Sri Thousheed Hussain, Spl.JFCM Excise, ATP

1

In the Court of the Special Judicial Magistrate of First Class,

Prohibition & Excise Cases, Anantapuramu

Present:- Sri. A.Thousheed Hussain, Special Judicial Magistrate of First Class, Prohibition and Excise cases, Ananthapuramu

Wednesday the 28th day of February, 2018

C.C.NO 42/2011

State rep. By SHO., Mahila P.S.,

Anantapuram ....Complainant.

AND

1. J. Saifulla s/o Late J. Imamsab,29yrs, Jr.Asst., SEE Office, Anantapur 2.J. Fakrubee w/o Late J. Imamsab, 65yrs, Both are of D.No.5/105, V road,

Anantapur ..... Accused.

This case is coming on 27.2.2018 for final hearing before me in the presence of learned APP for state, and of Sri C. Raghurama Reddy, Advocate

for the accused, and upon hearing both sides and having perused the

material on record, this court delivered the following:

J U D G M E N T

The Sub Inspector of Police, Mahila P.S, Anantapur filed charge sheet against the accused in Cr.No.30/2011 for the offences under Section 498-A and 406 IPC and Sec.4 and 6 of D.P Act.

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

The marriage between PW1 and A1 was solemnized on 29-12-02 in the house of PW6, Tadipatri and the parents of PW1 gave Rs.30,00,000/- cash 15 tulas gold, Rs.50,000/- to purchase Hero honda Spleneder, house hold articles. PW1 joined A1 to lead marital life at 5th road, Anantapur along with A2 mother of A1 and lived happily for one year and blessed with male child. After that A1 and A2 started harassing PW1 physically and mentally for additional dowry and for simple matters.. After birth of second child A1 developed illegal intimacy with one Geetha, typist in his office and used to stay with her only and used to come home at late night and unnecessarily 2 beat PW1 and necked out from the house. PW1 informed the matter to her parents and preferred a complaint in Mahila PS and after counseling A1 took

PW1 and lived together. Since then accused harassed PW1 and necked out from the house and warned not to come without additional dowry. PW1 preferred complaint in the Mahila PS. On the complaint of PW1, LW9 registered case in Cr.No.30/09 u/s 498-A, 406 IPC and Sec.4 and 6 of D.P act.

LW9 examined the witnesses and recorded their statements and on 23-10-09

A1 was arrested and A2 secured anticipatory bail vide Cr.MP No.1606 dated 18-12-09.

3.The cognizance was taken against the accused for the offence under section U/S 498-A, 406 IPC by the learned AJFCM, Anantapuramu and numbered as C.C.274/2010.

4.On appearance of the accused, all relevant case records were furnished to them as required under section 207 of Cr.PC.

5.During the course of examination, as per the orders of the

Hon'ble District & Sessions Judge, Anantapuramu the case was transferred to

this court and it was renumbered as CC 42/2011.

6.On Consideration of entire material on record, the accused were examined U/s.239 code of Criminal Procedure, charges U/s. 498-A, IPC and

Sec.3, 4 and 6 of D.P.Act have been framed against them, read over and explained to them in Telugu, for which they denied the same and pleaded not guilty and claimed to be tried according to law.

7.In order to prove the case, prosecution examined PWs.1 to 8 and got marked Ex.P1 to P10 on behalf of the prosecution. On the other hand, DW1 is examined and Ex.D1 marked on behalf of the accused.

8.After closure of prosecution evidence the accused were examined U/sec. 313 Cr.P.C by explaining the available incriminating material on record, they denied the same and reported no defence side evidence.

9.Heard both sides

10.Now the point that arises for determination is:

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Whether the prosecution proved the guilt of accused

for the offence U/Sec 498-A, IPC and Sec.3, 4

and 6 of D.P.Act beyond all reasonable doubt?

11.POINT: PW1 deposed that she studied up to 10th class, her marriage with A1 was performed on 29.12.02 by the elders at the house of her maternal uncle Syed Vali who is the sister’s son of A2. A1 is working as

Junior lineman. At the time of marriage her father gave Rs.3,00,000/- cash,

Rs.50,000/- to purchase bike to A1, 15 tulas of gold ornaments, iron birava, cot and other house hold articles to A1 and A2 on demand. After the marriage she joined the accused at Anantapur to lead marital life and lived happily for one year and then A1 and A2 started harassing her that A1 is a government employee and if she marries another woman they will get more dowry and so they demanded her to get more dowry and used to beat her for even small things stating that she was not preparing food properly. At the time of marriage the accused were residing in a house by way of mortgage and after her marriage they intended to purchase the said house and so harassed her to get money from her parents.

12.PW1 further deposed that during their wedlock she was blessed with 2 sons Sharmas Vali 9yrs, and J. Onnur Vali 4yrs. During her stay in holidays, her father paid Rs.1,00,000/- to the accused and obtained document for purchase of said house in the name of herself and her husband. After purchasing the said house her husband forcibly obtained the document in his name alone by beating her. Her elder brother used to visit her in-laws house and the accused apprehended that she will inform the harassment and forcibly made her to say her brother not to visit her due to which her brother suspected and informed the same to her parents and a panchayat was held by elders in which they advised the accused and went away.

13.PW1 further deposed that after the birth of her second son A1 developed illegal intimacy with one M. Geetha, who is working as typist in the office of A1 and used to come home late night and harassed her that said

Geetha is government employee who is rich and having money and land and 4 he wants her only for which he will return the dowry and give half of the salary every month if she leaves him. For that A1 and A2 harassed her indiscriminately. A1 used to make phone calls to Geetha in her presence and on one occasion when A1 was trying to go to said Geetha she tried to stop him, but A2 stopped her that A1 is male and will go to anybody but, she tried to resist A1 for which A1 and A2 beat her and kept in a room and leaked gas from the gas stove by insisting her to leave A1. After 3 or 4 days A1 kept her outside the house whole night for not leaving him and on the next day allowed her to the house.

14.On 13-9-09 she contacted her parents over coin box phone. She informed the harassment of the accused to her parents and then at Mahila

PS, Anantapur who called the accused and Geetha and made counseling for 2 days. Geetha submitted that she will not continue her relationship with A1 and police sent her and accused to her matrimonial home. For one month she stayed with the accused, but the accused continued their harassment stating that she took the accused and Geetha to police station. She beared the torture as per the advise of her parents thinking about her future. The accused did not provide milk or food to her second son aged 1 ½ years then and not allowed her to go outside the house.

15.PW1 further deposed that on 19.10.09 A1 brought one tin and pressurized her to drink the content by pressing the neck of her 2nd son. On 22.10.09 she returned to her parents house and gave Ex.P1 to Mahila PS.

Ex.P2 are two photographs with negatives under which dowry was given by her parents to her husband and his family members. Ex.P3 is wedding card,

Ex.P4 is application filed by her u/s 6 of Right to Information Act. Ex.P5 is certified copy of sale deed dated 9.1.2004 under which her parents purchased a house in the name of herself and her husband. Ex.P6 is certified copy of gift deed in which her husband forcibly transferred the house. Ex.P7 is certified copy of cancellation of gift property dated 13.6.06.

16.PW2 to 4 and PW6 supported the evidence of PW1.

5 17The learned counsel for the defence argued that the prosecution failed to produce earlier complaint before this court which was given by PW1 to police which is fatal to the prosecution case.

18.Admittedly PW1 gave a complaint against the accused prior to giving

Ex.P1 but it is not fatal to the prosecution case. In the family matters these type of case, police try to compromise the matter before registering the case. The same fact was deposed by PW7 who is the investigation officer in this case that on 13.9.09 PW1 came to police station as her husband harassing her and she is accepted for conducting counseling at the counseling center, they sent PW1 to counseling center. Thereafter in counseling both accepted they will lead happy marital life, from there they went away. From the evidence of PW7 it is clear that police conducted mediation between PW1 and A1 and both accepted it and PW1 joined A1. In such circumstances no one bothered about the complaint whether to retain the complaint with them or not.

19.The learned counsel for the accused further argued that extra marital relationship of A1 cannot be treated as mental cruelty against PW1. To support their contention the learned counsel for the accused relied on a decision reported in 2015(2) ALT Crl 113 SC para 20 between Bhusabhai Raisangbhai Chorasiya and others Vs. State of Gujarat.

“20. Coming to the facts of the present case it is seen that the

factum of divorce has not been believed by the learned trial judge and the

High court. But the fact remains is that the husband and the wife had

started living separately in the same house and the deceased had told her

sister that there was severance of status and she would be going to her

parental home after the ‘Holi’ festival. True it is, there is some evidence

about the illicit relationship and even if the same is proven we are of the

considered opinion that cruelty as envisaged under the first limb of

section 498-A IPC would not be get attracted. It would be difficult to hold

that the mental cruelty was of such a degree that it would drive the wife

to commit suicide. Mere extra-marital relationship even if proved would

be illegal and immoral, as has been said in Pinakin Mahipatray Rawal

(supra) but it would take a different character if the prosecution brings

some evidence on record to show that the accused had conducted in such

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a manner to drive the wife to commit suicide. In the instant case the

accused may have been involved in an illicit relationship with the

appellant no.4 but in the absence of some other acceptable evidence on

record that can establish such high degree of mental cruelty, the

Explanation to 498-A which includes cruelty to drive a woman to commit

suicide, would not be attracted.”

