 2012 (2) ALD (Crl.) 298 (AP) Laila Finance

Ltd., Hyderabad Vs. S.A.Engineering Services, Vijayawada and others

Crl.App.No.496 / 20157 wherein it was held that “once accused admitted signature on cheque burnden lies on the accused to prove that the cheque issued was not for discharge of debt or liability or legally enforceable debt”. It was held in a decision reported in 2010 (2) ALD (Crl.) 734 (SC) Rangappa Vs. Mohan wherein it was held that “Section 139 includes existence of a legally enforceable debt or liability”. Ex.P4 & P5 are the promissory notes said to have been given in favor of the complainant by the accused for an amount of Rs.3,00,000/- each, though the accused took plea that these documents are forged documents but he did not take any steps to send the same to the Expert before the Lower Court, even though he filed a petition before this Court, it is an afterthought as this is a belated stage.

Ex.P2 & P3 are the deposit slip and cheque return memo. Ex.P6 is the lease deed, Ex.P7 is the office copy of legal notice. Ex.P8 and P9 are postal receipts, Ex.P10 is the returned postal cover, Ex.P11 is the reply to Ex.P7, Ex.P12 & P13 are the registration copies of the settlement deeds.

21.Now coming to the documents of the accused, Ex.D1 and D2 are the promissory notes, Ex.D3 is the undertaking bond paper, Ex.D4 is the legal notice which is Ex.P7, Ex.D5 is the reply notice, Ex.D6 and D7 are the postal receipts, Ex.D8 is the postal acknowledgment. All these documents except Ex.D4 are self-serving documents because there is no basic foundation to these documents during the course of trial or in the pleas taken by the accused. Therefore these documents are not trustworthy and they cannot be considered as they were not even referred in the reply notice given by the accused.

22.At this stage, the learned counsel for the accused relied upon a decision of Hon'ble Supreme Court of India between Vijay Vs.

Laxman and another decided on 07-02-2013 wherein it was held that

Crl.App.No.496 / 20158 the absence of date on which the loan was advanced as also the absence of any documentary or other evidence to show that any such loan transaction had indeed taken place between the parties is a significant circumstance. With due respect to the above decision it is not applicable to the present case on hand since in the present case on hand the entire transaction details are disclosed by PW2 and PW3 whose evidence is not shaken during the course of cross-examination and supported by promissory notes.

23.The learned counsel for the accused also relied upon a decision of Hon'ble Supreme Court of India between Kamala S. Vs.

Vidyadharan M.J. and another decided on 20-02-2007 wherein it was held that when two views are possible, the Court shall not interfere with the order of acquittal. There is no dispute with regard to the ratio laid down in this decision but in the present case on hand two view are not possible, only one view is possible i.e., the guilt of the accused.

24.The learned counsel for the accused also relied upon a decision of Hon'ble Madra High Court between Sakthi Finance Limited

Vs. K.Selvaraj decided on 16-03-2011 wherein it was held that the cheques were given only for the purpose of security and they were never intended to be used for realization any amount. With due respect to the above decision it is not applicable to the present case on hand since in the present case on hand the cheque was given to the complainant for discharge of legally enforceable debt.

25.The learned counsel for the accused also relied upon a decision of Hon'ble Andhra Pradesh High Court between Velaga

Sivarama Krishna Vs. Velaga Veerabhadra Rao and another decided on 15-09-2008 wherein it was held that the defendant denied execution of promissory note and his signature and in such a case it is essential to

Crl.App.No.496 / 20159 send document to Expert for comparison of signatures. With due respect to the above decision it is not applicable to the present case on hand since in the present case on hand this plea was not taken before the Lower Court or in the averments of the reply notice and this is a belated stage and afterthought and moreover there are inconsistent pleas taken by the accused.

26.Therefore in this matter the evidence of PW1 to PW3 coupled with Ex.P1 to P13 clinchingly established the fact that the accused issued Ex.P1 cheque towards discharge of legally enforceable debt. Therefore it is for the accused to rebut the presumptions under sections 118 (a) and Section 139 of Negotiable Instruments Act as to why the accused issued cheuqe to the complainant and how the cheque came into the hands of the complainant but the accused failed to rebut the presumptions U/Secs.118 (a) and Section 139 of Negotiable

Instruments Act. Therefore this Court holds that the complainant complied Section 138 (b) of Negotiable Instruments Act. Therefore this

Court has no hesitation to hold that the accused failed to rebut the presumptions U/Sec.118 (a) and 139 of Negotiable Instruments Act and the complainant established case against the accused for the offence punishable U/Sec.138 of Negotiable Instruments Act by proving all the ingredients of Section 138 of Negotiable Instruments Act. Accordingly these points are answered.

POINT No.3:

27.As seen from the Judgment of the Lower Court, it discussed every aspect minutely and rightly came to the conclusion that the complainant proved the guilt of the accused for the offence punishable

Under Section 138 of Negotiable Instruments Act and the accused failed to rebut the presumptions U/Sec.118 (a) and 139 of Negotiable

Crl.App.No.496 / 201510

Instruments Act. Therefore the impugned Judgment of the Lower Court is not perverse nor it is not a plausible view nor there is non- consideration of any evidence or there is palpable misreading of evidence, etc. or there had been some miscarriage of justice in the way the trial Court has appreciated the evidence. Therefore there are no grounds to interfere with the Judgment of the Lower Court.

