V. Eshwaraiah

1 OS.No.89 OF 2017

FAIR COPY

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE AT: BODHAN

PRESENT:- SRI.V.ESHWARAIAH,

PRINCIPAL JUNIOR CIVIL JUDGE, BODHAN

DATED, THIS THE 8 th DAY OF JANUARY, 2020

O.S.No.89 OF 2017

BETWEEN :-

Moothi Satyanarayana S/o.Satyanarayana, aged 42 years, Occ: Agriculture, R/o.Kotaiah Camp village, Satyanarayanapuram Gram Panchayath, Varni Mandal, Nizamabad District. …PLAINTIFF

AND

Shaik Shadullah S/o.Shaik Masthan, aged 38 years, Occ: Business, R/o.Kotaiah Camp village, Satyanarayanapuram Gram Panchayath, Varni Mandal, Nizamabad District. … DEFENDANT

This suit coming before me for final hearing on 16-12-2019 in the presence of Sri.V.Sangam, Advocate for the plaintiff and of Sri.C.Gopal Reddy, Advocate for the defendant and the matter having stood over for consideration till this day, this court delivered the following:-

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

1.This suit is instituted by the plaintiff for recovery of an amount of

Rs.2,61,240.50 Paise along with interest and for costs basing on two promissory notes Dt.28-05-2015 and 29-01-2016 against the sole defendant.

2.It is further submitted by the plaintiff that the plaintiff and defendant are well acquainted with each other, as they are same villagers. Out of such acquaintance, on 28-05-2015 the defendant borrowed loan amount of Rs.1,30,000/- to meet his needs.

After receiving the said amount, on the same day the defendant executed promissory note in favour of the plaintiff agreeing to repay the same on demand with interest at 2 OS.No.89 OF 2017 the rate of 24% per annum. Subsequently, again on 29-01-2016 the defendant borrowed loan amount of Rs.50,000/- and executed another promissory note in favour of the plaintiff agreeing to repay the same on demand with interest at the rate of 24% per annum. Thereafter, the plaintiff requested the defendant several times to repay the borrowed amounts along with interest, but in vain. As such, the plaintiff got issued a legal notice to the defendant on 28-02-2017 demanding him to repay the amounts and even the said legal notice was received by the defendant, neither he replied nor repaid the amount. Hence, this suit.

3. After receiving the summons from the court, the defendant filed his written statement through his counsel admitting the execution of suit promissory note on 28.05.2015, but denied the material averments in the plaint including consideration. It is further contended that the plaintiff and his family members are moneylenders without license. The mother of the defendant used to borrow money from the plaintiff’s family. It is further submitted that as on 28.01.2013 the defendant was fell due a sum of Rs.1,50,000/-, as such, the mother of defendant executed a Mortgage

Deed on 28.01.2013 by taking net cash of Rs.2,50,000/-. The mother of defendant as and when borrowed money from the plaintiff, she used to execute the promissory notes in favour of the plaintiff. It is further submitted that subsequently when the plaintiff demanded the defendant, his mother and brother either to pay the monthly interest or to execute promissory notes, then they executed suit promissory notes for

Rs.1,30,000/- on 28.05.2015 and Rs.1,00,000/- respectively. It is further submitted that due to drought conditions, the mother of defendant could not make repayment of

Rs.2,50,000/- net cash under the mortgage deed, as such, the plaintiff got issued legal 3 OS.No.89 OF 2017 notices to the defendant and his brother on 28.02.2017 in respect of the promissory notes executed on 28.05.2015, in fact, no consideration amount was passed under the said pronotes. It is further submitted that the mother of defendant has got vacant house site plots adjacent to the mortgaged property, as such, she put her efforts to convert into house site plots and to sell the same to make repayments, but the plaintiff caused hurdles by stating that the said plots were alleged to have been mortgaged to him by the mother of defendant, as such, they cannot be sold away. It is further submitted that the plaintiff also filed suit vide OS.No.10 of 2017 on the file of

Hon’ble Senior Civil Judge, Bodhan against the mother of defendant which is

pending. It is also submitted that the plaintiff filed another suit vide OS.No.90 of 2017 before this court apart from this suit against brother of defendant and it is also pending. It is further submitted that the plaintiff charging exorbitant interest and the suit is not maintainable in law as barred by limitation and no consideration was passed to the defendant. The suit is liable to be dismissed under A.P. (Telangna Area)

Money Lenders Act, as the plaintiff not obtained license from competent authority for lending money. Hence, prayed to dismiss the suit.