20.From the above case it is clear that having extra marital relationship is not a cruelty and it is illegal and immoral act.

It is the evidence of PW1 that on one occasion, A1 leaked the gas threatening her to leave his company. Having made such allegation, PW1 did not choose to explain how she escaped the said attempt. It is not her evidence that she was rescued by others or that she escaped from the clutches of the accused. Same is the case with another alleged incident of forcing her to drink some liquid from a tin. It is her evidence that she was forced to drink the contents of a tin by pressing the throat of her son, but there was no explanation from her as to what happened next. It is not her evidence either that she escaped the said attempt of the accused by herself or that she was rescued by others. Had it been the case that the accused tried to kill her by leaking gas or by forcing her to drink the contents of a tin, he would not have backed off until the said act is completed unless some intervention is there, but surprisingly no such evidence came on record. If at all she suspected that there is threat to her life, such threat would have arisen on the day A1 leaked the gas itself. No serious incident than that can be expected from a person to set the criminal law into motion where an attempt is made to end her life by the accused, but it was not done. These allegations made by PW1 which are far from logic, throws a doubt as to whether really such incidents have occurred as deposed by her.

21.The learned counsel for the accused further argued that as per Rule 5 of Dowry Prohibition Rules the limitation to prosecute the accused is one year from the date of demand of dowry. Admittedly, as per the evidence of Pws1 to 3 they gave 3 lakhs, 15 tulas, Rs.50,000/- cash to purchase motor bike and other articles at 7 the time of marriage. Admittedly, the marriage took place in the year 2002 and the complaint given by PW1 in the year 2009 i.e., more than 7 years after the date of alleged payment of the amount and other articles. Hence, as per Rule.5 of Dowry

Prohibition Rules the report given by PW1 is not at all maintainable and it is barred by limitation.

22.Further more, PW3 gave one lakh to A1 to purchase the property under

Ex.P5 in the year 2004. Hence, as per Rule 5 of D.P.Rules the provisions of D.P.Act is not maintainable and it is barred by limitation as the complaint given in the year 2009.

23.Since the allegations are that dowry has been given at the time of marriage and additional dowry given in the year 2004 to purchase the house under Ex.P5, PW1 was entitled to recover back that dowry within three months from the date of marriage and if the same was not handed over to her, an offence had been committed u/s 6 of D.P. Act which was punishable with imprisonment up to the period of 2 years. In view of the provisions of

Sec.468 Cr.P.C PW1 had 3 years limitation to bring the complaint for that offence. Earlier steps taken by the PW1 on 22-10-09, by that time her remedy for prosecution of accused for the offence under D.P. Act, should be barred by limitation.

24.Pws2 to 4 and 6 are hearsay witnesses. So their evidence is not helpful to prove the prosecution case against the accused and PW5 who is independent witness turned hostile and did not support the case of the prosecution. PW7 and PW8 who are investigation officers have done routine investigation and so their evidence is also not helpful to the case of prosecution.

25.From the above discussion this court feels that the prosecution failed to prove the offences against the accused beyond all reasonable doubt for the offences u/s 498-A IPC and Sec.3, 4 and 6 of D.P.Act beyond all reasonable doubt.

26.In the result, A1 and A2 are found not guilty for the offences u/s 498-A, IPC and Sec.3, 4 and 6 of D.P.Act and they are acquitted u/s 248(1) 8

Cr.P.C for the said offences. Their bail bonds shall remain in force u/s 437-A

Cr.P.C. The unmarked case property if any, shall be destroyed after expiry of appeal time.

Dictated to stenographer in part, corrected and

pronounced by me in open court, this the 28 th day of February, 2018.

Sd/- A. Thousheed Hussain

Spl. Judicial Magistrate of I Class for Prohibition and Excise offences, Anantapuramu.

A ppendix of Evidence

Witnesses Examined

Complainant

Accused

PW1 : J. Shajabee DW1: Geetha PW2: T. Mahaboob Bee PW3: T. Nabirasool PW4: T. Allabaksh PW5: C. Narayanamma PW6: Shaik Syed Vali PW7: M. Laxminarayanamma PW8: M.P. Indira, SI of police

Exhibits marked for complainant

Ex.P1: Complaint Ex.P2: Two photos with negatives Ex.P3: Wedding card Ex.P4: Application filed by PW1 u/s 6 of Right to Information Act. Ex.P5 is certified copy of sale deed dated 9.1.2004 under which her parents purchased a house in the name of herself and her husband. Ex.P6 is certified copy of gift deed in which her husband forcibly transferred the house. Ex.P7 is certified copy of cancellation of gift property dated 13.6.06 Ex.P8: Signature of PW4 on attested copy of sale deed dt.9-1-04 Ex.P9: Portion of 161 Cr.P.C statement of PW5 Ex.P10: FIR

Exhibits marked for accused:

Ex.D1: 7th line in 161 Cr.P.C statement of PW6

Mos marked

Nil

Sd/- ATH

SJFCM

//True copy//

Spl. JFCM

9

CALENDAR CASES TRIED IN THE SPECIAL JUDICIAL FIRST CLASS MAGISTRATE

FOR PROHIBITION AND EXCISE CASES, ANANTAPURAMU

Date of Report or Apprehe Released Commen Close of Sentence

Offence Complain nsion of on bail cement trial Order

t accused of trial Prior to 22.10.09A1= A1=2.11.3.2.201217.11.1728.2.2018 22.10.0923.10.092009 A2=18.12 .09

Calendar and Judgment in CC.No.42/2011 on the file of Special Judicial First

Class Magistrate for Prohibition and Excise Cases, Anantapuramu.

Complainant : Mahila P.S Anantapur

Cr.No. : 30/2011

Name of theAgeFather'sName Religion CallingResidenceMandal Accused J. Saifulla29Late J.Muslim--V roadAnantapur Imamsab

J. Fakrubee65Late J.Muslim--V roadAnantapur Imamsab

Offence :-U/s 498-A, IPC and Sec.3, 4 and 6 of D.P.Act

Finding :- Found not guilty

Sentence or Order:-In the result, A1 and A2 are found not guilty for the offences u/s 498-A, IPC and Sec.3, 4 and 6 of D.P.Act and they are acquitted u/s 248(1) Cr.P.C for the said offences. Their bail bonds shall remain in force u/s 437-A Cr.P.C. The unmarked case property if any, shall be destroyed after expiry of appeal time.

Special Judicial I Class Magistrate, for Prohibition and Excise Cases, Anantapuramu.

1

In the Court of the Special Judicial Magistrate of First Class,

Prohibition & Excise Cases, Anantapuramu

Present:- Sri. A.Thousheed Hussain, Special Judicial Magistrate of First Class, Prohibition and Excise cases, Ananthapuramu

Tuesday the 28th day of February, 2018

C.C.NO 343/2012

Between bb

D.Brahmananda Reddy, 41yrs, S/o.D. Venkatarami Reddy, 1-1-365, R.K.Nagar, Ananthapuramu.

....Complainant.

AND

M. Ramamurthy, 38yrs, s/o Muniappa, Site No.27, near New Mariamma Devasthanam (back side), 7th cross, 8th main, Muniswara Badavani,

Kengeri Upanagar, Banglore-60 ..... Accused.

This case is coming on 27-08-2017 for final hearing before me in the presence of Sri. P. Guruprasad, Advocate for Complainant, Sri A.

Sureshkumar, Advocate for the accused, and upon hearing both sides and having perused the material on record, this court delivered the following:

J U D G M E N T

This Complaint is filed by the Complainant against the accused for the offence U/s. 138 of NI Act.

2.The brief facts of the complaint as follows:

The accused, professed that he is the absolute owner of the property mentioned n the schedule and induced the complainant and Anjan

Reddy to purchase the same for which the complainant and Anjan Reddy paid an amount of Rs.2,00,000/- as an advance and the accused executed agreement of sale. The complainant and Anjan Reddy paid Rs.15,00,000/- towards balance consideration on 26-1-08 and then Rs.25,00,000/- on 28.3.08. In total Rs.42,00,000/- the complainant paid Rs.25,00,000/- and 2 Anjan Reddy paid Rs.17,00,000/-. Subsequently, it came to light that there are number of sharers tot eh said property. Admitting the fraud played by the accused, for repayment of legally enforceable debt the accused issued two cheques bearing No.902645, 902644 for an amount of Rs.12,50,000/- each dated 14.10.10 drawn on Centurion Bank of Punjab Ltd., Peenya branch, Banglore. The complainant presented the cheques into his account in IDBI Bank, Anantapur branch for collection on 1-3-2011, but they were dishonored with endorsement as insufficient funds upon which, the complainant got issued legal notice to accused on 17-3-2011, having received notice, accused did not give any reply. Accused has not paid the amount due under the said cheques and thereby the accused is liable for punishment for the offence U/s.138 of Negotiable Instrument Act.