Consequently, the Conviction Order passed by the Lower Court is hereby confirmed.

28.So far as the sentence is concerned, the Lower Court sentenced the accused to undergo Simple Imprisonment for a period of one year and further sentenced to pay a sum of Rs.5,00,000/- to the complainant within two months from the date of Lower Court Judgment towards compensation U/Sec.357 (3) Cr.P.C IDSI for three months. In view of the object of the Section 138 of Negotiable Instruments Act, the simple imprisonment of one year is reduced to simple imprisonment of six months and remaining sentence is confirmed. Accordingly the point is answered.

29.In the result, the Criminal Appeal is partly allowed confirming the Conviction and Sentence of Simple Imprisonment of one year is reduced to simple imprisonment of six months and remaining sentence is confirmed. The Criminal Miscellaneous Petition No.100/2016 in Criminal Appeal No.496/2015 is dismissed vide separate typed Order.

The Miscellaneous Petition or Petitions, if any, pending in this Criminal

Appeal shall stand closed. Since the accused is called absent, the Lower

Court is directed to take necessary steps to execute the Sentence.

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

pronounced by me in the Open Court on this Thursday, the

Thirtieth day of March, Two Thousand Seventeen.

V ADDITIONAL METROPOLITAN SESSIONS JUDGE

RANGAREDDY DISTRICT

Crl.App.No.496 / 201511

APPENDIX OF EVIDENCE

WITESSES EXAMINED

NIL

EXHIBITS MARKED

NIL

V ADDITIONAL METROPOLITAN SESSIONS JUDGE

RANGAREDDY DISTRICT

Crl.App.No.879 / 20161

IN THE COURT OF THE V ADDITIONAL METROPOLITAN SESSIONS JUDGE,

RANGAREDDY DISTRICT AT L.B.NAGAR, HYDERABAD, TELANGANA STATE

PRESENT:Sri.Dr.T.SRINIVASA RAO,

V ADDITIONAL METROPOLITAN SESSIONS JUDGE,

RANGAREDDY DISTRICT

Thursday, the Thirtieth day of March, Two Thousand Seventeen

CRIMINAL APPEAL No.879 / 2016 Between: Mohammed Moosa, S/o.Mohd.Khaja, Age: 35 yrs, Occ: Business, R/o.8-4-

549/246, Erragadda, Hyderabad ...Appellant/Accused

AND The State of Telangana, Rep by Addl.PP …Respondent/Complainant

THIS CRIMINAL APPEAL IS PREFERRED AGAINST THE JUDGMENT PASSED IN C.C.No.83/2016 ON THE FILE OF II SPECIAL MAGISRTATE, CYBERABAD

AT RAJENDRANAGAR, RANGAREDDY DISTRICT

Between: Mohammed Moosa, S/o.Mohd.Khaja, Age: 35 yrs, Occ: Business, R/o.8-4-

549/246, Erragadda, Hyderabad ...Complainant

AND

The State of Telangana, Rep by Addl.PP ...Accused

This Criminal Appeal is coming before me for final hearing in the presence of Sri.Mohd.Sajjad Hussain, Advocate for the Appellant/Accused and Smt.Ch.Sumanjali, Additional Public Prosecutor for the State and upon perusal of the material on record and the matter stood over for consideration till this day, this Court delivered the following:

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

01.This Criminal Appeal is preferred by the Accused/Appellant aggrieving the Judgment of Conviction and Sentence passed by the

Lower Court in C.C.No.83/2016 as the accused was found guilty for the offence punishable Under Sections 447, 427 of Indian Penal Code and was convicted and sentenced by the Lower Court U/Sec.255 (2) Cr.P.C.

The parties are hereinafter referred to in this Criminal Appeal as they were arrayed in the Lower Court Judgment.

02.Before going into the merits of the case, it is necessary to state brief facts which are as follows: The Sub-Inspector of Police,

Shamshabad Police Station filed charge sheet against the accused for the offence punishable U/Secs.447, 427 Indian Penal Code and Section 3

Crl.App.No.879 / 20162 of the Prevention of Damage to Public Property Act stating that the accused established venture Kings Colony and Moosa Colony in

Sy.No.193 to 196 & 200 which are adjacent to the Phiranginala and there is Hanuman Temple existing in Sy.No.198 an extent of Ac.0-08 guntas and the accused laid a road along with Phiranginala without any permission and the same was removed on 15-04-2014 by the Revenue

Authorities but again the accused encroached Phiranginala, for which

Mandal Surveyor conducted survey and reported that the accused established above venture and caused damage to the Phiranginala.

Thereby the Sub-Inspector of Police, Shamshabad Police Station filed charge sheet against the accused for the offence punishable

U/Secs.447, 427 Indian Penal Code and Section 3 of the Prevention of

Damage to Public Property Act.

