Sri T.V.S.S. Prakash

I ADDITIONAL CIVIL JUDGE JUNIOR DIVISION-CUM-XV ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS BHEEMUNIPATNAM

JCJ Bheemunipatnam · Visakapatnam · Andhra Pradesh

Sri T.V.S.S. Prakash, I ADDITIONAL CIVIL JUDGE JUNIOR DIVISION-CUM-XV ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS BHEEMUNIPATNAM, is posted at JCJ Bheemunipatnam, Visakapatnam, Andhra Pradesh, India. 20 court orders on record since 2020. 5 judgments with full text available. Primarily handles CC cases.

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CC/362/2019 Acquitted

PM PALEM PS vs PATHURI RAJENDRA PRASAD

30 Mar 2021

1 C.C.No.362/2019 XVI AM M/BML

IN THE COURT OF XVI ADDL. METROPOLITAN MAGISTRATE

BHEEMUNIPATNAM

Present: T.V.S.S.PRAKASH

XVI Addl. Metropolitan Magistrate,

Bheemunipatnam.

CALANDER CASE NO.362 OF 2019

(Cr.No.102/2019 of Pothinamallayya Palem Police Station)

Tuesday this the 30 th day of March, 2021.

BETWEEN:

State Represented by the Inspector of Police, Pothinamallayyapalem Police Station, Visakhapatnam city.

...Complainant.

AND:

Pathuri Rajendra Prasad, S/o Manmadha Rao, age 27 years, R/o MIG-I-446, 2nd bus stop, PM Palem, Visakhapatnam. Driver of Car baring No.AP 09 BN 1218.

...Accused.

This case having come before me for fnal hearing on 23.03.2021 in the presence of Learned A.P.P. for the State and of Sri.P.Chandramouli, Learned Counsel for the accused and upon perusing the material papers on record and upon hearing the counsel on either side, this Court delivers the following:

J U D G M E N T

1. The Inspector of Police, Pothinamallayyapalem Police Station of

Visakhapatnam city fled charge sheet against the accused U/sec.338 IPC and sec.134(a)(b), Sec.196 of M.V.Act.

2.The case of prosecution is as follows :

The contention of the prosecution is that LW1 Smt.

Y.Yellayammadevi/defacto complainant/injured gave statement to Medical

Officer, Pinnacle Hospital,s, Visakhapatnam on 26.02.2019 stating that she is blessed with three daughters and since 3 months, there are disputes between her and her husband and husband of defacto complainant is not coming to the house. In the said circumstances, the defacto complainant lodged a report at Mahila police station on 26.02.2019 and in turn, the 2 C.C.No.362/2019 XVI AM M/BML police asked the defacto complainant to come for counseling. Accordingly, the defacto complainant along with her daughters went to Mahila police station in the auto belongs to LW3 Sri K.Ramoji, who is none other than the brother of defacto complainant and the said auto bearing registration No.AP 31 TG 6359 and after completion of work, they are returning to Kommadi in the said auto and by the time they reached opposite to Prince dhaba, service road, the accused who is driver of car bearing registration No.AP 09 BN 1218 coming from car shed junction towards cricket stadium in a rash and negligent manner dashed to the auto, in which the defacto complainant and her family members are traveling at about 3.00 pm. In the said accident the defacto complainant sustained fracture injury to her right leg and the daughter of defacto complainant by name Miss.Bhargavi sustained fracture injury on her right leg and LW2 Smt. K.Varalakshmi who is mother of defacto complainant sustained bleeding injuries on her right leg. After the accident the injured were shifted to Pinnacle hospital, in high way ambulance. The above said accident has been informed to the concerned police and accordingly the inspector of police(LW8) came to the hospital and taken the statement of defacto complainant recorded by doctor of Pinnacle Hospital and she prayed to take necessary action against the driver of crime vehicle.

Basing on the aforesaid statement of defacto complainant, LW8

Inspector of police registered a case vide Cr.No.102/2019 U/sec.338 IPC and section 134(a)(b) of M.V. Act and entrusted the investigation to LW7, HC 1165. Thereafter, LW7, HC 1165 took up investigation in this case and investigated major portion of investigation and subsequently he handed over the CD fle to LW8, Inspector of police and he in turn took up the investigation and verifed the investigation done by his subordinate and found it on correct lines and after completion of investigation, LW8, Inspector of police fled charge sheet against the accused, as his investigation reveals 3 C.C.No.362/2019 XVI AM M/BML that the accused has committed this ofence U/sec.338 IPC and sec.134(a)

(b), Sec.196 of M.V.Act.

3. My Learned predecessor has taken cognizance of this case U/sec.338

IPC and sec.134(a)(b), sec.196 of M.V.Act and issued summons to the accused. After appearance of the accused, he was furnished with copies u/sec.207 Cr.P.C., and he was examined U/sec.251 Cr.P.C., for the ofences

U/sec.338 IPC and Sec.134(a)(b), Sec.196 of M.V.Act and the allegations of the prosecution has been read over and explained to the accused in Telugu language and he denied the same and claimed to try the ofence.

4.During the course of trial, the prosecution has examined Pws 1 to 6 and got marked Ex.P1 to P6 on its behalf and after closer of the prosecution evidence, the accused was examined u/sec.313 Cr.P.C and the incriminating evidence of the prosecution against the accused has been read over and explained to him in Telugu language and he denied the same and reported no defense evidence.

5. Arguments heard.

6.Now the point for determination is:

Whether the accused is the driver of crime vehicle at the time of accident and due to his rash or negligent driving, this accident has been caused and whether the accused fed away from the scene after the accident without taking the injured to the nearest hospital in order to have frst aid or inform the nearest police station under what circumstances accused could not shift to the nearest hospital and whether the accused has driven the crime vehicle without insurance as alleged by the prosecution and whether the prosecution has to proved the guilt of the accused beyond reasonable doubt?

7.POINT:

The case of the prosecution is that the Pothinamallayya Palem police received information on 27.02.20219 that the accident has been occurred in 4 C.C.No.362/2019 XVI AM M/BML their jurisdiction and the injured were shifted to Pinnacle hospital and accordingly Lw8, Inspector of police gone to the said hospital and enquired about the injured persons and LW1 Smt.Y.Yellayammadevi defacto complainant/injured who was examined as PW1 has already given statement to the medical officer in Pinnacle hospital, Visakhapatnam and he has received the same and he in turn registered the case vide Cr.No.102/2019

U/sec.338 IPC and sec.134(a)(b) of M.V.Act and entrusted the investigation to

LW7, HC 1165, who was examined as PW6. It is the contention of PW1 that she blessed with three daughters and since three months prior to this accident there are some disputes arose in between her and her husband and he is not coming to the house. PW1 lodged a report before Mahila Police station on 26.02.2019 and they asked to come for counseling and accordingly, PW1 along with her daughters and mother i.e., LW2 Smt.

K.Varalakshmi, who was examined as PW2 has gone to the said police station in the auto bearing registration No.AP 31 TG 6359, which belongs to brother of PW1 i.e., LW3 Sri K.Ramoji, who was examined as PW3 and the said auto was driven by PW3 only and after completion of work in Mahila police station, while they were returning in the same auto to Kommadi and by the time, they reached opposite to Prince dhaba, service road, the accused who is driver of car bearing registration No.AP 09 BN 1218 coming from car shed junction towards cricket stadium, in a rash and negligent manner driven by the accused and dashed to the auto, in which, PW1 and her family members are traveling driven by brother of PW1 i.e., PW3 and thereby PW1 sustained fracture injury to her right leg and daughter of PW1 by name Bhargavi sustained fracture injury to her right leg and Pw2 sustained bleeding injuries. Immediately after the accident, the injured were shifted to Pinnacle hospital, Visakhapatnam in highway ambulance for treatment. In the said circumstance, PW1 gave statement to Medical Officer 5 C.C.No.362/2019 XVI AM M/BML of Pinnacle hospital to take necessary action against the driver of crime vehicle.

8.The above said contention of prosecution has been categorically deposed by PW1 in her examination in chief and through her Ex.P1 is marked. It is the statement given by PW1 to Medical Officer of Pinnacle hospital, Visakhapatnam. The learned counsel for the accused has cross examined PW1 that this accident has not been caused due to rash or negligent driving of the accused and due to over load of auto, in which PW1 and her family members are traveling, this accident has been caused and the driver of the auto i.e., PW3 lost control over the auto and committed this accident, which has been denied by PW1. As can be seen from the evidence of PW1, it is clear that the driver of crime vehicle i.e., accused dashed to the rear part towards right side of the auto, in which PW1 and others are traveling and thereby due to hit of crime vehicle, the passengers in the auto has fallen on the road and PW1 sustained fracture injury on her right leg and daughter of Pw1 sustained fracture injury to her right thigh. The mother of

PW1 i.e., PW2 also sustained bleeding injuries. No doubt PW1 has not stated in her statement recorded by the police that she can identify the accused, if she is shown and the crime vehicle registration number is also not stated in the statement given by her to the police. Just because, PW1 has not stated in her statement given to the police regarding registration number of the crime vehicle and the accused is the driver of crime vehicle, that does not mean that the accused is not the driver of crime vehicle. So far, recording of statement of PW1 and other witnesses by the police may missed the said aspect. The other injured in this case i.e., PW2, who is none other than the mother of PW1 has not received any grievous injuries and she sustained bruises and she was treated as an out patient and she also deposed before this court that this accident has been caused due to rash and negligent 6 C.C.No.362/2019 XVI AM M/BML driving of the crime vehicle driver, who is the accused herein. The evidence of PW2 is also in the same lines as deposed by PW1. It is also suggested to

PW2 during course of cross examination by the learned counsel for the accused that the driver of auto, in which PW1 and her family members are traveling at the time of this accident has driven the auto with over load and lost control over the auto and committed this accident, which is not believable.

9.The driver of auto bearing registration No.AP 31 TG 6359, who was examined as PW3 and he is none other than brother of PW1 and son of PW2.

It is categorically deposed by PW3 that after completion of the work in Mahila

Police station at Visakhapatnam on 26.02.2019, they are coming from police station to their house in the same auto driven by PW3 and by the time, they reached opposite to Prince dhaba, service road, the accused came at high speed in a rash and negligent manner and dashed to the auto, in which PW1 and other family members are traveling. Due to accident, PW1, PW1 daughter sustained fracture injuries and PW2 sustained bleeding injuries and

PW3 also might have received injuries in this case and he by observing the crime vehicle in the opposite direction and all of a sudden, he has taken the auto to left side of the road and he narrowly escaped and the crime vehicle dashed to rear right side part of the auto and caused this accident. The evidence of PW3 also clearly shows that this accident has been caused due to rash and negligent driving of the accused with the crime vehicle. It is also deposed by PW3 that after the accident the accused stayed there for few minutes and fed away from the scene and the neighbours who are present there informed to the high way ambulance and the injured were shifted to

Pinnacle hospital, Visakhapatnam in the said ambulance for treatment. It is also clear that PW1 and her daughter Bhargavi undergone treatment as inpatient and PW1 has also undergone operation for her fracture injury. The 7 C.C.No.362/2019 XVI AM M/BML evidence of PW3 also clearly shows that he is not at fault in driving his auto.

The eye witness to the accident has been examined as PW4 and he is working in cell point at car shed junction and he is very much present at the scene and few yards away at the time of this accident and the accused drove the crime vehicle bearing registration No.AP 09 BN 1218 and dashed to the auto, which is driven by PW3 and thereby caused this accident. PW4 has also deposed that the injuries sustained by PW1 and her daughter and PW4 identifed the driver of crime vehicle as accused herein. The above said aspect has been categorically deposed by PW4 in his examination in chief and the evidence of PW4 remained unshattered as he was not cross examined by the learned counsel for the accused and further it is recorded by my leaned predecessor that the cross examination reported Nil by the accused. As can be seen from the aforesaid evidence of PW4 it is well proved that the accused is the driver of crime vehicle at the time of this accident and due to his rash and negligent driving this accident has been caused. The accused has not stayed at the scene after the accident and he has not ventured to shift the injured person to any hospital in order to give frst aid and also the accused has not tried to report the matter to the police concerned, which clearly shows the negligent acts of the accused.