3.The cognizance was taken against the accused for the offence under section U/S 138 of Negotiable Instrument Act by the learned AJFCM,

Anantapuramu and numbered as C.C.22/2012.

4.On appearance of the accused, all relevant case records were furnished to him as required under section 207 of Cr.PC.

5.During the course of examination, as per the orders of the

Hon'ble District & Sessions Judge, Anantapuramu the case was transferred to

this court and it was renumbered as CC 343/2012.

6.On Consideration of entire material on record, accused was examined U/s.251 code of Criminal Procedure, substance of accusation U/s.

138 of Negotiable Instrument Act, read over and explained to him in Telugu, for which he denied the same and pleaded not guilty and claimed to be tried according to law.

7.The Complainant in order to prove his case examined himself as

PW.1 and got marked Ex.P1 to Ex.P8.

8.After closure of prosecution evidence the accused is examined

U/sec. 313 Cr.P.C by explaining the available incriminating material on record, he denied the same and reported no defence side evidence.

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9.Heard both sides

10.Now the points for determination are that

1. Whether there is subsistence of legally enforceable debt due by the accused to the complainant?

2. Whether the complainant received the cheque towards discharge of legally enforceable debt?

4. Whether the complainant is able to prove the guilt of the

accused beyond all reasonable doubt for the offence u/s 138

of N.I.Act?

11.The learned counsel for the complainant argued that the evidence of PW1 and Ex.P1 to P8 proved the fact that the accused issued the cheques towards legally recoverable debt and thus presumption available u/s 118 and 139 of N.I Act must be pressed into service. He further argued that condition for filing of complaint u/s 138 of N.I Act satisfied. He further argued that though the complainant was cross examined by the defence, nothing important was elicited from the cross examination of the complainant.

12.The learned counsel for the accused argued that he never signed on Ex.P1 and the complainant forged the signatures of the accused and filed this false case against the accused.

14.Point Nos.1 and 2:In this complaint the complainant examined as PW1 and got marked Exs.P1 to P8. Ex.P1 is two original cheques bearing Nos.902644 and 902645 for Rs.12,50,000/- each dated 14.10.2010 issued by the accused. Ex.P2 is Cheque return memo by IDBI

Bank, Anantapur branch with a letter addressed by the bank. Ex.P3 is

Cheque return memo by HDFC Bank adopted by IDBI bank, Anantapur branch with a letter addressed by the bank. Ex.P4 is office copy of legal notices sent to the accused. Ex.P5 is unserved two postal covers. Ex.P6 is is two postal receipts.

18.The evidence of PW1 is that himself and Anjan Reddy paid an amount 4 of Rs.2,00,000/- as an advance and the accused executed agreement of sale for the schedule mentioned property. The complainant and Anjan Reddy paid

Rs.15,00,000/- towards balance consideration on 26-1-08 and then

Rs.25,00,000/- on 28.3.08. In total Rs.42,00,000/- the complainant paid

Rs.25,00,000/- and Anjan Reddy paid Rs.17,00,000/-. Subsequently, it came to light that there are number of sharers tot eh said property. Admitting the fraud played by the accused, for repayment of legally enforceable debt the accused issued two cheques bearing No.902645, 902644 for an amount of

Rs.12,50,000/- each dated 14.10.10 drawn on Centurion Bank of Punjab Ltd.,

Peenya branch, Banglore. The complainant presented the cheques into his account in IDBI Bank, Anantapur branch for collection on 1-3-2011, but they were dishonored with endorsement as insufficient funds upon which, the complainant got issued legal notice to accused on 17-3-2011, having received notice, accused did not give any reply

19.PW1 further deposed Ex.P1 to P8 proved the fact that the accused issued the cheques towards legally recoverable debt and that presumption available u/s 118 and 139 of N.I Act must be taken in favour of complainant. He further deposed that condition for filing of complaint u/s 138 of N.I Act satisfied. Though PW1 was cross examined by the defence, nothing important was elicited from the cross examination of the PW1 by the counsel for the accused and the evidence of PW1 was not shaken by the cross examination of accused counsel.

20.The learned counsel for the accused argued that the complainant failed to send the legal notice to the accused prior to the filing of the complaint.

21.On perusal of Ex.P6 which is returned postal cover addressed to the accused, which was not claimed by the accused and the address mentioned in Ex.P6 and complaint and on other records on hand are one and the same. When the court issued summons to the accused on the some address mentioned in Ex.P6, he refused to receive the summons. When the 5 person refused to take notice or summon or not claimed, it can be presumed that it is deemed to be served on him. At this juncture the learned counsel

for the complainant relied on a decision reported in 2015(2) ALT Crl 318

between Muthyala Bhushanam Vs. Patneedi Sreeramamurthy Another wherein it is held that, 22.“From the above decisions of the Supreme,e court

reported supra, it is clear that when a notice s sent by registered

post by correctly addressing the drawer of the cheque, the

mandatory requirement of issue of notice in terms of Clause(b) of

proviso to Section 138 of the Act stands complied with. Then, it is

for the drawer to rebut the presumption about the service of notice

and show that he had no knowledge that the notice was brought to

his address or that the address mentioned on the cover was

incorrect or that the letter was never tendered or that the report of

the postman was incorrect.

23. In the instant case, the accused contended that the

complainant got managed the postal authorities and got the

endorsement,. On the other hand, the complainant contended that

the accused managed the postal authorities and got returned the

notice to avoid payment. It is also contended that a person, who

does not pay amount, within time stipulated as per the provisions of

Section 138 of the Act, he cannot obviously contend that there was

no proper service of notice as required under section 138 of the

Negotiable instruments act, by ignoring statutory presumption to

the contrary under Section 27 of the general clauses act and section

114 of the evidence act. In this case, the endorsement on Ex.P5

clearly indicates that the complainant sent notice to the accused to

the address mentioned in the promissory note executed by the

accused. Probably, the accused must be knowing about the change

of door number and got mentioned the same in the promissory note

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executed by him. If at all the door number is not existing I the year

1998, he would have raised objection for the same being mentioned

in the promissory note or he would have given suitable notice to the

complainant stating that he has obtained blank promissory note and

got mentioned door number subsequently. In Ex.P5 cover, it is

clearly mentioned as not claimed, hence returned to the sender. It

is for the accused to rebut the presumption by adducing evidence

that the notice was never tendered and that the report of the

postman was incorrect.

24. In view of the above, it is clear that the complainant has

dispatched notice to the correct address of the accused and thus

complied with the statutory provision under section 138-b of the

negotiable instruments act. The accused did not dispute the

correctness of the address mentioned on the envelopes and

received the court summons to the address at the door No.23-36-6.

Thus, the complainant would be able to prove that the drawer of the

cheque knew about the notice issued to him and deliberately

avoided service of notice and got false endorsement only to defeat

the claim. The trial court considering provisions of section 20 of the

Act., after appreciating the entire evidence on record and after

relying on the decisions, rightly, found the guilt of the accused

under section 138 of the negotiable instruments act. Therefore, the

finding of the learned Metropolitan Sessions Judge that it is for the

complainant to examine the postman concerned to prove the

endorsement on Ex.P5 is erroneous. When the evidence on record

clearly indicates that the accused not claimed, it was returned to

the sender, therefore, the finding of the Metropolitan Sessions

Judge that the complainant has failed to prove that he issued

demand notice to accused is contrary to the evidence on record and

is, therefore, liable to be set aside.” 7

22.Coming to the case on hand, in view of the above, it is clear that the complainant has dispatched notice to the correct address of the accused and thus compelled that the statutory provisions u/s 138(b) of N.I Act.

23The learned counsel for the accused further argued that in collusion with the brother of accused, the complainant brought the cheque of accused and the complainant forged the signature of the accused and filled the contents of Ex.P1 and filed this false complaint against the accused.

24The contention of the accused is not acceptable because, if really the complainant got the cheque of the accused through accused brother and forged the signature of the accused and filled the contents of Ex.P1 by the complaint, the accused would have taken steps to recover the cheque or even would have sent Ex.P1 to the expert with his admitted signature along with disputed signature for opinion. But, the accused did not do so. Mere plea or bald allegation against the complainant is not proof. From this it appears that the accused issued Ex.P1 to the complainant to discharge the legally enforceable debt.

25The learned counsel for the accused further argued that the complainant created Ex.P7 and filed in this case which is not executed by the accused.

26.The contention of the accused is not acceptable because if really the complainant created Ex.P7 the accused would have sent Ex.P7 to expert with his admitted signatures for opinion. But the accused did not do so.

Mere plea or bald allegation against the complainant is not proof. From this it appears that the accused executed Ex.P7.

27.From the above discussion this court feels that the complainant succeeded in proving subsistence of legally enforceable debt due by the accused to the complainant and the accused failed to prove his rival 8 contention that there is no legally enforceable debt and also accused failed to rebut the presumption drawn in favour of the complainant u/s 139 of N.I

Act and thereby it can be safely concluded that Ex.P1 was issued by the accused to the complainant towards discharge of legally enforceable debt due by him.

28.Point No.3: From the above discussion on issues 1 and 2 this court is of the considered view that the guilt of the accused for the offence u/s 138 of N.I Act proved beyond reasonable doubt.