03.On appearance of the accused before the Lower Court all the copies of the complaint and other documents furnished to the accused as contemplated U/Sec.207 of Cr.P.C and the accused was examined

U/Sec.251 Cr.P.C. for the offence U/Secs.447, 427 Indian Penal Code and

Section 3 of the Prevention of Damage to Public Property Act, for which the accused denied the offence and pleaded not guilty and claimed to be tried.

04.To prove the case of the prosecution, the prosecution got examined PW1 to PW6 and got marked Ex.P1 to P8. The accused was examined U/Sec.313 Cr.P.C. and the accused denied all the incriminating material found against them and reported no defence evidence.

05.Heard both parties. Perused the record.

06.The learned counsel for the accused strenuously that the

Lower Court convicted the accused basing upon the surmises and conjectures and further contended that existence of nalla was not

Crl.App.No.879 / 20163 recorded in Ex.P2 and the accused never encroached the phiranginalla or the temple land and the Lower Court erroneously convicted and sentenced the accused and thereby prayed to set aside the conviction and sentence passed by the Lower Court by allowing this Criminal

Appeal.

07.Per contra, the learned Additional Public Prosecutor submitted that the prosecution had produced sufficient evidence against the accused and the Lower Court rightly convicted and sentenced the accused and thereby prayed to confirm the Conviction and Sentence passed by the Lower Court.

08.Now the points for determination are:

01.Whether the prosecution proved the guilt of the accused for the offences punishable U/Sec.447, 427 of

Indian Penal Code beyond all reasonable doubts ?

02.Whether there are any grounds to interfere with the

Order of Conviction and Sentence passed by the Lower

Court ?

POINT No.1:

09.Section 441 of Indian Penal Code: Criminal trespass –

Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass".

10.Section 447 of Indian Penal Code reads as: Punishment for criminal trespass — Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may

Crl.App.No.879 / 20164 extend to three months, with fine or which may extend to five hundred rupees, or with both.

11.Section 427 of Indian Penal Code: Mischief causing damage to the amount of fifty rupees — Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

12.As seen from Ex.P7 First Information Report the averments are: prior to 11-05-2015 the accused criminally trespassed into land an extent of 0-20 guntas belongs to Phirangi nala and established illegally venture namely kings colony and Moosa colony in Sy.No.193 to 196 & 200 which are adjacent to the Phiranginala and there is a Hanuman temple existed in land bearing Survey No.198 to an extent of 0-08 guntas situated within the limits of Chowdariguda Village, Shamshabad

Mandal.

13.In support of the FIR averments, PW1 who is Tahsildar deposed about the encroachment caused by the accused and that the once the road was removed and again the accused laid road without any kind of permission and that he instructed the Additional Mandal

Revenue Inspector to inspect the property and file report and after submission of Ex.P1 report alleging the encroachment by the accused,

PW1 filed Ex.P3 police report against the accused for taking necessary legal action. During the course of cross-examination nothing was elicited to disbelieve his evidence and the entire cross-examination went on questioning that there is no encroachment of phirangi nala and private land is mixed in the phiranginala for which he denied the suggestions. There is corroboration by PW1 to the averments of FIR.

Crl.App.No.879 / 20165

14.PW2 who is Village Revenue Officer deposed in the similar lines of PW1 and also stated about the inspection and survey of the disputed area and filed Ex.P2 survey report showing the encroachment by the accused and during the course of cross-examination nothing was elicited to disbelieve his evidence and he stood for test of cross- examination.

15.PW3 & PW4 deposed that they know the accused and his real estate business and they also stated about the existence of

Phiranginalla. Even though both these witnesses turned hostile to the case of the prosecution, their evidence can be considered to the extent of existence of phiranginalla.

16.PW5 who is panch witness to Ex.P6 crime details form stated about the preparation of rough sketch and during the course of cross- examination nothing was elicited to disbelieve his evidence.

17. PW6 who is Investigating Officer of this case about the registering of First Information Report, examination of list of witnesses, visiting of scene of offence and conduction of scene of offence panchanama. He also stated about the issuance of Ex.P8 Section 41-A notice which includes the averments of the case and the accused was called for reasonable explanation within three days. During the course of cross-examination nothing was elicited to disbelieve his evidence and there are no lacunas in the investigation of the case.

18.The accused gave a reply to Ex.P8 notice stating that denying all the allegations of the prosecution that there is no encroachment as alleged by the prosecution and that he is the owner of the land in Sy.No.195, 196 & 197 and 200 and further replied that there is no hindrance to the free flow of water in the nala. Therefore the accused admitted that there is nala and he also admitted that he laid

Crl.App.No.879 / 20166 road in the place of phiranginala and it is not the case of the accused that he took permission from concerned authorities before laying road.

Therefore in view of evidence of prosecution witnesses and survey report and sketch map it is established that the accused laid road and encroached the public property.