10.The Motor Vehicle Inspector was examined by the prosecution as PW5 and he received requisition from PM Palem Police to inspect the crime vehicle bearing registration No.AP 09 BN 1218 and accordingly he inspected the crime vehicle at PM Palem police station premises and found that the right side head light broken, dent on right side of the bonnet, right side indicator broken at front and front glass broken at the right side and he opined that this accident occurred not due to any mechanical defects of the crime vehicle after conducting road test and issued Ex.P2 inspection report.

It is the contention of the learned counsel for the defense that when two 8 C.C.No.362/2019 XVI AM M/BML vehicles are involved in this accident, it is the responsibility of the police to see that both the vehicles are to be inspected by the M.V. Inspector. In the present case on hand the vehicle driven by the accused alone was inspected by M.V. Inspector and the auto in which the injured are traveling is not inspected by him. No doubt the contention of the learned defense counsel can also taken into consideration, but at the same time when it is categorically deposed by the prosecution witnesses that this accident has been caused by the accused due to his rash and negligent driving and the evidence of PW4 is also not shattered as he was not cross examined and therefore, it is clear that this accident has been occurred by the accused only.

11.The Investigation Officer, who investigated major portion of investigation was examined as PW6 and the investigation done by LW8,

Inspector of Police, who registered the case and endorsed the investigation to PW6 and thereafter, after completion of major portion of investigation,

PW6 in turn handed over the CD fle to LW8, Inspector of Police and he fled charge sheet against the accused. As can be seen from the evidence of PW6, it is clear that basing on the statement of PW1 vide Ex.P1, the Inspector of

Police(LW8) registered the case and issued Ex.P3 FIR. Thereafter, PW6 taken up investigation and visited the scene of ofence and drawn rough sketch of scene vide Ex.P4. The wound certifcates issued by Medical Officer, regarding PW1 is marked as Ex.P5 and the wound certifcate of daughter of

PW1, it is also marked as Ex.P6. The investigating agency has made their investigation on proper perspective and at the same time it is incumbent on the investigation officer to record the statement regarding identifcation of the accused, if he is shown to the direct witness is missing in all the statements recorded by the police. In the present case on hand, the entire evidence of the prosecution is clear that the accused is the driver of crime 9 C.C.No.362/2019 XVI AM M/BML vehicle and due to his rash and negligent driving only this accident has been caused and after the accident he has not ventured to shift the injured to the hospital or informed to the police. It is clearly apparent that lethargitic attitude of the accused. The prosecution also alleged that the crime vehicle is uninsured and therefore, they have charge the accused U/sec.196 of

M.V.Act. No where in the entire investigation or in the evidence of prosecution it has been established that the crime vehicle is uninsured. It is the duty on the part of prosecution to shown some piece of document obtaining from the concerned authorities that no insurance has been done to the crime vehicle and the said aspect is missing all through.

12.Taking into consideration, the over all circumstances of the case, the prosecution has projected and proved the guilt of the accused regarding his rash and negligent driving of the crime vehicle at the time of this accident and he also fed away from the scene immediately after the accident leaving the injured to their fate without shifting them to nearest hospital for frst aid or informed the accident to the concerned police and therefore, the prosecution has proved the guilt of the accused beyond reasonable doubt for the ofence u/sec.338 IPC and section 134(a)(b) of M.V. Act. So far, the section 196 of M.V. Act is concerned that the crime vehicle is un-insurance, the prosecution could not establish the same and therefore, the accused cannot be found guilty on the said section.

13.In the light of above discussion, I answered this point regarding the ofence U/sec.338 IPC and section 134(a)(b) of M.V. Act in favour of prosecution and against the prosecution for the ofence U/sec.196 of M.V.Act.

14.In the result, accused found not guilty and he is acquitted U/sec.255(1)

Cr.P.C. for the ofence U/sec.196 of M.V. Act.

10 C.C.No.362/2019 XVI AM M/BML The accused found guilty and he is convicted U/sec.255(2) Cr.P.C. for the ofence U/sec.338 IPC and section 134(a)(b) of M.V. Act, which is punishable u/sec.187 of M.V. Act (Dictated to the Stenographer Gr-II, transcribed by her and after correction,

pronounced by me in the open Court on this the 30th day of March, 2021).

Sd/-T.V.S.S.Prakash

XVI Additional Metropolitan Magistrate, Bheemunipatnam.

When questioned about the quantum of sentence, the accused pleaded for mercy. This is not a case where P.O., Act can be applied and at the same time some lenient view can be taken by imposing fne on the accused for the ofence proved against him.

The accused is sentenced to pay a fne of Rs.1,000/-(Rupees one thousand only), in default SI for one month for the ofence U/sec.338 IPC, and further sentenced to pay a fne of Rs.500/-(Rupees fve hundred only) in default of SI of 15 days for the ofence u/sec.134(a)(b) of M.V.Act, which is punishable U/sec.187 of M.V. Act. Total fne of Rs.1,500/-(Rupees one thousand and fve hundred only).

The remand period if any, undergone by the accused, shall be given set-of U/s.428 of Cr.P.C.

Accused informed about his right of appeal and right to receive a free copy of judgment which is to be furnished to him now, if he does not pay fne and undergo sentence. The bail bonds of the sureties shall stand cancelled after expiry of the appeal time.

The office is directed to prepare the conviction warrant accordingly.

Office is further directed to serve the copy of the judgment forthwith to the accused, if he fails to pay fne amount and undergo sentence in default of payment of fne amount imposed.

(Dictated to the Stenographer Gr-II, transcribed by her and after correction,

pronounced by me in the open Court on this the 30th day of March, 2021).

Sd/-T.V.S.S.Prakash

XVI Additional Metropolitan Magistrate, Bheemunipatnam.

11 C.C.No.362/2019 XVI AM M/BML

APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution: For Defense:

PW-1: Smt. Y.Yellayamma Devi -None- PW-2: Smt. K.Varalakshmi PW-3: Sri K.Ramoji PW-4: Sri K.Venkatesh PW-5: Sri M.Anil Kumar (Asst.M.V.Inspector) PW-6: Sri Ch.Srikanth( HC 1165)

Exhibits marked

For Prosecution:

Ex.P1 Dt.27.02.2019: Statement of PW1 recorded by Medical Officer in Pinnacle Hospital India Private Limited, Visakhapatnam. Ex.P2 Dt……………...: M.V.report issued by PW5. Ex.P3 Dt.27.02.2019: FIR in Cr.No.102/2019 U/sec.338 IPC and sec.134(a)(b) of M.V Act Ex.P4 Dt……………...: Rough sketch of the scene prepared by PW6 Ex.P5 Dt.26.02.2019: Wound certifcate of PW1 issued by Medical Officer, Pinnacle Hospitals India Pvt., Ltd., Visakhapatnam. Ex.P6 Dt.26.02.2019: Wound certifcate of daughter of PW1 issued by Medical Officer, Pinnacle Hospitals India Pvt.,Ltd., Visakhapatnam.

For Defense: Nil-

Material Object:-Nil-

Sd/-T.V.S.S.Prakash

XVI ADDITIONAL MET ROPOLITAN MAGISTRATE,

BHEEMUNIPATNAM

//True Copy//

XVI Addl .Metropolitan Magistrate Bheemunipatnam 12 C.C.No.362/2019 XVI AM M/BML

CALENDER & JUDGMENT

IN THE COURT OF XVI ADDl METROPOLITAN MAGISTRATE

BHEEMUNIPATNAM, VISAKHAPATNAM DISTRICT.

CALANDER CASE NO.362 OF 2019

(Cr.No.102/2019 of P.M.Palem Police Station)

Date of ofence :26.02.2019 Date of Report or Complaint:27.02.2019 Date of Apprehension of the:-- accused or Date of apperance of the accused in the Court Date of Commencement of Trial:12.02.2020 Date of closure of Trial:18.03.2021 Date of Sentence on order:30.03.2021. Explanation for delay or remarks:The delay is due to non-production of accused and witnesses from time to time, as such there is a delay. Name of the Complainant:State Represented by the Inspector of Police, Pothinamallayyapalem Police Station, Visakhapatnam city. Name of the Accused:Pathuri Rajendra Prasad, S/o Manmadha Rao, age 27 years, R/o MIG-I-446, 2nd bus stop, PM Palem, Visakhapatnam. Driver of Car baring No.AP 09 BN 1218. Ofences:U/sec.338 IPC and sec.134(a)(b) and sec.196 of M.V.Act. Finding :Accused found not guilty for the ofence U/Sec.196 of M.V. Act and found guitly for the ofence U/sec.338 IPC and sec.134(a)(b) of M.V.Act.

Sentence:

In the result, accused is found not guilty U/sec.196 of M.V.Act and he is acquitted u/sec.255(1) Cr.P.C for the said ofence.

The accused is found guilty and he is convicted U/sec.255(2) Cr.P.C. for the ofence U/sec.338 IPC and sec.134(a)(b) of M.V.Act.

The accused is sentenced to pay a fne of Rs.1,000/-(Rupees one thousand only), in default SI for one month for the ofence U/sec.338 IPC and further sentenced to pay a fne of Rs.500/-(Rupees fve hundred only) in default of SI of 15 days for the ofence u/sec.134(a)(b) of M.V.Act, which is 13 C.C.No.362/2019 XVI AM M/BML punishable U/sec.187 of M.V. Act. Total fne of Rs.1,500/-(Rupees one thousand and fve hundred only).

The remand period if any, undergone by the accused, shall be given set- of U/s.428 of Cr.P.C.

The office is directed to prepare the conviction warrant accordingly.

Office is further directed to serve the copy of the judgment forthwith to the accused, if he fails to pay fne amount and undergo sentence in default of payment of fne amount imposed.

d/-Smt.Shammi Parvin S uB Sd/-T.V.S.S.Prakash egu

Sd/-T.V.S.S.Prakash

XVI ADDITIONAL MET ROPOLITAN MAGISTRATE,

BHEEMUNIPATNAM

//True Copy//

XVI Addl .Metropolitan Magistrate Bheemunipatnam

CC/300269/2018 Acquitted

P.M.Palem P.S. vs Baggina Goovind

23 Aug 2021

1 C.C.No.269/2018 XVI AM M/BML

IN THE COURT OF XVI ADDL. METROPOLITAN MAGISTRATE

BHEEMUNIPATNAM

Present: T.V.S.S.PRAKASH

XVI Addl. Metropolitan Magistrate,

Bheemunipatnam.

CALANDER CASE NO.269 OF 2018

(Cr.No.416/2018 of Pothinamallayya Palem Police Station)

Monday this the 23 rd day of August, 2021.

BETWEEN:

State Represented by the Sub Inspector of Police, Pothinamallayyapalem Police Station, Visakhapatnam city.

...Complainant.

AND:

Baggina Govind, S/o Late Simhachalam, 69 years, K.Velama, R/o D.No.14-199/1, Tailor colony, near Bus Stop, Madhurawada, Kommadi, Visakhapatnam.

...Accused.

This case having come before me for fnal hearing on 19.08.2021 in the presence of Learned A.P.P. for the State and of Sri S.Suresh Reddy, Learned Counsel for the accused and upon perusing the material papers on record and upon hearing the counsel on either side, this Court delivers the following:

J U D G M E N T

1. The Sub Inspector of Police, Pothinamallayyapalem Police Station of

Visakhapatnam city fled charge sheet against the accused U/sec.448, 454, 380 IPC .