29.In the result the accused is found guilty for the offence punishable u/s 138 of Negotiable Instruments Act and he is convicted under section 255(2) Code of Criminal Procedure.

Dictated to stenographer in part, corrected and pronounced by

me in open court, this the 28th day of February, 2018.

Spl. Judicial Magistrate of I Class for Prohibition and Excise offences, Anantapuramu.

- When accused questioned with regard to the quantum of sentence, the accused pleaded that he is having mother, wife and children, his mother is suffering from ill-health and his family is depending on him and show mercy on him. Considering the gravity of offence and the plea of the accused, this

Court finds no ground to show lenient view on the accused. Hence, the

accused is sentenced to undergo simple imprisonment for a period

of six months. Further, he is directed to pay compensation of

Rs.25,00,000/- (Rupees Twenty five lakhs only) to the complainant

being the amount of the cheques within two months from this day

Under Sec.357(3) of Criminal Procedure Code and in default of payment

of said compensation, he shall undergo Simple Imprisonment for

9 three months. The remand period if any undergone by the accused shall be set off u/s 428 Cr.P.C.

Dictated to stenographer in part, corrected and pronounced by me in

open court, this the 28th day of February, 2018.

Spl. Judicial Magistrate of I Class for Prohibition and Excise offences, Anantapuramu

A ppendix of Evidence

Witnesses Examined

Complainant

Accused

PW1 : Brahmananda Reddy Nil

Exhibits marked for complainant

Ex.P1: Two original cheques bearing Nos.902644 and 902645 for Rs.12,50,000/- each dated 14.10.2010 issued by the accused. Ex.P2: Cheque return memo by IDBI Bank, Anantapur branch with a letter addressed by the bank. Ex.P3: Cheque return memo by HDFC Bank adopted by IDBI bank, Anantapur branch with a letter addressed by the bank. Ex.P4: Office copy of legal notices Ex.P5: Unserved two postal covers. Ex.P6: Two postal receipts Ex.P7: Agreement of sale Ex.P8:Translated copy of Ex.P7 from Kannada to Telugu

Exhibits marked for accused:

Nil

Mos marked

Nil

Sd/- ATH

SJFCM 10

CALENDAR CASES TRIED IN THE SPECIAL JUDICIAL FIRST CLASS MAGISTRATE

FOR PROHIBITION AND EXCISE CASES, ANANTAPURAMU

Date of Report Apprehe Release Commen Close of Sentence

Offence or nsion of d cement trial Order

Complai accused on bail of trial nt 1.3.20117.4.2011 ---- ----14.3.2014 25.9.2017 28.2.2018

Calendar and Judgment in CC.No.343/2012 on the file of Special Judicial First

Class Magistrate for Prohibition and Excise Cases, Anantapuramu.

Complainant : M. Ramamurthy, 38yrs, s/o Muniappa, Site No.27, near New Mariamma Devasthanamc (back side), 7th cross, 8th main, Muniswara Badavani, Kengeri Upanagar, Banglore-60 Cr.No.----

Name of theAgeFather'sName Religion CallingResidenceMandal Accused D. Brahma41D. VenkataHindu--AnanthapuramAnantapuram nandarami Reddy Reddy

Offence :-Under section 138 of N.I.Act.

Finding :- Guilty.

Sentence or Order:-In the result, the accused is found guilty for the offence punishable u/s 138 of Negotiable Instruments Act and he is convicted under section 255(2) Code of Criminal Procedure and the accused is sentenced to undergo simple imprisonment for a period of six months. Further, he is directed to pay compensation

of Rs.25,00,000/- (Rupees Twenty five lakhs only) to the complainant being the

amount of the cheques within two months from this day Under Sec.357(3) of Criminal Procedure Code and in default of payment of said compensation, he shall undergo Simple Imprisonment for three months. The remand period if any undergone by the accused shall be set off u/s 428 Cr.P.C.

Special Judicial I Class Magistrate, for Prohibition and Excise Cases, Anantapuramu.

11

In the Court of the Special Judicial Magistrate of First Class,

Prohibition & Excise Cases, Anantapuramu

Present:- A.Thousheed Hussain, Special Judicial Magistrate of First

Class, Prohibition and Excise cases, Ananthapuramu

Friday the 23 rd day of February, 2018

C.C.NO.126/2016

Between:-

State Rep. by Sub-Inspector of Police, Atmakur Circle P.S. …Complainant

AND 1.Boya Jayaramudu @ Jaya, 23yrs, 2.Boya Bala Veerappa @ Balu, 25yrs, Both are sons of Katamaiah,

Mannila Village, Ananthapuramu Rural ... Accused

This case is coming on 21.2.2018 for final hearing before me in the presence of APP for the state and of Sri. A. Narayanappa, Advocate for the accused, and upon hearing both sides and having perused the material on record, this court delivered the following:

J U D G M E N T

The Sub Inspector of Atmakur Circle P.S. filed charge sheet against the accused in Cr.No.95/13 and 107/13 for the offence punishable u/s 394 or 411 of IPC.

2.The brief contents of the charge sheet are as follows:

On 1.9.2013 at about 7-20pm on Ananthapuramu-Bellary SH 32 road, near Aravakuru vilalge, Kuderu Mandal two unknown offenders came on motor cycle from Ananthapuram side and abused Pws1 to 3 while they were going to Kuderu on their TVS moped and kicked the said moped due to which Pws1 to 3 fell down and then offenders tried to snatch gold mangalasuthram chain from the possession of PW2 and when she opposed, the offenders hacked her on her left hand with sickle and caused bleeding injury and snatched her gold chain weighing 3 ½ tulas worth Rs.35,000/- and 2 went away towards Ananthapuram side on their motor cycle. On a complaint given by PW1, PW9 registered a case in Cr.No.95/2013 u/s 394 IPC, sent PW1 to GGH, Ananthapuramu for treatment. PW10 took up investigation and examined PW1,2 and LW4 and recorded their statements, inspected the scene of offence, prepared rough sketch.

On 20.10.13 at about 7-30pm on Ananthapuram-Bellary road near fields of Maruthi, Gotkuru village, Kuderu two unknown offenders came on motor cycle from Ananthapur side and abused PW3 and PW4 while they were going to Gotkuru on motor cycle, the offenders stopped the vehicle of

PW4 and beat him with stick on his head and caused bleeding injury and then snatched away 3 tulas gold mangalasuthram chain, cash of RS.7000/- and Nokia mobile phone from the possession of PW3 and PW4 and went away. PW3 and 4 were shifted to GGH, Anantapur by LW6 Purushotham

Reddy. On a complaint given by PW3 on 21.10.13 PW9 registered a case in

Cr.No.107/13 u/s 394 IPC. PW10 took up investigation, and examined PW3,4,

LW6 and LW7 and recorded their statements, inspected the scene of offence, prepared rough sketch. On 8.11.2013 PW10 arrested the accused at Gotkur cross near Intellectual Engineering College, Kuderu. A1 and A2 confessed the commission of offences in the above said two cases. PW10 seized gold ornaments concerned in these cases and other 5 cases of Vajrakarur, Kuderu and Ananthapuram Rural PS, seized CBZ motor cycle bearing No.AP02 A6 8668 used in commission of offence, sickle, stick Red colour Pulsar motor cycle bearing No.AP02 AQ 7953 and black colour Yamaha bearing No.AP02 J 1600 of various crimes under cover of mahazar and sent them for remand.

PW8 treated PW3 and PW4 and issued wound certificates and opined that they sustained simple injuries. PW7 treated PW3 and PW4 and issued wound certificates and opined that they sustained simple injuries. PW6 conducted test identification in which PW2 identified her gold chain. After completion of investigation PW10 aid charge sheet.

3)The cognizance was taken against the accused for the offences u/s 394 or 411 IPC by the learned AJFCM, Anantapuramu and numbered as 3

C.C.50/2014. As per the orders of the Hon'ble Dist. & Sessions Judge,

Anantapuramu this case was transferred to this court and it was renumbered as C.C.126/2016.

4)On appearance of the accused, all relevant case records were furnished to them as required under section 207 of Cr.PC.

5)The accused were examined Under Section 239 Cr.P.C by framing the charges for the offences U/S 394 or 411 IPC, read over and explained to them in Telugu, for which they denied the same, pleaded not guilty and claimed to be tried according to law.

6)The prosecution examined PW1 to PW10 and got marked Ex.P1 to P14 and M.Os1 to 11. No witnesses are examined and no documents are marked on behalf of the accused.

7)After closure of prosecution side evidence, the accused were examined under Sec.313 of Cr.P.C and they denied the incriminating evidence deposed against them by the prosecution witnesses. They further stated that they no defence evidence on their behalf.

8)Heard arguments of both sides and perused the records.

9)Now the point that arises for determination is:

Whether the prosecution able to bring home the guilt

of accused for the offences punishable U/S 394

or 411 IPC beyond all reasonable doubt?

10)POINT:

The learned Assistant Public Prosecutor argued that the accused are the habitual offenders and committed theft of gold ornaments and vehicles and the evidence of prosecution witnesses corroborated with each other and supported the prosecution case and requested the court to convict the accused according to law.