19.At this stage, it is pertinent for me to go through the provision of Section 57 of Indian Evidence Act as the learned counsel for the accused vehemently contended that the learned Magistrate cannot take judicial notice of the recent rains as per Section 57 and cannot make any observations in this case. So Section 57 (13) of Indian

Evidence Act reads as: (13) The rule of the road, on land or at sea. In all these cases, and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference. If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so. The Lower Court made the following observations: “In the recent rains fell in the State of Telangana caused havoc and totally inundated most part of city of Hyderabad. For the reason there is no way for the rain water to flow out of City because of encroachment of public canals and tanks and made the city as concrete jungle.” It is settled law that the list given U/Sec.57 of Indian Evidence

Act is not exhaustive and furthermore there is no bar for any Court to take into judicial notice the facts which are in the common knowledge of every person. Therefore in view of the recent rains there is no way for the rain water to flow outside due to encroachments caused to the public canals and tanks. So in this matter firstly the prosecution established that there is phiranginala, secondly, that the accused laid

Crl.App.No.879 / 20167 road as it is also admitted by the accused in his reply to Ex.P8 notice under Section 41 (A) of Cr.P.C., and thirdly the said road was laid without any plan or permission. Therefore this Court holds that the prosecution established the guilt of the accused beyond all reasonable doubt that the accused without any permission constructed and encroached land of phiranginala and temple road which are Government lands and trespassed into the same and thereby the accused is liable for conviction U/Sec.447 and 427 of India Penal Code. Accordingly this point is answered.

POINT No.2:

20.As seen from the Judgment of the Lower Court, it discussed every aspect minutely and rightly came to the conclusion that the prosecution proved the guilt of the accused for the offence punishable

Under Sections 447 and 427 of Indian Penal Code. Therefore the impugned Judgment of the Lower Court is not perverse nor it is not a plausible view nor there is non-consideration of any evidence or there is palpable misreading of evidence, etc. or there had been some miscarriage of justice in the way the trial Court has appreciated the evidence. Therefore there are no grounds to interfere with the

Judgment of the Lower Court. Consequently, the Conviction Order passed by the Lower Court is hereby confirmed.

21.So far as the sentence is concerned, the Lower Court sentenced the accused to undergo Rigorous Imprisonment for a period of six months and to pay fine of Rs.500/- for the offence punishable

U/Sec.427 of Indian Penal Code and further sentenced to undergo

Rigorous Imprisonment for a period of a period of three months and to pay fine of Rs.500/- for the offence punishable U/Sec.447 of Indian Penal

Code. For total fine amount of Rs.1000/- IDSI for three months. Default

Crl.App.No.879 / 20168 sentence shall run consecutively and substantive sentence shall run concurrently.

22.In view of the facts and circumstances of this case, the sentence passed by the Lower Court is modified as follows: the accused is sentenced to undergo Simple Imprisonment for a period of one month and to pay fine of Rs.500/- for the offence punishable U/Sec.427 of

Indian Penal Code IDSI for one week, and further the accused is also sentenced to undergo Simple Imprisonment for a period of one month and to pay fine of Rs.500/- for the offence punishable U/Sec.447 of

Indian Penal Code IDSI for one week. Both substantive sentences shall run concurrently. Accordingly this point is answered.

23.In the result, the Criminal Appeal is partly allowed confirming the Conviction, and Sentence Order passed by the Lower

Court is modified accordingly, the accused sentenced to undergo Simple

Imprisonment for a period of one month and to pay fine of Rs.500/- for the offence punishable U/Sec.427 of Indian Penal Code IDSI for one week, and further sentenced to undergo Simple Imprisonment for a period of a period of one month and to pay fine of Rs.500/- for the offence punishable U/Sec.447 of Indian Penal Code IDSI for one week.

Both substantive sentences shall run concurrently. The Miscellaneous

Petition or Petitions, if any, pending in this Criminal Appeal shall stand closed.

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

pronounced by me in the Open Court on this Thursday, the

Thirtieth day of March, Two Thousand Seventeen.

V ADDITIONAL METROPOLITAN SESSIONS JUDGE

RANGAREDDY DISTRICT

APPENDIX OF EVIDENCE

NIL

V ADDITIONAL METROPOLITAN SESSIONS JUDGE

RANGAREDDY DISTRICT

O.P.No.932 / 2012 1

IN THE COURT OF THE CHAIRMAN, MOTOR VEHICLE ACT TRIBUNAL-CUM-

V ADDITIONAL DISTRICT & SESSIONS JUDGE, RANGAREDDY DISTRICT AT

L.B.NAGAR, HYDERABAD, TELANGANA STATE.