2.The case of prosecution is as follows :

The contention of the prosecution is that LW1 Smt. Dasiri Rohini

Rajya Laxmi/defacto complainant came to police station on 25.08.2018 at 6.00 pm and lodged report stating that they run curry point , opposite to

Madhurawada Government hospital, Visakhapatnam. On 24.08.2018 they went out of station and at that time, their landlord who is accused herein with some others broke open the lock of the house and committed theft of 2 C.C.No.269/2018 XVI AM M/BML house hold articles worth of Rs.40,000/- approximately and therefore, she requested to take necessary action.

Basing on the aforsaid report, LW8, Inspector of Police,

Pothinamallayyapalem police station, Visakhapatnam city registered a case vide Cr.No.416/2018 U/sec.448, 454, 380 IPC and endorsed the investigation to LW9,Sub Inspector of Police, Pothinamallayyapalem police station,

Visakhapatnam city. Thereafter, LW8, SI of police, took up investigation and investigated the matter and after completion of investigation, as his investigation reveals that the accused has committed this ofence and he fled charge sheet against the accused U/sec.448, 454, 380 IPC.

3. My Learned predecessor has taken this case on fle against the accused for the ofences U/Sec. 448, 454, 380 IPC and issued summons to the accused . After appearance of the accused, he was furnished with the copies U/sec.207 Cr.P.C. and the charges were framed U/sec.239 Cr.P.C., for the ofences U/sec.448, 454, 380 IPC and he was examined U/sec.240

Cr.P.C., for the aforesaid ofences and the allegations of the prosecution has been read over and explained to the accused in Telugu language and he denied the same and claimed to try the ofence.

4. During the course of trial, the prosecution has examined Pws 1 to 7 and got marked Exs.P1 to P10 on their behalf. After closer of prosecution evidence, the accused was examined u/sec.313 Cr.P.C and the incriminating evidence of the prosecution against the accused has been read over and explained to the accused in Telugu language and he denied the same and reported no defense evidence.

5.During course of section 313 Cr.P.C., examination, the accused has fled photostat copy of document showing that he is not the owner of the disputed property along with original documents which was verifed with the photostat copy and returned the original to the accused.

3 C.C.No.269/2018 XVI AM M/BML

6. Arguments heard.

7.Now the point for determination is:

Whether the accused is the owner of the disputed property and he has trespassed into the disputed property by broke opening the lock and committed theft of booty involved in this crime as contended by the prosecution and whether the prosecution has proved the guilt of the accused beyond reasonable doubt?

8.POINT:

The case of prosecution is that LW1 Smt.D.Rohini Rajya Laxmi/defacto complainant who was examined as PW1 lodged Ex.P1 report before LW8,

Inspector of Police on 25.08.2018 at 6.00 pm, stating that her mother LW5

Smt.J.Nagalakshmi, who was examined as PW3 has taken lease hold which belongs to the accused to run a curry point and hotel, which is situated opposite to Government hospital, Madhurawada of Visakhapatnam city on a monthly rent of Rs.7,000/- and gave an advance of Rs.2,00,000/- to the accused and the accused during the absence of PW3, when she handed over the lease hold to her daughter, who is PW1 herein and went to Shiridi on pilgrimage and PW1 along with her husband i.e., PW2 have kept some gold and other pooja articles for sale in the disputed property as it is Sravana masam and PW1 went to her maternal aunt’s house on 25.08.2018 and came to know when she is at her relatives house through the neighbours of the disputed property that the accused trespassed into house and broke open the lock of the lease hold taken by her mother i.e., PW3 and also taken away all the belonging in the house. Immediately Pws 1 and 2 rushed to the scene of ofence and taken stock of the situation and thereby lodged Ex.P1 report before the police to take necessary action and recover the belongings of the defacto complainant and her mother.

9.The above said contention of the prosecution has been categorically deposed by PW1, who is defacto complainant herein in her examination in 4 C.C.No.269/2018 XVI AM M/BML chief and through her Ex.P1 report has been marked. The learned counsel

for the accused has cross examined Pw1 at length and it is clear from the

evidence of PW1 that she was not present at the time of alleged incident and she has been to her relatives house and she has set law into motion by lodging Ex.P1 report after visiting the disputed the property and found that the house hold articles along with the utensils which are used for curry point and hotel pertaining to her mother and pooja articles which were kept by

PW1 for sale on account of Sravanamasam along with some gold ornaments pertaining to PW1 which are missing. It is the evidence of PW1 that she has not seen who has committed this ofence and she came to know through neighbours of the disputed property about the accused committed this ofence. Prior to lodging of Ex.P1 report, the mother of PW1 i.e., PW3 has lodged another report against the accused and there are disputes in between the landlord and tenant i.e., accused and PW3 regarding lease hold and a civil dispute is also pending in between them. It is the contention of PW1 that her mother is regular in payment of lease and the accused is demanding to vacate the disputed property and in the absence of PW3, who is tenant over the disputed property, the accused has committed this ofence in order to evict PW3 from the lease hold. The defense of the accused that he is not the owner of lease hold and he is no way concerned with this ofence and PW3 in collusion some of the relatives of the accused, who got vengeance against the accused has instigated PW3 to lodge this report in order to wreck vengeance against the accused, which defense has been denied by witnesses. It is submitted by PW1 that lost articles to some extent has been recovered by the police at Kancharapalem of Visakhapatnam city and they were handed over to PW1 under acknowledgment vide Ex.P10. It is also submitted, that the police have made an eforts to trace out the belongings of PW1 and PW3 and their investigation revealed that the 5 C.C.No.269/2018 XVI AM M/BML accused has kept those articles at Kancharapalem and they were seized under a cover of seizure report by making search vide Ex.P9 and also obtained two photographs at the time of handing over those articles to PW1 vide Ex.P8 and the defacto complainant has informed to her mother i.e., PW3 about the incident happened, who is at Shiridi by the date of this ofence and she inturn has explained PW1 regarding action to be taken. It is the contention of PW1 that some gold ornaments were lost in this ofence and they were not recovered by the police. The particulars of the gold ornaments has not been clearly mentioned by PW1, except making a vague allegations. As can be understood from the evidence of PW1 that her mother

PW3 is having disputes with her landlord and the landlord tried to evict PW3 from the lease hold. In any view of the matter, the alleged incident has not been witnessed by PW1 regarding trespass into the disputed property.

10.The other witness who was examined by the prosecution is husband of

PW1, who is PW2 herein. It is the contention of PW2 that he is resident of

Dakamarri village and he, now and then visits her mother in law house, where she run the curry point and hotel in the disputed property and while his mother-in-law i.e., PW3 is leaving to Shiridi on pilgrimage, she handed over the lease hold to PW1 and PW2 in order to look after the same and during that period, PW1 wanted to do some business due to Sravana masam by selling pooja articles in the lease hold and kept some pooja articles and gold property there and went to her maternal aunt’s house by locking the lease hold and all of a sudden, they came to know that the lease hold has been broke open and the articles in the lease hold has been taken away by accused and some other persons. Immediately they rushed to the scene and found the lease hold kept open by broke opening the lock and the belongings of Pws 1 to 3 were taken away and through neighbours they came to know that the accused has committed this ofence. The evidence 6 C.C.No.269/2018 XVI AM M/BML of PW2 is only a hearsay evidence and he support his wife and he deposed

before this court as per the version mentioned in Ex.P1 report.

11.The tenant of the lease hold which is in disputed property was examined as PW3 and she is none other than the mother of PW1 and mother-in-law of PW2. According to the evidence of PW3, she has taken lease hold in the year 2016 on a monthly rent of Rs.7,000/- and no lease deed has been executed at the time of entering into the lease hold and subsequently lease deed has been entered in between PW3 and the accused and initially PW3 has gave Rs.1,00,000/- as advance in order to run curry point and hotel in the lease hold and thereafter some renovation works have been done and again gave another Rs.1,00,000/- as advance, totaling

Rs.2,00,000/- to the accused. It is submitted by PW3 that she is prompt in payment of rents and she never committed any default in paying the rents and the accused on 14.02.2018 along with his henchmen tried to evict the

PW3 from the lease hold and she could resist those acts of the accused and sustained her possession over the lease hold and on 22.08.2018 PW3 has been to Shiridi on pilgrimage and during her absence, the landlord entered into the lease hold by broke open the lock and committed theft of articles and the same is informed by her daughter i.e., PW1 and thereafter, she came to know on 23.08.2018 the accused brought some persons and sat in the lease hold in order to evict PW3 from the lease hold and by informing to the police constable of Pothinamallayyapalem police station by PW3 while she is in journey to Shiridi and the police Pothinamallayyapalem has taken action and they have set things right and thereafter this crime has been committed by the accused. As can be seen from the evidence of PW3, she is also not an eye witness to the incident regarding trespass into the lease hold by the accused and she was given feed back by her daughter regarding this ofence and she after return from Shiridi, she was examined by the police. As can be 7 C.C.No.269/2018 XVI AM M/BML seen from the evidence of PW3, it is clear that she is at logger heads with the accused regarding the disputed property and in turn, the accused submits that he is no way concerned with the lease hold taken by PW3 and he never committed any ofence as alleged by the prosecution. When the lease hold taken by PW3 does not belongs to the accused according to his defence, it is incumbent on the prosecution to prove that the lease hold taken by PW3 belongs to the accused and he got title over the same. Added to the above, according to Pws 1 to 3, there is lease agreement in between

PW3 and the accused regarding disputed property and it is incumbent on the prosecution to produce the said lease agreement before this court. In order to show that the disputed lease hold belongs to the accused, there is no iota of documentary proof fled by the prosecution, except the bald allegations made by Pws 1 to 3 in order to connect the accused with this crime and there is no concrete evidence placed before this court by the police.

12.The alleged eye witness to the incident in this case has been examined as PW4 and she deposed before this court that she is not aware of

Pws 1 to 3 and the accused. PW4 further deposed that she does not know anything about this case. The learned prosecutor has requested this court to declare PW4 hostile and permit her to cross examine the witnesses and accordingly she was permitted by declaring the witness hostile and inspite of cross examination by the learned prosecutor, she could not elicit any favourable point in favour of prosecution, except marking the statement recorded by the police pertaining to PW4 vide Ex.P2. The confession and recovery mediators were examined as PW5 and PW6 regarding the accused and they also turned hostile and they were declared hostile at the request of learned prosecutor and permitted her to cross examine them and inspite of cross examination she could not elicit any favourable point in favour of prosecution, except marking their signatures on the confession and recovery 8 C.C.No.269/2018 XVI AM M/BML mediatornama vide Exs.P3 and P4 respectively. So far, PW5 is concerned, he is friend of PW2, who is husband of defacto complainant and he has not deposed as per the version of prosecution mentioned in confession and recovery mediatornama of the accused. The other mediator i.e., PW6 is the driver of the Tata Ace vehicle and he totally resiled from his earlier version.

The crucial aspect of confession and recovery of the accused could not be projected before this court by the prosecution in view of PW5 and PW6 turned hostile.