4.Basing on the above pleadings, this court framed the following issues for trial on 20-08-2018:-

1) Whether the suit promissory notes dated : 28-05-2015 and 29-01-2016 are true, valid, genuine and binding on the defendant ?

2) If so, whether the plaintiff is entitled for recovery of suit amount of Rs.2,61,240.50 Paise as prayed for ?

3) To what relief?

4 OS.No.89 OF 2017

The following additional issue was framed on 04-11-2019 as per orders passed in IA.No.324 of 2019.

Whether the plaintiff is a money lender and carrying a business without

obtaining a license U/s.9 of A.P. (Telangna Area) Money Lenders Act ?

5.In order to prove the suit claim, the plaintiff examined himself as the PW.1 and also examined the two attesting witness on two promissory notes respectively as the

Pws.2 to 5 and got marked the Exs.A1 to A4. On behalf of the defendant, the defendant himself examined as the DW.1 and also examined DWs.2 and 3 but no documents are got marked on his behalf.

6.Heard both sides and perused the record.

7.Before answering the issues Nos.1 to 3, this court feels it appropriate to decide the additional issue at first.

8.ADDITIONAL ISSUE:-

Whether the plaintiff is a money lender and carrying a business without

obtaining a license U/s.9 of A.P. (Telangna Area) Money Lenders Act ?

The burden of proving this issue is heavily lies upon the defendant. It is argued on behalf of defendant that plaintiff is professional money lender and by keeping the property papers of the debtors and promissory notes, he extort money from him. It is further contended that for the first time the legal notice was issued upon the defendant on 28-02-2017 i.e after 21 months of first promissory note which alleged to have been executed on 28-05-2015. A person who is giving a loan on such onerous terms is not suppose to wait for such a long period in case of non payment of interest amount. In reply to the submission of defendant, it is argued on behalf of plaintiff that even after service of legal notice, the defendant failed to give reply to the legal notice.

5 OS.No.89 OF 2017

9.In view of the crux of this case to decide as to whether the plaintiff is a money lender without license, it is pertinent to note the relevant provisions of the Money

Lenders Act (Telangana) as follows :-

Section 2 (4) defines the loan as follows: "Loan" means a loan secured or unsecured, advanced on interest in cash or in kind and shall include every transaction which is in substance a loan but shall not include the following:

(g) a loan advanced by one trader to another trader in the ordinary course of business, in accordance with practice in trade."

Section 2 (7) defines the money lender as follows:- "(7) 'Money lender' means a person including a pawn broker, who within the meaning of this Act, only advances loan in the ordinary course of his bossiness or does so along with other business, and shall also include the legal representative of such person and the person claiming to be his representative on the ground of succession or assignment or otherwise."

Section 3 provides for registration of money lender,. Sub-

section (5) (a) of Section 3 is as follows:- "No money-lender shall carry on in any district the business of money lending without obtaining a licence provided for in sub- section (2) (b) if any person contravenes the provisions of clause

(a) he shall be punished with rigorous imprisonment for a term which may extend to six months or with fine or with both. The fine imposed shall in case of default be recoverable as arrears of land revenue. The Taluqdar shall have power to award punishment, under this clause. An appeal against his order shall lie to the Sessions Judge. (c) An offense under this sub-section shall be cognizable and bailable."