PRESENT: Sri.Dr.T.SRINIVASA RAO,

CHAIRMAN, MOTOR VEHICLE ACT TRIBUNAL-

CUM-V ADDITIONAL DISTRICT AND SESSIONS

JUDGE, RANGAREDDY DISTRICT

Tuesday, the Twenty Eighth day of March, Two Thousand Seventeen

MOTOR VEHICLE ORIGINAL PETITION No.932 / 2012 Between:

01.Bollam Lingaiah, S/o.late.Veeraiah, Age: 55 yrs, Occ: Advocate,

02.Bollam Nagamani, W/o.B.Lingaiah, Age: 49 yrs, Occ: Household, Both are R/o.Flat No.543, Janapriya Apartments, H.No.1-1-343/546, Kothapet, Rangareddy District …Petitioners AND

01.Ravi Kumar, S/o.Rajaiah, Age: Major, R/o.H.No.10-2-11, Thanagally, Near Potha Lingaiah Temple, Big bazar, Nizambad

02.United India Insurance Company Limited, Rep. by Branch Officer, P.B.No.313, Godown Road, Nizamabad District (Policy No.050700/31/11/01/00000750 valid from 09-06-2011 to

08-06-2012) ...Respondents

This Motor Vehicle Original Petition came before me for final hearing in the presence of Sri.K.Venkataiah, Counsel for the Petitioners and Sri.N.J.Sunil Kumar, Counsel for Respondent No.2 and the Respondent No.1 remained exparte and upon perusal of the material papers on record and the matter stood over for consideration till this day, this Tribunal now delivered the following:

:: O R D E R ::

01.This Motor Vehicle Original Petition is filed by the petitioners under Section 166 of the Motor Vehicle Act, 1988 and Rules 455 of

Andhra Pradesh Motor Vehicle Rules, 1989 Read with Section 163-A 140 (C) of Andhra Pradesh Motor Vehicle Act, 1988 claiming compensation of

Rs.30,00,000/- for the death of the deceased Bollam Anjaiah Showry

Yadav in a road accident.

02.Brief facts of the petitioners' case is as follows: On 17-02- 2012 at about 04-30 pm., while the deceased was proceeding on Honda

Unicon bike bearing No.AP 09 BY 5002 from Nizamabad to Hyderabad and suddenly one TATA ACC Trolley bearing No.AP 25 W 0810 herein

O.P.No.932 / 2012 2 after referred as crime vehicle came in a high speed and in rash and negligent manner without following traffic rules and dashed the deceased from opposite side, due to which the deceased died on the spot as he sustained head injury. A case in Cr.No.38/2012 was a registered by Police Dichpally against the driver of the Crime Vehicle in this regard.

03.The Respondent No.1 remained exparte. The Respondent

No.2 filed counter filed denying the petition averments and inter alia further contended that the claim of the petitioners is excessive and there is contributory negligence on the part of the deceased and the respondent sought for protection U/Sec.147, 149 and 170 of Motor

Vehicle Act and therefore this respondent is not liable to pay any compensation and prayed for dismissal of this Original Petition against this Respondent.

04.To prove the case of the petitioners, the petitioner No.1 was examined as PW1 and Eyewitness was examined as PW2 and got marked Ex.A1 to A6. On behalf of the respondents, Ex.B1 was marked and no oral evidence was adduced.

05.Heard both sides and perused the record. Both sides also filed Written Arguments.

06.In view of the above pleadings, the following issues are framed:

01.Whether the accident is occurred on 17-02-2012 at 04-30 hours near Gannaram Village outskirts of Dichpally of

Nizambad District causing death of the deceased Bollam

Anjan Showery Yadav due to rash and negligent driving of

TATA Ace Trolley No. AP 25 W 0810 being driven by

Respondent No.1 ?

02.Whether petitioners are entitled to compensation, if so, to what amount and from which respondent ?

O.P.No.932 / 2012 3

03.To what relief ?

ISSUE No.1 & 2:

07.As seen from the evidence of PW1 he reiterated the petition averments in his chief affidavit. During the course of cross-examination, nothing was elicited to disbelieve their evidence except putting some bald suggestions which were denied.

08.Whereas PW2 who is eyewitness to the accident stated that he witnessed the accident and due to rash and negligence on the part of the driver of the crime vehicle only the accident occurred and during the course of cross examination nothing was elicited to disbelieve his evidence except putting some bald suggestions which he denied.

09.Now coming to the documentary evidence of the petitioners,

Ex.A1 is the copy of First Information Report along with complaint which show that the accident occurred due to rash and negligent driving of the driver of the crime vehicle. Ex.A2 is the copy of the Charge sheet filed alleging that the accused/driver of the crime vehicle drove the crime vehicle in rash and negligent manner and caused the death of the deceased. Ex.A3 is the Certified copy of scene of offence panchanama,

Ex.A4 is the Inquest report of the deceased which supports the version of the petitioners.

10.In this matter the respondent took a plea of contributory negligence on the part of the deceased but no oral or documentary evidence adduced in this regard. Therefore this Court holds that the evidence of PW1 & PW2 coupled with Ex.A1 to A4 clinchingly established the fact of rash and negligent driving on the part of the driver of the crime vehicle and the deceased died in the alleged accident. So the driver of the crime vehicle is responsible for the death of the deceased in road accident.

O.P.No.932 / 2012 4

11.Now coming to the age of the deceased is concerned, claim of the petitioners is that the deceased is aged about 25 years and moreover the postmortem report also shows the age of the deceased as 25 years, there is no dispute with regard to the age of the deceased.