13.The Investigation Ofcer, who investigated the matter right from examining all the witnesses and conducting confession and recovery mediatornama was examined as PW7. It is clear from the evidence of PW7 that report vide Ex.P1 has been received from PW1 by LW8, Inspector of

Police and he registered this case and issued FIR vide Ex.P5. As PW7 worked under LW8, Inspector of police, the said FIR has been marked through him by identifying the signature of the issuing authority of FIR. Except registering this case, the remaining part of investigation was done by PW7 only. As can be seen from the evidence of PW7, he has recorded the statements of witnesses, visited the scene of ofence and drawn rough sketch of scene of ofence vide Ex.P6 and made search at Kancharapalem and seized the lost articles under a cover of seizure report vide Ex.P9 and those articles were handed over to PW1 under acknowledgment vide Ex.P10 by obtaining the photographs vide Ex.P8 regarding handing over those articles. As can be seen from the evidence of PW7, the confession recovery mediatornama was examined as PW5 and PW6, does not belongs to either pothinamallayyapalem police station jurisdiction or at Kancharapalem, where the alleged seizure has been done. The mediators were secured by PW7 from NAD Kotha Road, Visakhapatnam and there is no proper explanation regarding securing them from that place. Added to the above, the said 9 C.C.No.269/2018 XVI AM M/BML mediators has not deposed before this court, the version of prosecution. So far, the ofence of theft and house breaking of the disputed property by the accused and also trespassing into the disputed property could not be projected before this court. Even otherwise, the seizure of the articles pertaining to Pws 1 to 3 from the accused also not clearly projected before this court. The investigation done by PW7 is shabby and it is minimum necessary for investigating agency to show that disputed lease hold belongs to the accused by fling title deed of the said property and the said aspect is silent before this court. It is also clearly mentioned by PW3 that there is an agreement of lease in between her as tenant and landlord, who is accused herein regarding disputed property and the said agreement of lease has not seen the light of the day till date. In the above back drop, it is not believable that this ofence has been committed by the accused, as the version of the prosecution is not supported by concrete evidence.

14.Taking into consideration, the over all circumstances of the case, the prosecution has miserably failed to bring home the guilt of the accused regarding trespass, broke open the disputed lease hold and committed theft of articles belongs to Pws 1 to 3 and further, those belongings have been recovered from the accused under a cover of mediatornama vide Ex.P7. As can be understood from the evidence placed before this court by the prosecution, Pws 1 to 3 cooked up this case in order to pin down the accused to their terms as they have got some disputes with him and foisted this false case against the accused and therefore, the accused is entitled for acquittal for the charges levelled against him.

15.So far, the case property which was handed over by the police to PW1 under Ex.P10 acknowledgment can be retained by her and the said property was not produced before this court and it is incumbent on the investigating agency that any property which was recovered has to be produced before 10 C.C.No.269/2018 XVI AM M/BML this court and from this court, the defacto complainant or the owner of the said property has to follow the procedure and take the same for interim custody. The Investigation Ofcer i.e.,PW7 has submitted that as the recovered booty is perishable goods, they were handed over to PW1 under acknowledgment vide Ex.P10 is not believable, as the articles mentioned in

Ex.P10 acknowledgment are not perishable goods and they are iron almyrahs, coocking utensils etc. The above said aspects clearly shows that the investigation done by PW7 is perfunctory and this court is of considered view that the accused is no way concerned with this ofence.

16. In the light of above discussion, I answered this point against the prosecution.

17.In the result, accused is found not guilty and he is acquitted

U/sec.248(1) Cr.P.C. for the ofence U/sec.448, 454, 380 IPC. The bail bonds of the accused if any, shall stand cancelled after appeal time is over.

(Dictated to the Stenographer Gr-II, transcribed by her and after correction,

pronounced by me in the open Court on this the 23rd day of August, 2021).

Sd/-T.V.S.S.Prakash

XVI Additional Metropolitan Magistrate, Bheemunipatnam.

APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution: For Defense:

PW-1: Smt. Dasiri Rohini Rajya Laxmi -None- PW-2: Sri D.Satish PW-3: Smt.Jamani Nagalaxmi PW-4: Smt. P.Adi Lakshmi PW-5: Sri K.Lawrence (Confession and recovery mediator) PW-6: Sri P.Narasinga Rao(Confession and recovery mediator) PW-7: Sri. A.Hari Krishna(SI of Police) 11 C.C.No.269/2018 XVI AM M/BML

Exhibits marked

For Prosecution:

Ex.P1 Dt.25.08.2018: Report lodged before the police by PW1. Ex.P2 Dt. -Nil- : Section 161 Cr.P.C. statement of PW4 Ex.P3 Dt.26.08.2018: Signature of PW5 on the mediator report Ex.P4 Dt.26.08.2018: Signature of PW6 on the mediator report Ex.P5 Dt.25.08.2018: FIR in Cr.No.416/2018 U/secs.448, 454, 380 IPC. Ex.P6 Dt…-Nil- : Rough sketch of scene of ofence. Ex.P7 Dt.26.08.2018: Confession and recovery mediatornama. Ex.P8 Dt.-Nil- : Two photographs showing the seized property is handed over to PW1. Ex.P9 Dt.-Nil- : Search and seizure report. Ex.P10 Dt.26.08.2018: Acknowledgment given by PW1 regarding receiving the property seized in this case.

For Defense: -Nil-

Material Object:-Nil-

Sd/-T.V.S.S.Prakash

XVI Additional Metropolitan Magistrate, Bheemunipatnam 12 C.C.No.269/2018 XVI AM M/BML

CALENDER & JUDGMENT

IN THE COURT OF XVI ADDl METROPOLITAN MAGISTRATE

BHEEMUNIPATNAM, VISAKHAPATNAM DISTRICT.

CALANDER CASE NO.269 OF 2018

(Cr.No.416/2018 of P.M.Palem Police Station)

Date of ofence :24.08.2018 Date of Report or Complaint:25.08.2018 Date of Apprehension of the:--- accused or Date of apperance of the accused in the Court Date of Commencement of Trial:29.01.2020 Date of closure of Trial:18.08.2021 Date of Sentence on order:23.08.2021. Explanation for delay or remarks:The delay is due to non-production of accused and witnesses from time to time, as such there is a delay. Name of the Complainant:State Represented by the Sub InspectorofPolice, PothinamallayyapalemPolice Station, Visakhapatnam city. Name of the Accused:BagginaGovind,S/oLate Simhachalam, 69 years, K.Velama, R/o D.No.14-199/1, Tailor colony, near Bus Stop, Madhurawada, Kommadi, Visakhapatnam. Ofences:U/sec.448, 454, 380 IPC.

Finding :Accused is found not guilty for the ofence U/Sec.448, 454, 380 IPC.

Sentence:

In the result, accused is found not guilty and he is acquitted

U/sec.248(1) Cr.P.C. for the ofence U/sec.448, 454, 380 IPC. The bail bonds of the accused if any, shall stand cancelled after appeal time is over.

d/-Smt.Shammi Parvin S uBeguSt

Sd/-T.V.S.S.Prakash

XVI Additional Metropolitan Magistrate, Bheemunipatnam //True Copy//

XVI Addl .Metropolitan Magistrate Bheemunipatnam.

CC/300134/2018 Acquitted

KATTAMURI RAMAMURTHY SASTRI vs CHALLA UDAY KUMAR BABU

08 Apr 2021

1 C.C.No. 134/2018 XVI AMM/BML

IN THE COURT OF XVI ADDITIONAL METROPOLITAN MAGISTRATE

BHEEMUNIPATNAM

PRESENT: SRI T.V.S.S.PRAKASH XVI Addl.Metropolitan Magistrate Bheemunipatnam

Thursday, this the 8th day of April, 2021.

C.C. NO.134/2018

BETWEEN:

Sri Kattamuri Rama Murthy Sastry, S/o late Sanyasi Rao, Hindu, aged 60 years, Padmaja Pride, Flat No.101, Kommadi, Madhurawada, Visakhapatnam.

…Complainant.

AND

Sri Challa Udya Kumar Babu, S/o Veera Raghava Naidu, Hindu, Inspector, Endowment Board, Bhaskar Nagar, CTRI Junction, near Govt. Hospital, Lala Cheruvu, Rajahmundry, E.G.Dist. …Accused

This case having come before me for fnal hearing on 01.04.2021 in the presence of Sri. P.Venkateswara Rao, Advocate for Complainant and of Sri.D.N.Murthy, Sri B.Eswara Rao and Sri Polimera Naidu, Advocates for the accused, upon perusing the material papers on record and upon hearing the counsel on either side, this Court delivers the following:

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

This complaint is fled by the complainant against the accused

U/Sec. 142 of Negotiable Instruments Act for the ofence U/sec.138 of

Negotiable Instrument Act.

2.The averments of the complaint are as follows:

The contention of the complainant that he and the accused got acquaintance with each other and the accused has stated that he is the owner of the premises bearing Flat No.301, C-Heights Apartment,

Yendada village, Visakhapatnam and ofered the same to the complainant for rent and accordingly, the complainant and the accused entered into an agreement. As per the recitals of the agreement, the complainant has to pay an amount of Rs.2,00,000/- which is refundable 2 C.C.No. 134/2018 XVI AMM/BML after the period of agreement without any interest and the complainant shall continue as a tenant without any rent for the premises. The complainant had paid an amount of Rs.2,00,000/- to the accused by way of cheque bearing No.002390 dt.29.11.2016 and the same is also incorporated in the agreement. Having accepted the amount and terms of the agreement, the accused also executed demand promissory note for an amount of Rs.2,00,000/- on 29.11.2016 in favour of complainant agreeing to repay the amount to the complainant on demand. In contrary to the said promise, the accused has not inducted the complainant in the aforesaid premises and inducted third party and on demand, the accused agreed to return the amount to the complainant.

The complainant submits that inspite of several demands made by the complainant, the accused did not made payment and fnally, the accused issued cheque bearing No.004193 dt.24.08.2017 for

Rs.2,04,000/- drawn on Axis Bank, Ashok Nagar, Kakinada towards part consideration of the amount due under the promissory note and lease agreement. At the time of issuance of cheque, the accused requested the complainant to return the original agreement and promissory note and accordingly the complainant handed over the same to the accused.

The complainant contends that he presented the subject cheque for collection and the same was dishonoured and thereafter, the complainant has informed the same to the accused and the accused requested complainant to re-present the subject cheque in the month of

November, 2017 for collection and accordingly, the complainant presented the subject cheque in his bank account i.e., State Bank of

India, P.M.Palem Branch, Visakhapatnam on 19.11.20217 and the same has been returned with an endorsement “Funds insufcientn through cheque return memo dt.21.11.2017.

3 C.C.No. 134/2018 XVI AMM/BML

The complainant submits that he got issued statutory legal notice dt.20.12.2017 calling upon the accused to pay the cheque amount and the same has been received by the accused on 23.12.2017 and inspite of the same, the accused has not given any reply or paid amount and after following due technicalities laid down under the Act, the complainant is constrained to fle this complaint.

Therefore, it is prayed by the complainant to punish the accused according to law and impose fne amount to the accused and out of the fne amount, compensation may be awarded to the extend of the cheque amount.

3.My learned predecessor has taken this complaint on fle against the accused U/sec.138 of N.I. Act and issued summons to the accused and after appearance of the accused, he was furnished with the copies

U/sec.207 Cr.P.C., and he was examined U/sec.251 Cr.P.C for the ofence

U/sec.138 of N.I. Act and the allegations of the complainant has been read over and explained to the accused in Telugu language and he denied the same and claimed to try the ofence.

4.During course of trial, the complainant was examined as PW1 and through him Exs.P1 to P4 are marked. During the course of cross examination of PW1 Exs.D1 to D3 are marked by the accused. On behalf of complainant, PW2 examined and through him Ex.P5 and P6 are marked. After closer of complainant side evidence, the accused was examined U/sec.313 Cr.P.C., and the incriminating evidence of the complainant against the accused has been read over and explained to the accused in Telugu language and he denied the same and reported that he got defense evidence. Inspite of giving ample opportunity to the accused, he failed to adduce any defense evidence on his behalf and in the said circumstances, the defense evidence has been closed. After the matter is posted for judgment, the learned counsel for the accused has 4 C.C.No. 134/2018 XVI AMM/BML fled written arguments in the ofce of this court vide DDR No.419,

Dt.03.04.2021.