11) The learned defence counsel argued that the evidence of prosecution witnesses not supported and corroborated with each other. The evidence of investigation officer and PW1 not corroborated with each other and the prosecution failed to prove the case against the accused beyond all 4 reasonable doubt. Hence, prayed to acquit the accused.

12) PW1 who is the defacto complainant in this case deposed that on 1-9-2013 at about 7-00 to 7-30pm while himself and LW3 were proceeding to

Sangameswarswamy temple and reached Aravakuru, two persons came on motor cycle and one person kicked their TVS XL as a result himself and LW3 fell down and those persons pounced them and beat them black and blue and thrown into thorny bushes by snatching gold chain weighing about 35gms and went away, he made call to his son LW4 who in turn came and took them to Kuderu PS and he lodged

Ex.P1 complaint in Cr.No.95/13 and after some time police informed that they recovered snatched chain and himself and his wife went and LW3 identified her chain and obtained interim custody.

14) PW2 Narasamma deposed that on 1-9-2013 at about 7-00 to 7-30pm while herself and PW1 were proceeding to Sangameswarswamy temple and reached

Aravakuru, two persons came on motor cycle and one person kicked their TVS XL as a result herself and PW1 fell down and those persons pounced them and beat them black and blue and thrown into thorny bushes by snatching her gold chain weighing about 35gms and went away, PW1 made call to his son LW4 who in turn came and took them to Kuderu PS and they lodged Ex.P1 complaint and after some time police informed that they recovered snatched chain and herself and PW1 went and she identified her chain and obtained interim custody

17)PW3 Prameelamma deposed that about 3yrs ago at 7-30pm while himself and LW5 were going to Gotkur and reached near Maruthi garden, two persons came on motor cycle and stopped them and all of a sudden they pounded them and beat black and blue and snatched away her mangalyamn chain weighing 30gms and also robbed Rs.7000/- and one Nokia cell phone from her son LW5 and after taking treatment at GGH, Anantapur she went to Kuderu PS and lodged Ex.P2 in Cr.No.107/13 and she obtained interim custody of her chain M.O.2.

18)PW4 Nagarjuna Reddy deposed that on 20-10-13 at 7-30pm while himself and PW3 were proceeding from Bathalapalli to Gotkuru village on motor cycle and reached near Maruthi gardens, 2 unknown persons came on motor cycle and hit his motor cycle with stick on his head as a result he sustained bleeding injury and they also beat his mother and snatched away her gold chain and fled away, later he informed the incident to LW7 who shifted them to GGH, Anantapur 5 and PW3 preferred complaint.

19)PW1 to 4 did not identify the accused whoa re the material witnesses in this case and also defacto-complainants in this case. PW6 who is one of the mediator in this case did not identify the accused. So, his evidence is not helpful to the prosecution.

20)There is no corroboration between PW5 and PW10. PW5 is another mediator to the arrest and seizure mahazar and PW10 is the investigation officer in this case. As per the evidence of PW5, Ex.P4 drafted in the garden of accused where police seized one iron rod, stick, motor cycle used in the alleged offence. PW10 admitted in cross examination that it is true that he has drafted Ex.P4 at residential area. It is true that he has not examined the inhabitants of residential area where he drafted Ex.P4.

Moreover, PW5 admitted in cross examination that they were 6 in number went to the said place i.e., one S.I., 3 constables, himself and LW8.

21)The evidence of PW10 is that he secured the rpesence of mediators PW5 and PW6 being accompanied by Inspectors of CCS,

Ananthapuramu, Inspector of Ananthapuramu Rural PS, CI of Itukalapalli and other police personnel and he proceeded to Gotkuru cross and infront of the

Intellectual Engineering College. Hence, there is no corroboration in the evidence between PW5 and PW10.

22)Further more, PW5 deposed in cross examination that he cannot say how many vehicles were checked prior to catching the accused. One constable prepared mahazar and he do not know his name, he does not know for how many crimes shown in the said mahazar, he cannot say the colour of motor cycle and its registration used by the accused. He does not know how many persons went inside the cattle yard to bring M.Os3 to 11. If really he was present at the time of arrest and seizure he would have gave answers tot he question put by the accused. But, he did not do so. So, his evidence is doubtful.

21)PW7 and PW8 are medical officers who treated PW3 and PW2 and issued wound certificates to them opining that they sustained simple 6 injuries. Even though they were examined, they did not depose anything against the accused. So, their evidence is not helpful to the case of prosecution.

22)PW9 and PW10 are the investigation officers in this case. They are pertained to registering the case, visiting the scene of offence, seizing the material objects used in the commission of offence and also seized stolen property, arrested the accused. Their evidence is not trust worthy.

23)In the above said circumstances, and in the light of the evidence,

I am of the opinion that the prosecution miserably failed to prove the offence against the accused charged u/s 394 or 411 IPC beyond all reasonable doubt. Hence, accused are entitled for benefit of doubt and benefit of doubt is given to them as the said offences are not proved against the accused.

24) In the result A1 and A2 are found not guilty for the offences punishable u/s 394 or 411 IPC and he is acquitted U/s.248(1) of Cr.P.C. for the said offences. The bail bonds of the accused shall remain in force for six months as per the provision u/s 437-A Cr.P.C. M.O1 which was already given interim custody to PW1 is made absolute. M.O.2 which was already given interim custody to PW3 is made absolute. M.O.3 to M.O.11 shall be destroyed after expiry of appeal time.

Typed to my dictation by stenographer corrected and

pronounced by me in open court, this the 23 rd day of February, 2018.

Sd/- A. Thousheed Hussain

Spl.Judl.Magistrate of Ist Class, Proh. & Excise Cases, Anatapuramu.

A ppendix of Evidence

Witnesses Examined

Prosecution Defence

PW1 : G. Kesava Reddy Nil PW.2: G. NArasamma PW.3: G. Prameelamma PW.4: G. Nagarjuna Reddy PW5: Boya Sake Prasad PW6: Patil Ravikanth PW7: Dr. B. Shivakumar PW8: Ramakrishna Chowdary 7

PW9: G. Jayapal Reddy PW10: B. Vijayakumar, S.I of police

Exhibits marked for Prosecution

Ex.P1: Complaint in Cr.No.95/15 Ex.P2 : Complaint in Cr.No.107/13 Ex.P5: Mahazar dt.8.11.13 at 1-00pm Ex.P4: Mahazar dt.8.11.13 at 6-00pm Ex.P5: Property identification Mahazar dt.11.11.13 Ex.P6: Property identification Mahazar dt.18.11.13 Ex.P7: Wound certificate of PW3 Ex.P8: Wound certificate of PW4 Ex.P9: Wound certificate of PW2 Ex.P10: FIR in Cr.No.95/13 Ex.P11: FIR in Cr.No.107/13 Ex.P12: Police proceedings Ex.P13: Rough sketch in cr.No. 95/13 Ex.P14: Rough sketch in cr.No. 107/13

Exhibits marked for defence : Nil

Mos marked

M.O.1: Gold chain in Cr.No. 95/13 M.O.2: Gold chain in Cr.No. 107/13 M.O.3: Stick M.O.4: Stick M.O.5: Helmet red in colour M.O.6: Blood stained clothes in cr.No.107/13 M.O.7: Number plate bearing No.AP02 AE 8668 M.O.8: RC bearing No.AP02 AE 8668 M.O.9: RC bearing No.AP02 AG 7953 M.O.10: Driving license of A2 M.O.11: Two spanners

Sd/- ATH

SJFCM

//True copy//

Spl.JFCM

8

CALENDAR AND JUDGMENT

District :: ANANTAPURAMU.

Calendar cases tried by the Special Judicial Magistrate of First Class, Prohibition and Excise Cases, Ananthapuramu.

Apprehensi Commence-

Released Close of Sentence Offence Report on of ment of on Bail Trial or Order

Accused Trial

1.9.2013 1.9.2013 2.10.20138.11.20134.12.20135.1.201721.12.201723.2.2018 21.10.2013

Judgment in C.C.No.126 of 2016 on the file of the Special Judicial

Magistrate of First Class, Prohibition and Excise Cases, Ananthapuramu.

Complainant: The Sub Inspector of Police, Atmakur Circle P.S

Crime No:95 and 107/13

Name of the Father's Age Religion Calling Residence Mandal Accused Name

B. Jayaramudu @ Jaya23KatamaiahHindu--MannilaAnanthapuramu

B.BalaVeerappa@ Balu25KatamaiahHindu--MannilaAnanthapuramu

Offence: U/Secs. 394 or 411 IPC

Finding: Not guilty.

Sentence: In the result, A1 and A2 are found not guilty for the offences punishable u/s 394 or 411 IPC and he is acquitted U/s.248(1) of Cr.P.C. for the said offences. The bail bonds of the accused shall remain in force for six months as per the provision u/s 437-A Cr.P.C. M.O1 which was already given interim custody to PW1 is made absolute. M.O.2 which was already given interim custody to PW3 is made absolute. M.O.3 to M.O.11 shall be destroyed after expiry of appeal time.