Therefore this Court holds that the age of the deceased is 25 years at the time of accident. Since the age of the deceased 25 years as per decision reported in Smt.Sarala Verma and others and Delhi Transport

Corporation and another 2009 (3) Supreme 487 wherein it was held that “21. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying

Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years,

M-7 for 61 to 65 years and M-5 for 66 to 70 years. ” In the present case on hand the multiplier applicable is 18 for the age group of 21-25 years.

12.In so far as the income of the deceased is concerned, the petitioners are claiming that the deceased is an Advocate and Ex.A5 certificate issued by Bar Council of Andhra Pradesh, Ex.A6 Identity card of the deceased also supports the version of the petitioners. With regard to the earnings of the deceased is concerned, the petitioners are claiming that he is earning Rs.75,000/- per month i.e., as a Junior

Advocate and Rs.25,000/- as a Standing Counsel for Indus Bank and contributing the same to the family but the petitioners did not file any proof to that effect, and as seen from the evidence it is clear that the deceased is a practicing Junior Advocate. Therefore this Court holds

O.P.No.932 / 2012 5 that the monthly earnings of the deceased can be assessed as

Rs.10,000/- per month because in Hyderabad there are general notice boards in the Court premises stating that they will pay Rs.10,000/- for services of Junior Advocate and moreover the father of the deceased is also an Advocate, therefore under any circumstances the deceased's earning can be assessed at Rs.10,000/- per month and when it is multiplied with 12 then the annual income of the deceased is

Rs.1,20,000/- and as per decision reported in Smt.Sarala Verma and others and Delhi Transport Corporation and another 2009 (3) Supreme 487 wherein it was also held that “15. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. ” Therefore Rs.60,000/- of the income is deducted towards his personal income, then it arrives at

Rs.60,000/- per annum and when the same is multiplied with multiplier 18 it arrives at Rs.10,80,000/-. The petitioners are also entitled for

Rs.50,000/- under the conventional heads towards loss of love and affection, funeral expenses, last rites as held in Kerala SRTC Vs.

Susamma Thomas which is referred to in Lata Wadhwa's case.

Therefore the total compensation awarded to the petitioners is

Rs.11,30,000/- (Rupees Eleven Lakhs Thirty Thousand only).

13.As seen from Ex.B1 copy of insurance policy, the insurance policy was commencing from 09-06-2011 to 08-06-2012 and the accident was occurred on 17-02-2012. Therefore, Ex.B1 policy shows that there is cover of insurance and the crime vehicle was insured with the respondent No.2 insurance company and the policy covers the risk.

Therefore both the respondent No.1 and the respondent No.2 are jointly

O.P.No.932 / 2012 6 and severally liable to pay the compensation. Accordingly these issues are answered.

ISSUE No.3:

14.In the result, this Motor Vehicle Original Petition is partly allowed with costs granting compensation of Rs.11,30,000/- (Rupees

Eleven Lakhs Thirty Thousand only). The petitioners are also entitled for future interest @ 9 % per annum from the date of the petition till the date of realization. The rest of the claim of the petitioners is hereby dismissed. The entire compensation amount shall be deposited by the both Respondents jointly and severally within 30 days from the date of this Judgment. Out of the total compensation, the petitioner No.1 is entitled for an amount of Rs.5,65,000/- and the petitioner No.2 is entitled for an amount of Rs.5,65,000/- and both the petitioners are permitted to withdraw half of the amount and balance amount shall be kept in Fixed Deposit with any Nationalized Bank for a period of three years and thereafter the petitioners are permitted to withdraw the same together with accrued interest thereon. Advocate fees is fixed at

Rs.2,000/-.

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

pronounced by me in the Open Court on this Tuesday, the Twenty

Eighth day of March, Two Thousand Seventeen.

CHAIRMAN MOTOR VEHICLE ACT TRIBUNAL-cum-

V ADDITIONAL DISTRICT & SESSIONS JUDGE,

RANGAREDDY DISTRICT

APPENDIX OF EVIDENCE

WITESSES EXAMINED

On behalf of the Petitioner/s:

PW1 Bollam Lingaiah PW2 N.Kishan Rao

On behalf of the Respondent/s: NIL

O.P.No.932 / 2012 7

EXHIBITS MARKED

On behalf of the Petitioner/s:

Ex.A1Certified copy of First Information Report Ex.A2Certified copy of Charge sheet Ex.A3Certified copy of scene of offence panchanama Ex.A4Certified copy of Inquest report Ex.A5Certificate issued by Bar Council of Andhra Pradesh Ex.A6Identity card of the deceased

On behalf of the Respondent:

Ex.B1 Insurance Policy

CHAIRMAN MOTOR VEHICLE ACT TRIBUNAL-cum-

V ADDITIONAL DISTRICT & SESSIONS JUDGE,

RANGAREDDY DISTRICT

O.P.No.2 / 20151

IN THE COURT OF THE CHAIRMAN MOTOR VEHICLE ACT TRIBUNAL-CUM-

V ADDITIONAL DISTRICT AND SESSIONS JUDGE, RANGAREDDY DISTRICT

AT L.B.NAGAR, HYDERABAD

PRESENT: Sri.Dr.T.SRINIVASA RAO,

CHAIRMANMOTORVEHICLEACT

TRIBUNAL-CUM-V ADDITIONAL DISTRICT &

SESSIONS JUDGE, RANGAREDDY DISTRICT

Thursday, the Thirtieth day of March, Two Thousand Seventeen

MOTOR VEHICLE ORIGINAL PETITION No.2 / 2015 Between: Uma Devi, W/o.Madhusudhan Rao, Age: 40 yrs, Occ: Housewife, R/o.A-8, NFC Nagar, Ghatkesar Mandal, Rangareddy District …Petitioner AND

01.Kanzerla Devendar Rao, S/o.Narasimha Rao, Age: 67 yrs, Occ: Retd., Employee, R/o.3-9-654, Reddy Colony, Hanumakonda, Warangal District. (Owner of the Tata Indica Vehicle bearing No. AP 36 L 6304).

02.The United India Insurance Company Limited., Rep. by its Regional Manager, United India Insurance Buildings, Basheerbagh,

Hyderabad ...Respondents

This Motor Vehicle Original Petition came before me for final hearing in the presence of M/s.G.L.Narasimha Rao, Counsel for the Petitioner and Sri.G.Kiran Kumar, Counsel for Respondent No.1 and Sri.A.Sowbhagya Lakshmi, Counsel for Respondent No.2 upon perusal of the material papers on record and the matter stood over for consideration till this day, this Tribunal now delivered the following:

:: O R D E R ::

01.This Motor Vehicle Original Petition is filed by the petitioner under Section 166 of the Motor Vehicle Act, 1988 r/w. Section 163-A 140 (C) Andhra Pradesh Motor Vehicle Rule, 1988 against the respondents seeking compensation of Rs.7,00,000/- for the injuries suffered in a road accident by Petitioner.

02.Brief facts of the Petitioner's case is as follows: On 12-11- 2014 at about 12-30 hours the Petitioner went to NFC Bus stop to send off her relatives and while returning one Tata Indica Car bearing No.AP 36 L 6304 came at high speed in rash and negligent manner and dashed the petitioner from back side due to which she received multiple fractures to her right leg along with other grievous injuries all over the

O.P.No.2 / 20152 body. Basing on the above accident, the Police, Ghatkesar has registered a case in Cr.No.529/2014 against the driver of the Crime

Vehicle.

03.The Respondent No.1 filed counter denying all the petition averments and inter alia further contended that VIII Special Magistrate

Court, Hasthinapuram acquitted the respondent and that the compensation and interest claimed by the petitioner is excessive and exorbitant. Thereby the Respondent prayed to dismiss the petition.

04.The Respondent No.2 filed counter denying all the petition averments and inter alia further contended that the respondent No.2 is not aware of the accident and that the crime vehicle has no valid insurance coverage and sought for protection U/Sec.140, 147, 149 and 158 of Motor Vehicle Act and that the compensation and interest claimed by the petitioner is excessive and exorbitant. Thereby the

Respondent prayed to dismiss the petition.

04.To prove the case of the Petitioner, the petitioner herself got examined as PW1 and got examined Doctors as PW2 & PW3 and got examined PW4 and PW5 who are staff of the hospital and got marked

Ex.A1 to A9. On behalf of the Respondents, no oral evidence was adduced but got marked Ex.B1 insurance policy.

05.Basing on the above pleadings, the following issues were framed:

01.Whether the accident occurred on 12-11-2014 at 1230 hours near Bus stop at NFC Nagar ?

02.Whether the said accident caused due to rash and negligent driving of the car bearing No.AP 36 L 6304 ?

03.Whether the petitioner is entitled to claim damages ? if so how much and against which of the respondents ?

04.To what relief ?

06.Heard both sides and perused the record.

ISSUE No.1 & 2:

O.P.No.2 / 20153

07.As seen from the evidence of PW1, she reiterated what she averred in the petition in her chief affidavit. During the course of cross- examination, nothing was elicited to disbelieve her evidence except putting some bald suggestions.

08.Whereas PW2 who is Doctor (Surgeon) deposed that the petitioner was treated and found three fractures and operation was conducted and dynamic hips screw fix was done and during the course of cross examination nothing was elicited to disbelieve his evidence.

09.Whereas PW3 who is the Medical Superintendent who treated the petitioner stated that he examined the petitioner and treated her and found laceration and obration and swelling all over the body and scanning and xrays were done and during the course of cross examination nothing was elicited to disbelieve his evidence except by putting bald suggestions which were denied.

10.Whereas PW4 who is working as Manager, Administration in

Adithya Hospital stated about the joining of the petitioner as out-patient and he stated also stated about the medical bills and during the course of cross-examination nothing was elicited to disbelieve his evidence.

11.Whereas PW5 who is Billing-in-charge in Bhagavandevi

Hospial deposed about the medical bills and receipts for an amount of

Rs.1,80,621/- and during the course of cross-examination nothing was elicited to disbelieve his evidence.