5.Arguments heard.

6.Now the point for determination is:

Whether there is any legally enforceable debt due by the accused to the complainant and in order to discharge the said debt, the subject cheque has been issued by the accused made believing the comlainant that there are sufcient funds in the account of the accused and on presentation, the same has been dishonoured due to insufcient funds in the account of accused and thereby, he committed the ofence under

Negotiable Instrument Act and whether the complainant has proved the guilt of the accused beyond reasonable doubt?

8. POINT:

The case of complainant, who is examined as PW1 that he got acquaintance with the accused and during their acquaintance, the accused ofered his house which is situated at Viskhapatnam to lease out the same and the complainant is interested to take the said house on lease and there are some terms and conditions entered in between the parties to this complaint i.e, the complainant has to pay an amount of Rs.2,00,000/- to the accused and inturn, the accused will let out his lease hold to the complainant without any rent for a period of 3 years and the complainant shall not claim any interest on the said amount of

Rs.2,00,000/- from the accused and the said amount is refundable as and when the complainant vacate the premises of the accused. With the aforesaid terms and conditions an agreement has also been entered in between the parties to this complainant and a promissory note has also been executed by the accused in favour of complainant for Rs.2,00,000/- and thereafter, the accused has not let out the premises to the complainant and it has been let out to third parties. In the said circumstances, the complainant has demanded to repay the amount 5 C.C.No. 134/2018 XVI AMM/BML which was paid by him through cheque to the accused and the accused postponed the payment on one pretext or the other and fnally issued the subject cheque vide Ex.P1 for an amount of Rs.2,04,000/- drawn on

Axis Bank Ltd., Kakinada branch made believing the complainant that there are sufcient funds in the account of accused and the complainant presented the subject cheque in his bank account I..e, State Bank of

India, PM Palem Branch, Visakhapatnam for collection and the same has been returned with an endorsement funds insufcient in the account of accused to honour the subject cheque and informed to the complainant through cheque return memo vide Ex.P2 and thereafter, the complainant got issued statutory legal notice vide Ex.P3 calling upon the accused to pay the cheque amount within 15 days from the date of receipt of the said notice and the same has been received by the accused on 23.12.2017, which is evident from Ex.P4 postal acknowledgment. Inspite of receipt of said notice, the accused has not given any reply or paid the cheque amount and in the said circumstances, the complainant is constrained to fle this complaint after following the due technicalities laid down under the Act.

9.The above said contention of the complainant has been categorically deposed by him as PW1 in his examination in chief and through him Exs.P1 to P4 are marked. During course of cross examination of PW1, Exs.D1 to D3 are marked by the accused. It is the defense of the accused that there is no legally enforceable debt due to the complainant from the accused and he is repaid the amount of

Rs.2,00,000/-, which was taken from the complainant at the time of entering into lease agreement and he is also obtained an acknowledgment to that efect vide Ex.D3 and the subject cheque vide

Ex.P1 has not been returned by the complainant to the accused at the time of repayment of amount under Ex.D3, as it is misplaced according 6 C.C.No. 134/2018 XVI AMM/BML to version of PW1, as and when it is traced, the subject cheque will be returned to the accused and thereafter the complainant has pressed into service, the subject cheque as Ex.P1 and fled this complaint in order to extract money from the accused, which defense has been denied by PW1. As can be seen from the cross examination of PW1, it is clear that the accused has ofered a tenanted premises to PW1 situated at Visakhapatnam, which is fat in an apartment and thereafter the accused received Rs.2,00,000/- as token of rent free accommodation for the said premises and PW1 cannot claim any interest over the same and accordingly, an agreement has been entered in between the parties to the complaint which is marked as Ex.D2. The promissory note has also been executed by the accused at the time of execution of lease agreement vide Ex.D2, which is marked as Ex.D1. Initially there is an agreement between both the parties regarding to lease of the fat and the accused has not let out the said premises to PW1 according to the lease agreement vide Ex.D2 and thereafter, the accsued intended to return the amount, which was taken from PW1 i.e., Rs.2,00,000/- . It is clear from the evidence of PW1 that initially cheque for Rs.2,00,000/- has been issued by the accused and the said cheque has been dishonoured and the same is informed to accused by PW1 and accsued told to PW1 that he will take back the said cheque and issue another cheque, which is Ex.P1 and again presented the subject cheque vide

Ex.P1 for Rs.2,04,000/- for return of amount received by the accused and the same is also dishonoured. If really, amount is due by the accused to

Pw1, discharge letter vide Ex.D3 will not come into existence. As can be seen from Ex.D3 letter written by PW1, which was marked during course of cross examination of PW1 on his admission, it is clear that an amount of Rs.2,00,000/- has been returned to PW1 according to the recitals of the said letter. If that be so by the date of issuance of Ex.P1 7 C.C.No. 134/2018 XVI AMM/BML cheque according to PW1 there is no legally enforceable debt due by the accused to the complainant. When there is no legally enforceable debt, question of issuing Ex.P1 cheque and presentation of the same in the account of PW1 for collection and the same has been dishonoured due to insufciency of funds does not come under purview of section 138 of Negotiable Instrument Act. No doubt there is a presumption that once cheque has been issued by the accused that it has been issued for discharge of debt and the said presumption is rebuttable presumption and in the present case on hand, the accused by marking Exs.D1 to D3, it has been rebutted and the case of the complainant has been shattered. As can be understood from the evidence of PW1, it is clear that two cheques has been issued by the accused and the complainant has kept one of the cheques with him and returned one cheque at the time of receiving amount of Rs.2,00,000/- from the accused under Ex.D3 letter and thereafter with an ulterior motive, the complainant has fled this complaint in order to extract money from the accused, as the accused has resiled from his promise for letting out the premises to PW1.

No doubt, the due technicalities laid down under the Act has been followed by the complainant and at the same time the essential core point for the ofence u/sec.138 of N.I. Act i.e., legally enforceable debt is not in existence in between the accused and the complainant by the date of issuance of Ex.P1 cheque. The document vide Exs.D1 to D3 proves the defense of the accused and the complainant with an ulterior motive fled this complaint to trouble the accused.

10.On behalf of complainant, the ofcial of Axis Bank Limited,

Kakinada Branch, where the subject cheque vide Ex.P1 has been drawn by the accused has been examined as PW2 and through him

Exs.P5 statement of account of the accused maintained by the said

Bank and Ex.P6 clearing cheque return memo is marked though him. The 8 C.C.No. 134/2018 XVI AMM/BML evidence of PW2 is to the efect that the subject cheque vide Ex.P1 has been dishonoured due to insufciency of funds in the account of accused and the said aspect is very much crystal clear from the evidence of PW1 and the evidence of PW2 is formally given in order to further prove the said aspect. As already stated above when the accused has discharged the amount of Rs.2,00,000/- which was taken from the complainant towards advance and give rent free accommodation to the complainant under Ex.D3 and again claiming the said amount by the complainant is not genuine and the said aspect cannot be taken into consideration.

11.Taking into consideration, the over all circumstances of the case, the complainant has miserably failed to project and prove his case and further he has mischievously fled this complaint against the accused on the subject cheque, which was lying with him pertaining to the accused, even though an amount of Rs.2,00,000/- was returned by the accused to the complainant and it is also clear from the defense of the accused that the complainant has told the accused at the time of returning the amount of Rs.2,00,000/- vide Ex.D3 letter, the subject cheque has been misplaced. The accused inspite of receiving the statutory legal notice vide Ex.P3 has not issued any reply and it does not mean that he has accepted the contents of the same and the accused is under confdence as he has obtained Ex.D3 letter, he has paid an amount of Rs.2,00,000/- and in the said circumstances, as he has kept quite and after fling of this complaint during course of trial, the accused has opened all his trump cards and shattered the case of the complainant. In the aforesaid circumstances, there is no case made out against the accused and this court is of considered view that the complainant has fled this complaint only to pin down the accused to his terms and harass the accused by extracting money under the guise of this complaint, which cannot be entertained under any stretch of imagination and the accused 9 C.C.No. 134/2018 XVI AMM/BML is entitled for acquittal. Added to the above, it is clear from cross examination of PW1 at the time returning the amount of Rs.2,00,000/- only under Ex.D3, the accused has taken the promissory note executed by him in favour of PW1 vide Ex.D1 and lease agreement vide Ex.D2.

The accused has demanded for subject cheque vide Ex.P1 and PW1 stated that the same is misplaced and the same is pressed into service and fled this complaint which is not maintainable.

12.In the light of above discussion, I answered this point against the complainant.

13.In the result, accused fount not guilty and he is acquitted

U/sec.255(1) Cr.P.C for the ofence U/sec.138 of N.I. Act. The bail bonds of the accused if any, shall stand cancelled after appeal time is over.

(Dictated to the Stenographer-II, transcribed by her and after correction and pronounced by me in the open court, this the 8th day of April, 2021).

Sd/-T.V.S.S.Prakash

XVI Addl. Metropolitan Magistrate, Bheemunipatnam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Complainant: For Accused

PW1: Sri Kattamuri Rama Murthy Sastry -Nil- PW2: Sri A.Siva Pratap

DOCUMENTS MARKED.

For Complainant:

Ex.P1 Dt.24.08.2017: Cheque bearing No.004193 drawn on Axis Bank Limited, Kakinada in favour of the complainant issued by accused.

Ex.P2 Dt.21.11.2017: Cheque return memo issued by State Bank of India, PM Palem Branch for the cheque bearing No.004193 for Rs.2,04,000/- drawn on Axis Bank Limited.

Ex.P3 Dt.20.12.2017: Ofce copy of the legal notice issued by the complainant to the accused along with postal receipt .

10 C.C.No. 134/2018 XVI AMM/BML

Ex.P4 Dt.23.12.2017: Postal acknowledgment of the accused addressed to his residence evidencing the receipt of Ex.P3 legal notice.

Ex.P5 Dt.27.01.2020 : Account statement of the accused bearing A/c No.913010014130481 for the period from 01.08.2017 to 31.08.2017.

Ex.P6 Dt.24.08201 to 31.08.2017 : Clearing cheque return memo

For Accused:

Ex.D1 Dt.29.11.2016: Unstamped promissory note executed by accused in favour of complainant for Rs.2,00,000/-.

Ex.D2 Dt.28.11.2016: Unregistered lease deed entered between accused as 1stparty and complainant as 2nd party.

Ex.D3 Dt.03.07.2017: Acknowledgment for receipt of Rs.2,00,000/- from the accused issued in handwriting of PW1 along with his signature.

Sd/-T.V.S.S.Prakash

XVI Addl. Metropolitan Magistrate, Bheemunipatnam.

//True Copy//

XVI Addl. Metropolitan Magistrate, Bheemunipatnam.

11 C.C.No. 134/2018 XVI AMM/BML

IN THE COURT OF XVI ADDITIONAL METROPOLITAN MAGISTRATE

BHEEMUNIPATNAM

Calender Case.No.134/2018

Date of ofence 21.11.2017 Date of report or complaint 31.01.2018

Date of apprehension of 06.09.2019 the accused or Date of appearance of the accused

in the Court

Date of commencement of 09.10.2019 trial Date of close of trial 04.02.2020

Date of sentence on order 08.04.2021

Explanation of delay or Due to Non-production of accused and witness remarksfrom time to time, as such there is a delay. Name of the ComplainantSri Kattamuri Rama Murthy Sastry, S/o late Sanyasi Rao, Hindu, aged 60 years, Padmaja Pride, Flat No.101, Kommadi, Madhurawada, Visakhapatnam. Name of the accused Sri Challa Udya Kumar Babu, S/o Veera Raghava Naidu, Hindu, Inspector, Endowment Board, Bhaskar Nagar, CTRI Junction, near Govt. Hospital, Lala Cheruvu, Rajahmundry, E.G.Dist. OfencesUnder section 138 of Negotiable Instrument Act Finding Accused is found not guilty for the ofence U/sec 138 NI Act Sentence:

In the result, accused fount not guilty and he is acquitted

U/sec.255(1) Cr.P.C for the ofence U/sec.138 of N.I. Act. The bail bonds of the accused if any, shall stand cancelled after appeal time is over.