Spl. Judl. Magistrate of First Class,

Proh. & Excise Cases, Anatapuramu.

Copy submitted to the Hon’ble I Addl. Sessions Judge, Anantapuramu. Copy to the Superintendent of Police, Anantapuramu.

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS

SPL. MOBILE COURT, ANANTAPURAMU.

Present:- Sri A. Thousheed Hussain, Special Judicial Magistrate of I Class,

Prohibition and Excise cases, Ananthapuramu.

(FAC) Judl. First Class Magistrate, Spl. Mobile Court, Ananthapuramu.

Monday, the 23 rd Day of October, 2017

CALENDAR CASE No.666/2007

Between :-

State Represented by the Sub-Inspector of Police,

Anantapur Rural P.S. ... Complainant

AND

Kummara Patnam Ramalinga Prasad, age 34 years, S/o. K.P. Munaiah, D.No.17/191, Sanjeevaiah Nagar, Pathikonda Village and Mandal, Kurnool District. N/o. Chinna Pasupula, Chinna Mondem Mandal, Cuddapah District. … Accused.

This case coming on 17-10-2017 for final hearing before me in the presence of the learned Assistant Public Prosecutor for Prosecution and of Sri S. Shamshad Begum, Advocates for the Accused, upon hearing both sides and on perusing the material on record, and the matter having stood over for consideration till this day, and this Court delivered the following:-

JUDGMENT

1. The Sub-Inspector of Police, Anantapur Rural Police Station filed charge sheet against accused for the offences U/Sec.379 or 411 I.P.C in his station Crime Nos.5/2005 and 6/2005.

2. The case of the prosecution as per the charge sheet is that on the intervening night of 15/16-12-2004 at A. Narayanapuram fields, some unknown offenders committed theft of 11 KV 3 wires, 662 meters aluminum conductor wire from S.S.3 transformer and 840 metres of 34 spans AAA conductor wire from AA-III, worth about Rs.21,550/-. On the complaint of

PW.1 D. Himavathi, Asst. Engineer, APCPDCLP, Distribution, Anantapur,

LW.5 D. Ramanjaneyulu, S.I of Police, AnantapurRural P.S, registered a case in Cr.No.5/2005 U/S.379 IPC and investigated into.

2

a) On the intervening night of 16/17-12-2004 at A. Narayanapuram fields, some unknown offenders committed theft of ACSR conductor wire worth about Rs.11,720/- from the electric Poles belongs to APCPDCL. On the complaint of PW.1 D. Himavathi, Asst. Engineer, APCPDCLP, Distribution,

Anantapur, LW.5 D. Ramanjaneyulu, S.I of Police, Anantapur Rural P.S, registered a case in Cr.No.6/2005 U/S.379 IPC and investigated into.

b) During the course of investigation on 20.01.2005 at 7:00 AM at

Jallipalli Cross Road, Anantapur – Bellary Road, LW.7 J. Thirupal Raju, C.I of

Police with the assistance of PW.4 S. Murali Krishna, S.I of Police, Kuderu

P.S stopped Trax Jeep bearing No.AP-02-C-5329 in the presence of mahazardars i.e., PW.2 Veerappa and PW.3 K. Ahobilam, two strangers alighted from the jeep and absconded. PW.4 arrested the accused and seized 4 bundles of alluminium wire worth Rs.21,550/- and Trax Jeep bearing

No.AP-2-C-5329 under cover of a mahazar in the presence of mediators and sent him for remand. PW.1 examined the bit of seized wire and issued

Gauge Certificate. After completion of investigation, PW.5 G. Rajasekhar,

Sub-Inspector of Police, Anantapur Rural P.S filed charge sheet in this case.

3. After filing charge sheet, this case was taken cognizance by the

Addl. Judl. Magistrate of I class, Anantapuramu for the offence U/S.411 I.P.C and numbered as C.C.118/2007. As per the proceedings of Hon'ble District and Session Judge, Anantapurmu, this case was transferred to this court and renumbered the same as C.C.666/2007.

4. On appearance of Accused, copies of case records were furnished to him as required Under Sec. 207 of Cr.P.C.

5. The accused was examined Under Sec.239 Cr.P.C and a charge

U/Sec.379 or 411 I.P.C was framed, read over and explained to the accused in Telugu. He pleaded not guilty and claimed to be tried.

3

6. To prove its case, the prosecution examined PWs-1 to 5 and marked Exs.P-1 to P-8 and MOs.1 to 3. PW.1 D. Himavathi, then Asst.

Engineer Distribution, APCPDCLP is the complainant in this case. PW.2

Veerappa, PW.3 K. Ahobilam are the mahazardars in this case. PW.4

S.Murali Krishna, S.I of Police, Kuderu P.S and PW.5 G. Rajasekhar, S.I of

Police, Anantapur Rural P.S are the Investigating Officers. Ex.P1 is the complaint of PW.1 dt.16.12.2004. Ex.P2 is enclosure LT and 11 KV sketch of

A. Narayanapuram of line diagram. Ex.P3 is Complaint of PW.1 dt.17.12.2004. Ex.P4 Sketch. Ex.P5 is certificate. Ex.P6 is signature of PW.2 on the arrest and seizure mahazar dt.20.01.2005. Ex.P7 is signature of PW.3 on the arrest and seizure mahazar dt.20.01.2005 and Ex.P8 is the mahazar dt.20.1.2005. MO.1 is 11 KV 3 wire 660 meters. MO.2 is Conductor wire 840 mtrs, 34 Sq mm AAA wire and Mo.3 is 660 meters conductor wire.

7. After closure of prosecution side evidence, the accused was examined under Sec.313 of Cr.P.C and he denied the incriminating evidence deposed against him by the prosecution witnesses. He further stated that he has no more to say and he does not have any defence evidence on his behalf.

8. Heard both sides.

9. Now, the point for determination is:

“ Whether the prosecution proved the guilt of accused for the offence Under Sec.379 or 411 of I.P.C beyond all reasonable doubt ? ”

10. P O I N T :-

The case of prosecution is that on the intervening night of 15/16-12- 2004 at A. Narayanapuram fields, some unknown offenders committed theft of 11 KV 3 wires, 662 meters aluminum conductor wire from S.S.3 transformer and 840 metres of 34 spans AAA conductor wire from AA-III, 4 worth about Rs.21,550/-. On the intervening night of 16/17-12-2004 at A.

Narayanapuram fields, some unknown offenders committed theft of ACSR conductor wire worth about Rs.11,720/- from the electric Poles belongs to

APCPDCL. On the complaints of PW.1 D.Himavathi, Asst. Engineer,

APCPDCLP, Distribution, Anantapur, LW.5 D. Ramanjaneyulu, S.I of Police,

Anantapur Rural P.S, registered a case in Cr.No.5/2005 and Cr.No.6/2005

U/S.379 IPC and investigated into the case. During the course of investigation on 20.01.2005 at 7:00 AM at Jallipalli Cross Road, Anantapur –

Bellary Road, LW.7 J. Thirupal Raju, C.I of Police with the assistance of PW.4

S. Murali Krishna, S.I of Police, Kuderu P.S stopped Trax Jeep bearing

No.AP-02-C-5329 in the presence of mahazardars i.e., PW.2 Veerappa and

PW.3 K. Ahobilam, two strangers alighted from the jeep and absconded.

PW.4 arrested the accused and seized 4 bundles of alluminium wire worth

Rs.21,550/- and Trax Jeep bearing No.AP-2-C-5329 under cover of a mahazar in the presence of mediators and sent him for remand. PW.1 examined the bit of seized wire and issued Gauge Certificate. After completion of investigation, PW.5 G. Rajasekhar, Sub-Inspector of Police,

Anantapur Rural P.S filed charge sheet in this case.

11. The learned Assistant Public Prosecutor argued that PWs.2 and 3 the mediators though they did not support the prosecution case, the evidence of PW.1, PW.4 and PW.5 are corroborated with each other and requested the court to convict the accused according to law.

12. The learn defence counsel argued that PWs.2 and 3 who are the mahazardars and important witnesses in this case not supported the prosecution case and the evidence of PW.4 and PW.5 are not corroborated with each other, who are the Investigating officers in this case. The learned defence counsel further argued that Anantapur Rural Police never arrested the accused and never seized stolen property from the possession of the 5 accused and for statistical purpose, they registered a false case against the accused and to request the court to extend the benefit of doubt and acquit the accused.

13. In order to prove the case of prosecution, examined PW.1, who is complainant in this case. PW.1 deposed that on 16.12.2004 she preferred a complaint to the S.H.O., Anantapuramu Rural PS regarding theft of 660 meters of 55 sq. mm AAA conductor and 840 meters of 34 sq. mm AAA conductor near SS3 Distribution Transformer, A.Narayanauram Village and she further deposed that again on 17.12.2004 she preferred a complaint to

S.H.O., Taluk PS regarding theft of conductor 11 KV 55 sq. mm, 660 meters of AA conductor of A.Narayanauram, near SS3 Transformers which was restored by APCPDCL in consequence of theft by unknown offender and lodging of earlier complaint on 16.12.2004. M.O.1 is 11 KV3 wire 660 meters. M.O.2 is conductor wire 840 meters, 34 sq. mm AAA wire. M.O.3 is 660 meters conductor wire.