10.Now coming to the documentary evidence, Ex.A1 is the

Certified Copy of FIR, Ex.A2 is the Certified copy of the Charge Sheet show that there is rash and negligence on the part of the driver of the crime vehicle and the petitioner sustained the above grievous injuries,

Ex.A3 is the Certified copy of Medico Legal Record shows that the petitioner sustained three fractures in the above accident, Ex.A4 is the

O.P.No.2 / 20154 scene of offence panchanama, Ex.A5 is the medical bills for Rs.16,780/-,

Ex.A6 is the medical bills of Bhagavan Devi Hospital for Rs.1,85,731/-,

Ex.A7 & Ex.A8 are the medical bills worth of Rs.5,673/-, Ex.A9 is the X-

Rays.

11.So the evidence of PW1 coupled with Ex.A1 to A4 clinchingly established that the disputed accident was occurred and it was due to rash and negligent driving on the part of the driver of the crime vehicle and the petitioner sustained above three fractures in the road traffic accident. Accordingly these issues are answered.

ISSUE No.2:

12.As seen from Ex.B1 copy of insurance policy, the insurance policy was commencing from 25-05-2014 to 24-05-2015 and the accident was occurred on 12-11-2014. Therefore, Ex.B1 policy shows that there is cover of insurance and the crime vehicle was insured with the respondent No.2 insurance company and the policy covers the risk.

Therefore both the respondent No.1 and the respondent No.2 are jointly and severally liable to pay the compensation.

13.Now coming to the aspect of quantum of compensation, it is established by the evidence of PW1 to PW5 coupled with Ex.A3 Certified copy of Medico Legal Record and Ex.A7 bunch of X-Rays show that the petitioner sustained three fractures: 01.fracture femur left side lower thigh, 02.fracture femur right side in the middle thigh, 03.trochanteric fracture left hip. As per Ex.A5 medical bills worth of Rs.16,780/-, Ex.A6 is the medical bills of Bhagavan Devi Hospital for Rs.1,85,731/-, Ex.A7 &

Ex.A8 are the medical bills worth of Rs.5,673/- but as seen from the medical bills of Aditya Hospital the medical bill of mother of the petitioner i.e., Vijaya Lakshmi was also filed therefore those four bills worth of Rs.200, 550, 220, 2500 each are not considered. Therefore the

O.P.No.2 / 20155 petitioner is entitled for medical expenses of Rs.2,04,714/-. The petitioner sustained three grievous injuries: 01.fracture femur left side lower thigh, 02.fracture femur right side in the middle thigh, 03.trochanteric fracture left hip, so for each grievous injury she is entitled for Rs.50,000/- i.e., Rs.1,50,000/- and the petitioner is also entitled for Rs.50,000/- towards pain and sufferance and she is also entitled Rs.50,000/- towards extra nourishment and medicine.

Therefore the petitioner is entitled for total compensation of

Rs.4,54,714/- (Rupees Four Lakhs Fifty Four Thousand Seven Hundred

Fourteen). Accordingly these issues are answered.

ISSUE No.3:

13.In the result, this Motor Vehicle Original Petition is partly allowed granting compensation of Rs.4,54,714/- with costs and future interest @ 7 % per annum from the date of petition till the date of deposit. The compensation amount shall be payable by the both the

Respondents jointly and severally within 30 days from the date of this

Judgment. The rest of the claim of the petitioner is dismissed. On deposit of the said compensation amount, the petitioner is permitted to withdraw half of the amount and balance amount shall be kept in Fixed

Deposit with any Nationalized Bank for a period of three years.

Meanwhile the petitioner is permitted to withdraw the interest accrued thereon for every year and after three years the petitioner is permitted to withdraw the entire amount. Advocate fees is fixed at Rs.2,000/-.

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

pronounced by me in the Open Court on this Thursday, the

Thirtieth day of March, Two Thousand Seventeen.

CHAIRMAN MOTOR VEHICLE ACT TRIBUNAL-cum-

V ADDITIONAL DISTRICT & SESSIONS JUDGE,

RANGAREDDY DISTRICT

O.P.No.2 / 20156

APPENDIX OF EVIDENCE

WITESSES EXAMINED

On behalf of the Petitioner:

PW1S.Uma Devi

PW2Dr.Liladhar

PW3M.Rajesh Kumar

PW4Dr.A.Kalyana Chakravarthi

PW5MD.Sareef

On behalf of the Respondent: NIL

EXHIBITS MARKED

On behalf of the Petitioner:

Ex.A1Certified Copy of FIR

Ex.A2Certified copy of the Charge Sheet

Ex.A3Certified copy of Medico Legal Record

Ex.A4Scene of offence panchanama

Ex.A5 to A8Medical bills

Ex.A9X-Rays

On behalf of the Respondent: NIL

CHAIRMAN MOTOR VEHICLE ACT TRIBUNAL-cum-

V ADDITIONAL DISTRICT & SESSIONS JUDGE,

RANGAREDDY DISTRICT