Sd/-T.V.S.S.Prakash

XVI Addl. Metropolitan Magistrate, Bheemunipatnam.

//True Copy//

XVI Addl. Metropolitan Magistrate, Bheemunipatnam.

CC/300129/2018 Acquitted

P.M.Palem P.S. vs NUVVULA AJAY

23 Mar 2021

1 C.C.No.129/2018 XVI AM M/BML

IN THE COURT OF XVI ADDL. METROPOLITAN MAGISTRATE

BHEEMUNIPATNAM

Present: T.V.S.S.PRAKASH

XVI Addl. Metropolitan Magistrate,

Bheemunipatnam.

CALANDER CASE NO.129 OF 2018

(Cr.No.85/2018 of Pothinamallayya Palem Police Station)

Tuesday this the 23 rd day of March, 2021.

BETWEEN:

State Represented by the Sub Inspector of Police, Pothinamallayyapalem Police Station, Visakhapatnam city.

...Complainant.

AND:

Nuvvula Ajay, S/o N.Srinivasa Rao, age 30 years, Chowdary by caste, R/o Flat No.D2, Kakatiya Dynasty, Saipriya Gardens, Madhurawada, Visakhapatnam City. Driver of Car bearing registration No.TS 07 FU 3829.

...Accused.

This case having come before me for fnal hearing on 18.03.2021 in the presence of Learned A.P.P. for the State and of Sri.K.S.M.Sudhakar, Learned Counsel for the accused and upon perusing the material papers on record and upon hearing the counsel on either side, this Court delivers the following:

J U D G M E N T

1. The Sub Inspector of Police, Pothinamallayyapalem Police Station of

Visakhapatnam city fled charge sheet against the accused U/sec.304-A, 338

IPC .

2.The case of prosecution is as follows :

The contention of the prosecution is that LW12 Miss. L.Swathi/defacto complainant/injured gave statement to LW11, Inspector of Police stating that on 19.02.2018 the defacto complainant along with deceased Miss L.Rama

Devi, went to their elder sister Smt. Rajyalakshmi house at Visalakshinagar.

On 20.02.2018 during evening hours when the defacto complainant and deceased Miss. L. Rama Devi went to Madhurawada to their aunt’s house.

2 C.C.No.129/2018 XVI AM M/BML Thereafter, on 21.02.2018 at 9.15 am, both the defacto complainant and deceased Miss. L.Rama Devi, while crossing NH-16 road at Madhurawada, opposite to Tiles mart by walk, a car bearing registration No.TS 07 FU 3829 coming from Car shed junction towards Kommadi and the driver of the said car drove the vehicle in a rash and negligent manner and dashed to the defacto complainant and deceased Miss L.Ramadevi. As a result, both the sisters fell down on the divider and the defacto complainant sustained injuries on her right cheek, eye and right leg is fractured. Deceased Miss

L.Ramadevi sustained grievous head injury and fracture injury to her right leg and fell unconscious. The driver of the crime vehicle shifted the injured to Gayatri hospital for treatment.

Basing on the aforesaid statement of defacto complainant/injured, Sri

K.Lakshmana Murthy, Inspector of Police registered a case vide

Cr.No.85/2018 U/sec.338 IPC and endorsed the investigation to Sri

Ch.Rajesh, SI of Police. Thereafter, SI of police took up investigation in this case and investigated the matter and after completion of investigation he fled charge sheet against the accused, as his investigation is reveals that the accused has committed this ofence U/sec.338 IPC.

3. My Learned predecessor has taken cognizance of this case U/sec.338

IPC and issued summons to the accused and after appearance of the accused, he was furnished with the copies u/sec.207 Cr.P.C., and he was examined U/sec.251 Cr.P.C., on 08.06.20218 and the allegations of the prosecution has been read over and explained to the accused in Telugu language and he denied the same and claimed to try the ofence.

4.While the matter is pending before this court, the prosecution has fled

additional charge sheet against the accused as the injured Miss L.Ramadevi,

who fell unconscious after the accident has not regained consciousness even after one year and while undergoing treatment, she succumbed to injuries 3 C.C.No.129/2018 XVI AM M/BML and therefore, the alteration memo has been fled, altering the section of law from 338 IPC to 304-A IPC on the report given by the father of deceased/defacto complainant and the successor of Sri K.Lakshmana Murthy,

Inspector of Police, PM Palem Police Station(LW10), who is Sri

P.Suryanarayana, Inspector of police, altered the section after death of one of the injured and entrusted the investigation to Sri A.Hari Krishna, SI of

Police(LW11) and accordingly, the said Sri A.Hari Krishna, SI of Police(LW11) investigated the matter and fled additional charge sheet against the accused for the ofence U/sec.304-A IPC.

5.My learned predecessor has taken the additional charge sheet on fle against the accused U/sec.304-A IPC apart from section 338 IPC and the accused is once again examined U/sec.251 Cr.P.C. and by mistake he was once again examined U/sec.338 IPC, instead of sec.304-A IPC and it is purely a typographical mistake crept by oversight and the accused denied the allegations of the prosecution when he was read over and explained the prosecution case and claimed to try the ofence.

6.During the course of trial, the prosecution has examined Pws 1 to 6 and got marked Ex.P1 to P7 on its behalf. After closer of the prosecution evidence, the accused was examined u/sec.313 Cr.P.C and the incriminating evidence of the prosecution against the accused has been read over and explained to him in Telugu language and he denied the same and reported no defense evidence.

7. Arguments heard.

8.Now the point for determination is:

Whether the accused is the driver of the crime vehicle at the time of accident and due to his rash and negligent driving this accident has been caused as alleged by the prosecution and whether the prosecution has to proved the guilt of the accused beyond reasonable doubt?

4 C.C.No.129/2018 XVI AM M/BML 9.POINT:

The case of the prosecution is that as per the additional charge sheet

LW12 Miss L. Swathi/defacto complainant/injured who was examined as PW2 along with her sister I.e, deceased Miss L. Ramadevi on 19.02.2018 during morning hours went to their sister Smt. Rajyalaskhmi house at

Visalakshinagar. On 20.02.2018 evening hours both the sisters went to

Madhurawada to their aunt’s house. Thereafter, on 21.02.2018 during morning hours at about 9.15 am, both the sisters while crossing NH-16 road, at Madhurawada, opposite to Tiles mart by walk, a car bearing registration

No.TS 07 FU 3829 coming from car shed junction towards Kommadi dashed both the sisters in a rash and negligent manner, as a result, they fell on divider of the road and PW2 sustained injuries on her right cheek, eye and right leg is fractured. The deceased sustained grievous injuries and fracture to her right leg and fell unconscious. The injured were shifted to Gayatri hospital for treatment by the driver of crime vehicle and the statement vide

Ex.P2 of LW12 Miss. L. Swathi, who was examined as PW2 has been recorded by the inspector of police, PM Palem(Sri K.Lakshmana Murthy) and basing on the said statement a case is registered vide Cr.No.85/2018 U/sec.338 IPC and endorsed the investigation to his subordinate, SI of Police I..e, Sri

Ch.Rajesh. In turn, the SI of police aforestated has taken up the investigation and fled charge sheet against the accused, as his investigation reveals that the accused has committed this ofence U/sec.338 IPC. The deceased I..e, Miss. L. Ramadevi, is not regained consciousness upto one year and she succumbed to injuries and thereafter, the father of deceased, who was examined as PW1 lodged a report before the police vide Ex.P1, after death of injured daughter and basing on the same altered the FIR has been issued U/sec.304-A IPC by Sri P.Suryanarayana, Inspector of Police and entrusted the investigation to PW6, SI of Police and he took up the 5 C.C.No.129/2018 XVI AM M/BML investigation in this case and investigated the matter and he fled additional charge sheet against the accused U/sec.304-A IPC, as his investigation reveals that the accused has committed this ofence.

10.The accused is charged for the ofence U/sec.338, 304-A IPC. The above said contention of the prosecution has been categorically deposed by

PW1, who is father of deceased and the injured and though him Ex.P1 is marked. It is clear from the evidence of PW1, he set law into motion by lodging Ex.P1 after the death of his daughter Miss. L. Ramadevi and he has not witnessed the accident and he came to know about the accident through somebody and he rushed to the hospital where the injured has been admitted. The crucial witness in this case is PW2, who is one of the injured, who accompanied the deceased and while they were at the bus stop at

Madhurawada waiting for bus, the crime car is came in rash and negligent manner and dashed both PW2 and the deceased and they sustained grievous injuries and PW2 inturn identifed the accused as the driver of crime vehicle and due to his rash and negligent driving, this accident has been caused. Through PW2 her statement given to the police is marked vide

Ex.P2 and basing on the same this crime has been registered. During course of cross examination of PW2, it has been elicited by the learned counsel for the accused that immediately after the accident, PW2 along with her sister deceased herein fell unconscious and they were shifted to Gayatri hospital and from there to Care hospital. If really, PW2 fell consciousness after the accident, question of identifying the accused is the driver of crime vehicle is not possible by her and it is the police and the relatives might have shown the accused arrayed in this case as the driver of crime vehicle and accordingly, she deposed before this court. It is highly difcult for a person who is standing besides road and waiting for a bus, identifying each and every vehicle driver plying on the road and added to the above, PW2 fell 6 C.C.No.129/2018 XVI AM M/BML unconscious immediately after the accident and question of identifying the accused is the driver of crime vehicle is highly impossible. The evidence of

PW2 appears before this court as artifcial and basing on her evidence, it cannot be relied that the accused is the driver of the crime vehicle and due to his rash or negligent driving, this accident caused. Added to the above as per sec.161 Cr.P.C. statement of PW2, it is clear that while crossing the road by her and deceased this accident has been occurred and they fell on the divider and sustained injuries.

11.The prosecution examined the brother of injured as PW3 and he is also one of the circumstantial witness to this case and he is not an eye witness to the accident. On 21.02.20218 at about 9.15 am, PW1 telephoned to PW3 and informed about the accident and immediately he rushed to the hospital where the injured were admitted. It is clear that the deceased in this case was treated in Gayatri hospital and from there she was shifted to Care hospital and there operation has been done to the fracture injury and after one month she was discharged from the hospital, even though she has not regained consciousness and the doctors of Care hospital used to treat the deceased periodically till her last breath and ultimately on 25.03.2019 Miss.

L. Ramadevi died due to injuries. The evidence of PW3 does not fx the liability on the accused.

12.The prosecution has examined the inquest mediator as PW4, who was present at the time of inquest of the deceased and through him Ex.P3 is marked. The Medical Ofcer, who conducted autopsy over the dead body of

Miss Ramadevi was examined as PW5 and he gave Postmortem examination report vide Ex.P4 opining that the patient died due to complications of head injury. The aforesaid evidence of PW4 and PW5 is with regard to death of deceased and it is clear that PW2 sustained injuries in this accident and the deceased died due to injuries in this accident and there is no dispute 7 C.C.No.129/2018 XVI AM M/BML regarding the said aspect and only aspect to be proved by the prosecution is the accused is the driver of crime vehicle at the time of this accident and due to his rash or negligent driving, this accident has been caused. There are no independent eye witnesses examined by the prosecution and the place of ofence is a busy locality and the accident has taken place during broad day light and number of eye witnesses will be available at the scene and the police have not ventured to examine those witnesses.