14. PW.2 Veerappa and PW.3 K. Ahobilam did not support the case of the prosecution. They stated in their evidence that they do not know the facts of this case and they never acted as mediators on 20.1.2005 at 7:00

PM while arresting and seizing of electric wire from the possession of the accused and they signed in the said mahazarnama in Police Station at the instance of the police and they do not know the contents of the arrest and seizure mahazar. Thus the evidence of PWs.2 and 3 is not helpful to the case of the prosecution.

15. PW.4 S. Murali Krishan, the then S.I of Police, Kuderu deposed in his evidence about the assisting LW.7 Thirupal Raju, C.I of Police during arrest of accused and seizure of stolen wire, jeep. He also deposed in his evidence that on 20.1.2005 at about 7:00 am, he along with C.I.,

Anantapuramu Rural, during vehicle checking at Jallipalli cross, they noticed 6 a white Trax coming from Anantapuramu side and two persons jumped from the vehicle and absconded. They could apprehend accused, who is driver and the accused confessed about committing of theft of electrical conductor wire at Muddalapuram, Narayanapuram. Then they seized four bundles of electrical conductor wire relating to Cr.Nos. 86/2004 of Kuderu PS and 5/2005 and 6/2005 of Anantapuramu Rural PS, and arrested the under cover of mahazarnama.

16. PW.5 G. Rajasekhar, S.I of Police, Anantapur Rural P.S deposed that he continued investigation in this case and after completion of investigation he filed charge sheet against the accused.

17. Now it is to be seen whether the prosecution proved the offence

U/S.379 or 411 I.P.C against the accused. In this regard PWs.2 and 3 the mediators did not support the case of prosecution, who are important witnesses in this case and PW.1 did not see the commission of offence by the accused. The evidence of PW.4 and PW.5 the Investigating Officers alone is available.

18. At this juncture it is relevant to note a decision made in 1994 (2) A.L.T. (Crl.) P.69 (A.P.)

Between

Botcha Raju

Vs.

State Rep. by the Inspector of Police,

Vizianagaram Rural Circle.

It was held that the conviction cannot be given basing on the sole evidence of the police officers without corroboration by disinterested witnesses.

7

19. For the above discussion, this Court feels that prosecution utterly failed to prove the guilt of the accused beyond all reasonable doubt for the offence under Section 379 or 411 IPC.

20. In the result, the accused is found not guilty for the offence punishable U/S.379 or 411 of IPC and he is acquitted U/s.248(1) of Cr.P.C.

The accused is released forthwith, if he is not required in any other case or crime. MO.1 to 3 shall be returned to PW.1, Asst. Engineer, APCPDCL, after expiry of appeal time.

Typed to my dictation directly by the Personal Assistant, corrected and pronounced by me in the open Court, on this the 23 rd day of October, 2017.

Sd/- A. Thousheed Hussain

Judl. First Class Magistrate Spl. Mobile Court, Anantapuramu.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTION DEFENCE

PW-1 D. Himavathi, then Asst. -- NONE Engineer Distribution, APCPDCLP is the complainant in this case.

PW-2 Veerappa is mahazardar in this case.

PW.3 K. Ahobilam is mahazardar in this case

PW.4 S.Murali Krishna, S.I of Police, Kuderu P.S is the investigating officer.

PW.5 G. Rajasekhar, S.I of Police, Anantapur Rural P.S who filed charge sheet in this case.

8

EXHIBITS MARKED FOR

PROSECUTION DEFENCE

Ex.P-1 Complaint of PW.1 --- dt.16.12.2004.

Ex.P-2 Enclosure LT and 11 KV sketch of A. Narayanapuram of line diagram.

Ex.P-3 Complaint of PW.1 dt.17.12.2004.

Ex.P-4 Sketch

Ex.P-5 Certificate.

Ex.P-6 Signature of PW.2 on the arrest and seizure mahazar dt.20.01.2005

Ex.P-7 Signature of PW.3 on the arrest and seizure mahazar dt.20.01.2005

Ex.P8 Mahazar dt.20.1.2005.

MATERIAL OBJECTS MARKED FOR PROSECUTION

MO.1: 11 KV 3 wire 660 meters.

MO.2: Conductor wire 840 mtrs, 34 Sq mm AAA wire.

MO.3: 660 meters conductor wire.

Sd/- A.T.H.

JFCM.

// True Copy //

Spl. Judl. Magistrate of I Class, Proh. & Excise Cases, (FAC) Judl. First Class Magistrate Spl. Mobile Court, Anantapuramu.

9

CALENDAR AND JUDGMENT

District :: ANANTHAPURAMU.

Calendar cases tried by the Judicial First Class Magistrate, Spl. Mobile Court, Ananthapuramu.

Commence- Apprehension Released Close of Sentence Offence Report ment of of Accused on Bail Trial or Order Trial '22.01.2005 '26.05.2011 'prior to '07.01.2005 '07.06.2017 '17.10.2017 '23.10.2017 15.12.2004 '13.04.2017 '23.10.2017

Judgment in C.C.No. 666 of 2007 on the file of the Judicial Magistrate of

First Class, Spl. Mobile Court, Anantapuramu.

Complainant: The Sub Inspector of Police, Anantapur Rural P.S.

Crime Nos: 5/2005 and 6/2005

Father's Age Religion Calling Residence Mandal Name of the Name Accused

Kummara Patnam 34 Chinna Cuddapah K.P. Munaiah Hindu -- Ramalinga Prasad Yrs. Pasupula District

Offence: U/Sec.379 or 411 I.P.C.

Finding: Not guilty.

Sentence: In the result, the accused is found not guilty for the offence punishable U/S.379 or 411 of IPC and he is acquitted U/s.248(1) of Cr.P.C.

The accused is released forthwith, if he is not required in any other case or crime. MO.1 to 3 shall be returned to PW.1, Asst. Engineer, APCPDCL, after expiry of appeal time.

Judl. First Class Magistrate Spl. Mobile Court, Anantapuramu.

Copy submitted to the Hon’ble I Addl. Sessions Judge, Anantapuramu.

Copy to the Superintendent of Police, Anantapuramu.

In the Court of the Special Judicial Magistrate of First Class,

Prohibition & Excise Cases, Anantapuramu

Present:- A.Thousheed Hussain, Special Judicial Magistrate of First

Class, Prohibition and Excise cases, Ananthapuramu

Tuesday the 27 th day of February, 2018

C.C.NO.139/2017

Between:-

State Rep. by Sub-Inspector of Police, Ananthapuram I town P.S. …Complainant

AND 1.V. Swapna d/o B. Swamy Da, 34yrs, w/o Hariharaprasad, D.No.4/2/642, Somnathnagar, Ananthapuramu 2.A. Purushotham Reddy, 60yrs, s/o Late Krishna Reddy, Retd., Senior Manager, Regional Office, Andhra Pragathi

Grameena Bank, Ananthapuramu ... Accused

This case is coming on 23.2.2018 for final hearing before me in the presence of APP for the state and of Sri. K. Viswanatha Reddy, Advocate for the accused, and upon hearing both sides and having perused the material on record, this court delivered the following:

J U D G M E N T

The Sub Inspector of Ananthapuramu I town P.S. filed charge sheet against the accused in Cr.No.28/13 for the offence punishable U/s 420 of IPC.

2.The brief contents of the charge sheet are as follows:

LW4 Harihara Prasad and A1 are husband and wife. They have individual accounts bearing No.180906 and 19653 respectively. On 21.4.2011 LW4 modified his account as joint account of himself and A1 and he is having sufficient amount in his account. Some disputes arose between

LW4 and A1 and LW4 filed divorce petition. A1 in collusion with A2 with an intention to cheat LW4, A2 facilitated A1 to draw the amount from the 2 account of LW4 while he was in abroad. A1 has withdrawn an amount of

Rs.10,41,000/-. A2 has passed passing order on her with withdrawal slips of various dates so as to enable A1 to withdraw the said amount. In fact LW4 never gave his consent to pass the said orders in favour of A1 to withdraw the amounts on 31.10.2008, 6.11.2008, 13.2.2009,30.6.2009, 12.10.2010, 26.10.2010 and 14.7.2010 for Rs.4,75,000/-, 1,00,000/-, 1800/-, 1,00,000/-, 15,000/-, 18,000/-, 14,000/-, and 5,00,297 total Rs.10,41,000/-. Again A1 with out the consent of LW1 has drawn an amount of Rs.99,000/- and

Rs.58,000/- in total Rs.11,88,000/-. Coming to know about the fraud committed by A1, LW4 gave complaint to PW1 on 17.8.12 for which the bank authorities investigated into and the investigation reveals that A2 violated the norms of the bank and facilitated A1 to draw an amount of

Rs.10,41,000/- after modifying the account as joint account as joint account

PW2 and PW3 permitted A1 to draw an amount of Rs.99,000/- on 6.7.11 and

Rs.58,000/- on 3.3.12. A2 passed the orders on withdrawal slips by obtaining the signatures of A1 on the said withdrawals . On a complaint given by PW1,

PW4 registered a case in Cr.No.28/13 u/s 420 IPC. During the course of investigation PW4 examined the witnesses, and while the investigation is still pending A1 remitted the said amount of Rs.11,88,000/- on carious dates to the credit of LW4 account . A1 and A2 obtained anticipatory bail.