13.The Investigation Ofcer, who investigated the major portion of investigation has been examined as PW6 and he deposed regarding investigation done by other investigation ofcers in this case and also his part of investigation. According to PW6, the statement of PW2 was recorded by the Inspector of Police on 21.02.2018 in the hospital and basing on the same, he registered the case vide Cr.No.85/2018 U/sec.338 IPC and issued

Ex.P5 FIR. Thereafter, PW1 lodged Ex.P1 report and basing on the said report, the Inspector of police altered the section of law from 338 IPC to 304-

A IPC and issued another FIR vide Ex.P6 due to the death one of the injured person. The rough sketch of the scene is also marked as Ex.P7. As can be seen from the investigation done by diferent investigation ofcers, it is clear that they have not taken much pain to probe the matter in correct perspective and made table investigation and fled statistical charge sheet against the accused. No where, in the entire evidence placed before this court, it has been proved that the accused is the driver of the crime vehicle and due to his rash or negligent driving, this accident has been caused.

14.Taking into consideration, the over all circumstances of the case, the prosecution has miserably failed to project and prove that the accused is driver of crime vehicle and due to his rash or negligent driving, this accident has been caused and therefore, this court is of considered opinion that the 8 C.C.No.129/2018 XVI AM M/BML accused has not committed this ofence and he is entitled for acquittal for the ofences levelled against him.

15.In the light of above discussion, I answered this point against the prosecution.

16.In the result, accused found not guilty and he is acquitted U/sec.255(1)

Cr.P.C. for the ofences U/sec.338 and 304-A IPC. The bail bonds of the accused if any, shall stand cancelled after appeal time is over.

(Dictated to the Stenographer Gr-II, transcribed by her and after correction,

pronounced by me in the open Court on this the 23rd day of March, 2021).

Sd/- T.V.S.S.Prakash

XVI Additional Metropolitan Magistrate, Bheemunipatnam.

APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution: For Defense: PW-1: Sri L.Adinarayana -None- PW-2: Miss L.Swathi PW-3: Sri L.Ramana PW-4: Sri M.Sivarama Krishna (Inquest mediator) PW-5: Sri Dr.P.Venkata Ramana Rao PW-6: Sri K.Hari Krishna(SI of police)

Exhibits marked

For Prosecution: Ex.P1 Dt.26.03.2019: Report lodged before the police by PW1 Ex.P2 Dt.21.02.2018: Statement of PW2 recorded in Gayatri Hospital, Marikavalasa, Visakhapatnam. Ex.P3 Dt.26.03.2019: Inquest report Ex.P4 Dt.26.03.2019: PM report of deceased issued by PW5 Ex.P5 Dt.21.02.2018: FIR in Cr.No.85/2018 U/sec.338 IPC issued by Sri K.Lakshmana Murthy, Inspector of Police. Ex.P6 Dt.26.03.2019: FIR in Cr.No.85/2018 U/sec.338 IPC altered to Sec.304-A IPC Ex.P7 Dt………………: Rough sketch of the scene.

For Defense: Nil-

Material Object:-Nil-

Sd/- T.V.S.S.Prakash

XVI ADDITIONAL MET ROPOLITAN MAGISTRATE,

BHEEMUNIPATNAM

//True Copy//

XVI Addl. Metropolitan Magistrate, Bheemunipatnam.

9 C.C.No.129/2018 XVI AM M/BML

CALENDER & JUDGMENT

IN THE COURT OF XVI ADDl METROPOLITAN MAGISTRATE

BHEEMUNIPATNAM, VISAKHAPATNAM DISTRICT.

CALANDER CASE NO.129 OF 2018

(Cr.No.85/2018 of P.M.Palem Police Station)

Date of ofence :21.02.2018 Date of Report or Complaint:21.02.2018 and 26.03.2019 Date of Apprehension of the:-- accused or Date of apperance of the accused in the Court Date of Commencement of Trial:18.12.2019 Date of closure of Trial:26.02.2021 Date of Sentence on order:23.03.2021. Explanation for delay or remarks:The delay is due to non-production of accused and witnesses from time to time, as such there is a delay. Name of the Complainant:State Represented by the Sub InspectorofPolice, PothinamallayyapalemPolice Station, Visakhapatnam city. Name of the Accused:Nuvvula Ajay, S/o N.Srinivasa Rao, age 30 years, Chowdary by caste, R/o Flat No.D2, Kakatiya Dynasty, Saipriya Gardens, Madhurawada, Visakhapatnam City. Driver of Car bearing registration No.TS 07 FU 3829 Ofences:U/sec.304-A IPC.

Finding :Accused found not guilty for the ofence U/Sec.338 and 304-A IPC.

Sentence:

In the result, accused found not guilty and he is acquitted U/sec.255(1)

Cr.P.C. for the ofences U/sec.338 and 304-A IPC. The bail bonds of the accused if any, shall stand cancelled after appeal time is over.

d/-Smt.Shammi Parvin S u Sd/-T.V.S.S.Prakash Begu XVI Addl .Metropolitan Magistrate Bheemunipatnam //True Copy//

XVI Addl. Metropolitan Magistrate, Bheemunipatnam.

10 C.C.No.129/2018 XVI AM M/BML //True Copy//

XVI Addl .Metropolitan Magistrate

Bheemunipatnam

CC/300027/2018 Acquitted

P.M.Palem P.S. vs VMESH CHAUHAN

17 Aug 2021

1 C.C.No.27/2018 XVI AM M/BML

IN THE COURT OF XVI ADDL. METROPOLITAN MAGISTRATE

BHEEMUNIPATNAM

Present: T.V.S.S.PRAKASH

XVI Addl. Metropolitan Magistrate,

Bheemunipatnam.

CALANDER CASE NO.27 OF 2018

(Cr.No.501/2015 of Pothinamallayya Palem Police Station)

Tuesday this the 17 th day of August, 2021.

BETWEEN:

State Represented by the Sub Inspector of Police, Pothinamallayyapalem Police Station, Visakhapatnam city.

...Complainant.

AND:

Vimesh Chauhan, S/o Laljit Chauhan, 34 years, R/o Akra Fatak(Pst), Alipur(MD), 24 Paragana District, Ravindrangar, Kolkata. Driver of Lorry bearing No.KA 25 B 8220.

...Accused.

This case having come before me for fnal hearing on 16.08.2021 in the presence of Learned A.P.P. for the State and of Smt.D.Sridevi, Learned

Counsel for the accused upon perusing the material papers on record and upon hearing the counsel on either side, this Court delivers the following:

J U D G M E N T

1. The Sub Inspector of Police, Pothinamallayyapalem Police Station,

Visakhapatnam city fled charge sheet against the accused U/sec.304-A and 337 IPC.

2.The case of prosecution is as follows :

The contention of the prosecution that on 20.06.2015 at 1.00 pm, LW1 Sri

Vemulavalasa Kanaka Raju/defacto complainant came to police station and lodged a report stating that he and the deceased Mandapalli Naga Raju left

Rajam village to go to Visakhapatnam on his motor cycle bearing registration 2 C.C.No.27/2018 XVI AM M/BML

No.AP 30 AA 4012 to purchase the aluminum articles. After purchase of aluminum articles, they are returning to Rajam village on the same bike and the defacto complainant/injured is riding the bike and the deceased Mandapalli

Naga Raju sat as pillion rider on the said bike. By the time, they reached to

Marikavalasa junction, Visakhapatnam at about 8.30 pm, a Lorry bearing registration No.KA 25 B 8220 came in a rash and negligent manner behind the said motor cycle and dashed the defacto complainant/injured on his right side and thereby, the defacto complainant/injured and the pillion rider i.e.,

Mandapalli Naga Raju fell on the road and thereby Mandapalli Naga Raju sustained grievous injuries on his head and died on the spot. The defacto complainant/injured sustained minor injuries on his right hand and right leg and this accident has been caused due to rash and negligent driving of the crime lorry driver, who is the accused herein and therefore, prayed by the defacto complainant/injured to take necessary action against him.

Basing on the aforesaid report, LW11, SI of Police registered a case vide

Cr.No.501/2015 U/sec.304-A and 337 IPC and investigated the matter. After completion of investigation, LW11, SI of Police fled charge sheet against the accused for the ofence U/sec.304-A and 337 IPC, as his investigation reveals that the accused has committed this ofence.

3. My Learned predecessor has taken cognizance of this case against the accused U/Sec. 304-A and 337 IPC and issued summons to the accused. After receipt of summons, the accused made his appearance and he was furnished with the copies U/sec.207 Cr.P.C. and thereafter, he was examined U/sec.251

Cr.P.C. for the ofences U/sec.304-A and 337 IPC and the allegations of the prosecution has been read over and explained to the accused in Hindi language and he denied the same and claimed to try the ofence.

4. During the course of trial, the prosecution has examined Pws 1 to 4 and got marked Ex.P1 to P4 on its behalf and after closure of prosecution evidence, 3 C.C.No.27/2018 XVI AM M/BML the accused was examined u/sec.313 Cr.P.C and the incriminating evidence of the prosecution against the accused has been read over and explained to accused in Hindi language and he denied the same and reported no defense evidence.

5. Arguments heard.

6.Now the point for determination is:

Whether the accident has been caused due to rash or negligent driving of the crime lorry driver, who is accused herein as contended by the prosecution and whether the prosecution has proved the guilt of the accused beyond all reasonable doubt?

7.POINT:

The case of the prosecution is that LW1 Sri Vemulavalasa Kanaka

Raju/defacto complainant/injured, who was examined as PW1 lodged Ex.P1 report before the police on 20.06.2015 at 10.00 pm, stating that PW1 is doing as carpenter and aluminum works at Rajam of Srikakulam District. The deceased herein by name Mandapalli Naga Raju is assistant for PW1 and on 20.06.2015 at about 3.00 pm, PW1 and deceased Mandapalli Naga Raju started from Rajam on the motor bike belongs to PW1 bearing registration No.AP 30 AA 4012 to go to Visakhapatnam to purchase of aluminum material and after reaching Visakhapatnam they have made purchases of aluminum material and while returning to Rajam, when they reached to Marikavalasa junction at about 8.30 pm, on 20.06.2021, a lorry came behind at high speed, in a rash and negligent manner, without blowing horn bearing registration No.KA 25 B 8220 and dashed PW1 on his right leg and right hand by the crime lorry. As PW1 is wearing the helmet and the pillion rider who is deceased herein is not wearing any helmet and due to the dash by the crime lorry, they fell on the road and the pillion rider who is deceased herein sustained grievous injuries on his head and died on the spot. So far, PW1 is concerned as he sustained minor injuries and 4 C.C.No.27/2018 XVI AM M/BML immediately thereafter he lodged a report against the driver of the crime vehicle before the police to take necessary action.

8.The above said contentions of the prosecution has been categorically deposed by PW1 in his examination in chief and he was cross examined by the learned counsel for the defense. It is clear from the cross examination of PW1 that PW1 and the deceased are carrying aluminum material, which was purchased by them at Visakhapatnam and they are carrying on the two wheeler. The crime lorry came behind the motor cycle and the allegations of the prosecution is that it has dashed from behind to the motor cyclist. It is not possible for a motor cyclist, who is driving the same to see the driver of crime lorry and at what speed the crime lorry has dashed to the motor cyclist. As can be understood from the cross examination of PW1, it is clear that heavy material is being carried by PW1 and deceased on the motor cycle and they will loose balance, whenever they are proceeding on speed breakers, as well as trenches on the road and in the said circumstances, when the crime lorry is going at a speed, PW1 might have taken small turn to avoid those trenches (uneven road) and thereby came on the way to the crime lorry and thereafter, this accident might have been caused. Added to the above, there is no whisper in the entire report of PW1 vide Ex.P1 and in his statement given to the police that he can identify the driver of the crime lorry if he shown. It is also clear from the cross examination of PW1 that the accused is shown by the police to PW1 that he is driver of the crime lorry and he has identifed the accused before this court, but it is not the evidence of PW1 that he has seen the driver of the crime lorry. It is also clearly reveals that the accident has been occurred in a busy locality and many people gathered at the scene after the accident and none of the eye witness to the accident has been arrayed. In the aforesaid backdrop, it is not proper to believe the evidence of PW1 that the accused driven the crime lorry in a rash or negligent manner and thereby this accident has been caused.

It is the defense of accused that due to negligent driving of PW1 regarding his 5 C.C.No.27/2018 XVI AM M/BML motor cycle, this accident has been caused and in order to evade the liability of

PW1 to pay compensation to the deceased family, PW1 lodged a false report vide Ex.P1 throwing blame on the driver of the crime lorry, who is accused herein and the said suggestion is denied by PW1. As can be seen from the entire evidence of PW1, coupled with report vide Ex.P1, it is clear that PW1 is at fault in driving the motor cycle bearing registration No.AP 30 AA 4012 and caused this accident and the police has taken the version of PW1 and booked the case against the accused herein.

9.The other witnesses who are examined on behalf of the prosecution are

PW2, who is scene observation mediator, through him Ex.P2 scene observation report has been marked. The evidence of PW2 that he was called by the police to the scene of ofence and they have conducted scene observation report and the police obtained his signatures on some white papers at the place of accident. As can be seen from the evidence of PW2, he was summoned to the place of accident and the police might have obtained his signatures on blank papers and thereafter, they have incorporated the scene observation report on those papers and marked as Ex.P2 report. The inquest mediator was examined as PW3 and he is the relative of deceased. The inquest mediator was called by the police to the mortuary of K.G.Hospital, Visakhapatnam and there they observed the deceased dead body and found injuries on his head, nose, ears and other parts of body. During course of cross examination of PW3, it has been elicited by the learned counsel for the accused, that he do not know the contents of the inquest report, which is marked as Ex.P3. As can be understood from the evidence of PW2 and PW3, they are the circumstantial witnesses and it is not in dispute that the accident has been occurred and the deceased died in the accident and PW1 sustained minor injuries in the said accident, which cannot be inferred from the evidence of PW2 and PW3 on whose rash or negligent driving this accident has been caused.

6 C.C.No.27/2018 XVI AM M/BML

10.The Motor Vehicle Inspector, who inspected the crime vehicle has been examined as PW4 and issued Ex.P4 report by testing the vehicle and it is opined by PW4 that the accident has been occurred not due to any mechanical defects of the crime vehicle. The police have not made any requisition to Motor Vehicle

Inspector (PW4) to inspect the motor cycle of PW1 bearing registration No.AP30

AA 4012 in order to rule out that there is no mechanical defects in the said motor bike.

11.The prosecution has not examined the medical ofcer, who conducted PM examination on deceased and also not examined the Investigation Ofcer, who conducted the investigation right from registering the case till fling of charge sheet, inspite of giving ample opportunity. After ordering the conditional order to produce the remaining witnesses by the prosecution to be examined, the prosecution has not taken any pains to produce the Investigation Ofcer or other witnesses and in the said circumstances, this court is constrained to close the prosecution evidence. At the time of section 313 Cr.P.C., also, this court is inclined to reopen the matter, if the prosecution brings the witnesses to examine on their behalf and the prosecution has not taken no such pains to examine the Investigation Ofcer or the Medical Ofcer. In any view of the matter, even otherwise, the medical ofcer and the investigation ofcer is examined before this court, there will not be any improvement in the case of prosecution, as the sole material witness i.e., PW1 has categorically deposed in his cross examination that the police have shown him the accused as driver of the crime vehicle after the accident and thereby he came before this court and identifed the accused as if this accident caused due to accused rash and negligent driving, which cannot be taken into consideration.

12.This court after taking into account, the entire evidence both oral and documentary, it is clear that the prosecution has miserably failed that the accident has been caused due to rash or negligent driving of the crime lorry by the accused and this court comes to a conclusion that the accident has been 7 C.C.No.27/2018 XVI AM M/BML caused due to fault of PW1, who is driving the motor cycle and in turn, he gave a report to the police vide Ex.P1, as if this accident has been caused due to rash and negligent driving of the accused by the crime lorry, which is not believable and therefore, this court is of considered opinion that the accused is an innocent and he has not committed this ofence and he is entitled for acquittal for the ofence levelled against him.

13.In the light of above discussion, I answered this point against the prosecution.

14.In the result, accused found not guilty and he is acquitted U/sec.255(1)

Cr.P.C. for the ofences U/sec.304-A and 337 IPC. The bail bonds of the accused if any, shall stand cancelled after appeal time is over.

(Dictated to the Stenographer Gr-II, transcribed by her and after correction,

pronounced by me in the open Court on this the 17th day of August, 2021).

Sd/-T.V.S.S.Prakash

XVI Additional Metropolitan Magistrate, Bheemunipatnam.

APPENDIX OF EVIDENCE

Witnesses Examined

For Complainant: For Defense:

PW-1: Sri V.Kanaka Raju -None- PW-2: Sri M.Narayana Rao PW-3: Sri K.Nagaraju PW-4: Sri K.Srinivas (Asst.M.V.Inspector)

Exhibits marked

For Prosecution: Ex.P1 Dt.20.06.2015: Report lodged before the police by PW1 Ex.P2 Dt.21.06.2015: Scene observation report. Ex.P3 Dt.21.06.2015: Inquest report. Ex.P4 Dt.24.06.2015: MVI report issued by PW4

For Defense: - Nil-

Material Object:-Nil-

XVI ADDITIONAL MET ROPOLITAN MAGISTRATE,

BHEEMUNIPATNAM

//True Copy//

XVI Addl .Metropolitan Magistrate Bheemunipatnam 8 C.C.No.27/2018 XVI AM M/BML

CALENDER & JUDGMENT

IN THE COURT OF XVI ADDl METROPOLITAN MAGISTRATE

BHEEMUNIPATNAM, VISAKHAPATNAM DISTRICT.

CALANDER CASE NO.27 OF 2018

(Cr.No.501/2018 of P.M.Palem Police Station)

Date of ofence :20.06.2015

Date of Report or Complaint:20.06.2015

Date of Apprehension of the accused:-- or Date of apperance of the accused

in the Court

Date of Commencement of Trial:29.01.2020

Date of closure of Trial:16.03.2020

Date of Sentence on order:17.08.2021.

Explanation for delay or remarks:The delay is due to non-production of accused and witnesses from time to time, as such there is a delay. Name of the Complainant:State Represented by the Sub InspectorofPolice, Pothinamallayyapalem Police Station, Visakhapatnam city. Name of the Accused:Vimesh Chauhan, S/o Laljit Chauhan, 34 years, R/o Akra Fatak(Pst), Alipur(MD),24Paragana District,Ravindrangar, Kolkata. Driver of Lorry bearing No.KA 25 B 8220. Ofences:U/sec.304-A and 337 IPC

Finding :Accused found not guilty for the ofence U/Sec.304-A and 337 IPC.

Sentence:

In the result, accused found not guilty and he is acquitted U/sec.255(1)

Cr.P.C. for the ofences U/sec.304-A and 337 IPC. The bail bonds of the accused if any, shall stand cancelled after appeal time is over.

d/-Smt.Shammi ParvinSd S uSd/-T.V.S.S.PrakashBegu XVI Addl .Metropolitan Magistrate Bheemunipatnam //True Copy//

XVI Addl .Metropolitan Magistrate Bheemunipatnam

Order Record 20 total

Case No.	Parties	Date	Type	Outcome
CC/300269/2018	P.M.Palem P.S. vs Baggina Goovind	23 Aug 2021	judgement	Acquitted
CC/300027/2018	P.M.Palem P.S. vs VMESH CHAUHAN	17 Aug 2021	judgement	Acquitted
CC/300134/2018	KATTAMURI RAMAMURTHY SASTRI vs CHALLA UDAY KUMAR BABU	08 Apr 2021	judgement	Acquitted
CC/362/2019	PM PALEM PS vs PATHURI RAJENDRA PRASAD	30 Mar 2021	judgement	Acquitted
CC/300129/2018	P.M.Palem P.S. vs NUVVULA AJAY	23 Mar 2021	judgement	Acquitted
CC/224/2019	Chukkala Raghuram vs Devarapalli Govindarao	22 Mar 2021	judgement	—
CC/300205/2018	VsY. Bheema Rao	22 Mar 2021	judgement	—
CC/359/2019	PM Palem PS vs MUTHUKU DEEPTHI	09 Mar 2021	judgement	—
CC/465/2019	PM PALEM PS vs CHINTA SRUTHI VARMA	08 Mar 2021	judgement	—
CC/300105/2018	P.M.Palem P.S. vs RAGATHI RAJU	08 Mar 2021	judgement	—
CC/1003/2019	Venturupalli Ratnakara Rao vs Pothina Yellaji	05 Mar 2021	order	—
CC/678/2019	PM Palem PS vs Surada Rajayya	03 Mar 2021	judgement	—
CC/203/2019	P.M.Palem P.S. vs Kotana. Joga Rao	02 Mar 2021	judgement	—
CC/300345/2017	P.M.Palem P.S. vs BASWANA SANYASI NAIDU AND ANOTHER	18 Feb 2021	judgement	—
CC/278/2019	P.M.Palem P.S. vs Choppala Samuel James Abhishek	10 Feb 2021	judgement	—
CC/300078/2018	P.M.Palem P.S. vs KAILASH NAYAK	02 Feb 2021	judgement	—
CC/300162/2018	P.M.Palem P.S. vs S Kiran Kumar	25 Jan 2021	judgement	—
CC/300164/2018	Asst. Commissioner of Police vs Kola Shyam.	25 Jan 2021	judgement	—
CC/548/2019	PM palem PS vs Madiya Kamji	24 Aug 2020	judgement	—
CC/551/2019	PM Plame Crime PS vs Madiya Kamji	24 Aug 2020	judgement	—

Frequently Asked Questions

How many cases has Sri T.V.S.S. Prakash handled?

Sri T.V.S.S. Prakash has handled 20 court orders since 2020 at JCJ Bheemunipatnam. The average disposal rate is 2 orders per month.

What types of cases does Sri T.V.S.S. Prakash hear?

Based on available records, Sri T.V.S.S. Prakash primarily handles Criminal matters (Criminal Cases) at JCJ Bheemunipatnam.

Where is Sri T.V.S.S. Prakash currently posted?

Sri T.V.S.S. Prakash is posted as I ADDITIONAL CIVIL JUDGE JUNIOR DIVISION-CUM-XV ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS BHEEMUNIPATNAM at JCJ Bheemunipatnam, Visakapatnam, Andhra Pradesh.

Are judgments by Sri T.V.S.S. Prakash available online?

Yes. 5 judgments by Sri T.V.S.S. Prakash are available on Legistro with full text, outcome, and sections cited.

How fast does Sri T.V.S.S. Prakash dispose cases?

Sri T.V.S.S. Prakash disposes approximately 2 cases per month, based on 20 orders handled over their tenure at JCJ Bheemunipatnam.

Since when is Sri T.V.S.S. Prakash serving?

Sri T.V.S.S. Prakash has been serving at JCJ Bheemunipatnam since 2020.

Case Types

CC 100%

Posting History

Jul 2021 — Aug 2021

I ADDITIONAL CIVIL JUDGE JUNIOR DIVISION-CUM-XV ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS BHEEMUNIPATNAM
Jul 2020 — Oct 2021

II ADDITIONAL CIVIL JUDGE JUNIOR DIVISION-CUM-XVI ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS BHEEMUNIPATNAM · 20 orders

Outcomes on Record

Acquitted 5

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