3)The cognizance was taken against the accused for the offence

U/S 420 IPC by the learned AJFCM, Anantapuramu and numbered as

C.C.486/2015. As per the orders of the Hon'ble Dist. & Sessions Judge,

Anantapuramu this case was transferred to this court and it was renumbered as C.C.139/2017.

4)On appearance of the accused, all relevant case records were furnished to them as required under section 207 of Cr.PC.

5)A1 and A2 were examined Under Section 239 Cr.P.C by framing the charge for the offence U/S 420 IPC, read over and explained to them in

Telugu, for which they denied the same, pleaded not guilty and claimed to be tried according to law.

3

6)The prosecution examined PW1 to PW4 and got marked Ex.P1 to

P6. No witnesses are examined and no documents are marked on behalf of the accused.

7)After closure of prosecution side evidence, A1 and A2 were examined under Sec.313 of Cr.P.C and they denied the incriminating evidence deposed against them by the prosecution witnesses. They further stated that they have no defence evidence on their behalf.

8)Heard arguments of both sides and perused the records.

9)Now the point that arises for determination is:

Whether the Prosecution able to bring home the guilt

of accused for the offences punishable U/S 420 IPC

beyond all reasonable doubt?

10)POINT:

The learned Assistant Public Prosecutor argued that A1 with the help of A2 committed cheating by withdrawing the amounts of LW4 Harihara

Prasad husband of A1 and the evidence of prosecution witnesses corroborated with each other and supported the case of the prosecution and requested the court to convict the accused according to law.

11) The learned defence counsel argued that the victim in this case is LW4 who did not file any complaint in this case against the accused and the bank authorities conducted audit for the period 2008 to 2012 which is the period the offence took place and no irregularities are found the evidence of prosecution witnesses not supported and corroborated with each other and the prosecution fails to prove the case against the accused beyond all reasonable doubt. Hence, prayed to acquit the accused.

12) PW-1 G. Chandrasekhar Retd. Chief Manager, APGB, Nellore, deposed that he knew A.1 and A.2 present in the court. A.1 is the wife of

LW.4 Harihara Prasad. A.2 is his predecessor at Andhra Pragathi Grameena

Bank, Ananthapuramu Main Branch. Their Head office received complaint from LW.4 in the year 2004. On receipt of said complaint their Head Office 4 sent vigilance persons to their Branch. The vigilance officials found that in the account No.19653 total 10 transactions with regard to withdrawal took place from 13.10.2008 to 3.3.2012 and the amount in total withdrawal was

Rs.11,88,000/- (out of 10 transactions). The vigilance officials further found that the above said sum was withdrawn by A.1. The role of A.2 with regard to his passing order on the withdrawals is confined to total 8 transactions. It was further found that on 21.4.2011 LW.4 changed the above said account into joint account including A.1 as account holder. The vigilance officials further noticed after the account changed into joint account two more transactions with regard to withdrawal took place in the said branch and on one withdrawal approximately about Rs.99,000/- was passed by PW.2 and one another transaction concerned to Rs.58,000/- of withdrawal by A.1 was passed by PW3, the Assistant Managers of above said branch concerned.

After obtaining permission from his superior officers he filed complaint under

Ex.P1 in this case. The report shown to him dated 22.1.2013 is the report prepared by him at Ananthapuramu I town PS. He mentioned in detailed with regard to the number of the account and transactions and all the details with regard to above said withdrawals. He knew the contents of Ex.P.1 and also handed over Annexure under Ex.P2 in 3 papers along with the complaint.

13) It is undisputed fact that A1 is wife of LW4 Harihara Prasad .

14) The learned counsel for the accused argued that PW1’s bank conducted audit during the years 2008 to 2012 and no irregularities found by the auditors. This is the period where alleged transaction took place.

15) PW1 admitted in his cross examination that every year their bank conducts audit in the branches in the months of April. The auditors did not point out any irregularities from the year 2008 to 2012. From the admission of PW1 it is noticed that auditor did not find any irregularities in the bank during the alleged transaction. If really the alleged transactions were void, then the auditor would have find out the same, but the auditor did not find the same.

16)The learned counsel for the accused argued that the alleged 5 aggrieved party is LW4 Hariharaprasad who never preferred any complaint against the accused before police which is fatal to the prosecution case.

17)PW1 admitted that there is no complaint to the above said transactions from the year 2008 to 2012 from anybody. He know that if any frauds happen in the individual account, the individual account holder can prefer complaint directly to the police. LW4 never stated before us that he is going to give any complaint against the accused for the above said alleged transactions. It is true that if account holder did not give any complaint for fraud entries in his account them they will not give complaint to the police.

PW4 admitted that it is true he did not receive the complaint from LW4 that he was cheated by bank.

18)From the admission of PW1 and PW4 it is clear that LW4 did not prefer any complaint against the accused before police. If really he was cheated by the accused, then he would prefer the complaint against the accused, but he did not do so which is fatal tot he prosecution case. Further more PW1 deposed that, it is true that irregularity is different from cheating.

It is true that the amount which was received is rectified. The said fact is corroborated by PW4 that Ex.P4 to P6 received amounts and deposed that it is true that Ex.P4 to P6 are internal transactions between bank and customer and further deposed that it is true that LW4 not given any complaint to him that he was cheated by bank. The said corroboration of PW1 evidence coupled with PW4 evidence that the charge may not attract to A1 and A2.

19)The evidence of PW2 and PW3 who are the successor branch managers of A2 did not speak about the alleged earlier transactions. But they also gave pass orders on withdrawals and they deposed that there was no cheating occurred in the case which is fatal to the prosecution case.

20)In the above said circumstances, and in the light of the evidence,

I am of the opinion that the prosecution miserably failed to prove the offences against the accused charged u/s 420 IPC beyond all reasonable doubt. Hence, A1 and A2 are entitled for benefit of doubt and benefit of doubt is given to them as the said offence is not proved against the accused.

6

21) In the result A1 and A2 are found not guilty for the offence punishable U/s 420 IPC and they are acquitted U/s.248(1) of Cr.P.C for the said offence. The bail bonds of the accused shall remain in force for six months as per the provision u/s 437-A Cr.P.C. The unmarked case property if any, shall be destroyed after expiry of appeal time.

Typed to my dictation by stenographer corrected and

pronounced by me in open court, this the 27 th day of February, 2018.

Sd/- A. Thousheed Hussain

Spl.Judl.Magistrate of Ist Class, Proh. & Excise Cases, Anatapuramu

A ppendix of Evidence

Witnesses Examined

Prosecution Defence

PW1 : G. Chandrasekhar Nil PW.2: R. Lalitha PW.3: E. Prahallada PW.4: K. Dharani Kishore, SI of police

Exhibits marked for Prosecution

Ex.P1 : Complaint Ex.P2: Annexure II Ex.P3 : FIR Ex.P4: Letter addressed by PW1 to SHO I town PS dt.2.4.13 Ex.P5: Letter addressed by PW1 to SHO I town PS dt.5.12.13 Ex.P6: Letter addressed by PW1 to SHO I town PS dt.10.7.13

Exhibits marked for defence : Nil

Mos marked

NIL

Sd/- ATH

SJFCM

//True copy//

Spl.JFCM

7

CALENDAR AND JUDGMENT

District :: ANANTAPURAMU.

Calendar cases tried by the Special Judicial Magistrate of First Class, Prohibition and Excise Cases, Ananthapuramu.

Apprehensio Released Commence- Close of Sentence or Offence Report n of Accused on Bail ment of Trial Trial Order Prior to 9.2.20135.5.20145.5.20146.12.20179.1.201827.2.2018 9.2.13

Judgment in C.C.No.139 of 2017 on the file of the Special Judicial

Magistrate of First Class, Prohibition and Excise Cases, Ananthapuramu.

Complainant: The Sub Inspector of Police, Ananthapuramu I town P.S

Crime No: 28/2013

Name of the Father's Age Religion Calling Residence Mandal Accused Name

B. Swamy DaBommalata V. SwapnaHinduAnanthapuramu 34palli --

Late KrishnaRetd., A.PurushothamAnantapuramu 60ReddyHindu--Sr.Manager Reddy

Offence: U/S 420 IPC

Finding: Not guilty.

Sentence: In the result, A1 and A2 are found not guilty for the offence punishable U/s 420 IPC and they are acquitted U/s.248(1) of Cr.P.C for the said offence. The bail bonds of the accused shall remain in force for six months as per the provision u/s 437-A Cr.P.C. The unmarked case property if any, shall be destroyed after expiry of appeal time.

Spl. Judl. Magistrate of First Class,

Proh. & Excise Cases, Anatapuramu.

Copy submitted to the Hon’ble I Addl. Sessions Judge, Anantapuramu. Copy to the Superintendent of Police, Anantapuramu.