Section 5 provides for the maintenance of accounts and the furnishing of statements thereof to debtors by money lenders. Section 6 applies to additional accounts to be maintained by pawn brokers. Section 9. Which provides for the procedure of court is as follows:- 6 OS.No.89 OF 2017 "Notwithstanding anything contained in any law for the time being in force, in every suit relating to loan.

(1) The Court shall frame and decide the issues wither the money leader is a money lender as defined in sub-section (7) of Section 2 and whether he has complied with the provisions of Section 3 and of clauses (a) and (b) of sub-sec. (1) of Section 5, and sub-sections (1) and (2) of Section 6.

(2) If it is proved that the plaintiff is a money lender as defined in sub-section (7) of Section 2 but does not hold a licence granted under Section 3 the Court shall dismiss his suit.

(2-A) If it is proved that the money lender has not complied with the provisions of clause (a) of sub-section (1) of section 5 or of sub-section (1) of Section 6 or of section 8 and the plaintiff's claim is established in whole or in part, the Court may, in the circumstances of the case, disallow the whole or any portion of the interest due and may disallow the cost wholly or in part.

(3) If is proved that the money lender has not furnished the debtor with a statement of account in accordance with the provisions of clause (b) of sub-section (1) of Section 5 or sub-section (2) of Section 6 the court shall in computing the amount of interest, exclude the interest in respect of every period for which the money-lender has not furnished the debtor with the statement of account."

10. From a reading of the above provisions it is clear that the object of the Act is to serve the public purpose and protect the borrowers from unscrupulous and usurious money lenders by prohibiting them from lending moneys without obtaining licence as well as by empowering courts to dismiss the suits of such money lenders as per the principle and analogy laid down by the Hon’ble Full Bench decision in Mohd. Bin

Salem, v. Umaji. AIR 1955 Hyd 113. In order to attract the provisions of this Act, it should be first established that the plaintiff is a money lender and the loan was 7 OS.No.89 OF 2017 advanced in the ordinary course of business. The burden of establishing this fact is on the defendants. The Hon’ble Supreme Court of India held in Munagala Yadgiri v.

Pittala Veeraiah (1958 (1) Andh WR 413) that "under this Act, a professional money lender who has not obtained a licence, cannot maintain a suit in a civil court for recovery of the amount due to him. The court shall dismiss his suit. But a person who seeks to non-suit the plaintiff, should necessarily allege and establish that the plaintiff is a professional money lender." This view was also laid down in another decision held in between in Narasayamma v. Andhra Bank. AIR 1969 Andh Pra 272 by observing that. “the question, therefore, that arises in this case is whether the plaintiff is a 'money lender' within the meaning of this Act. It is the contention of the defendants that the plaintiff is a money lender and the loan was advanced in the ordinary course of business, whereas it is the case of the plaintiff that he is not a money-lender and that he had no business of money lending and that the loan was not advanced in the ordinary course of such money lending business. In deciding whether a particular transaction is one, which took place in the ordinary course of business or not, it has been held in several decisions that a stray or casual transaction by a person not possessing the licence would not amount to a transaction done in the ordinary course of business.

11.On conjoint reading of above said authoritative pronouncements, coupled with the oral and documentary evidence adduced in this case, it can be held that 28-05- 2015 the defendant borrowed the loan amount of Rs.1,30,000/- to meet his needs.

After receiving the said amount, on the same day the defendant executed promissory note in favour of the plaintiff agreeing to repay the same on demand with interest at 8 OS.No.89 OF 2017 the rate of 24% per annum. Subsequently, again on 29-01-2016 the defendant borrowed the loan amount of Rs.50,000/- and executed another promissory note in favour of the plaintiff agreeing to repay the same on demand with interest at the rate of 24% per annum. Thereafter, the plaintiff requested the defendant several times to repay the borrowed amounts along with interest, but in vain. As such, the plaintiff got issued a legal notice to the defendant on 28-02-2017 demanding him to repay the amounts and even the said legal notice was received by the defendant, neither he replied nor repaid the amount. Admittedly, the plaintiff has also filed suit against the brother of defendant vide OS.No.90 of 2017 for recovery of amount basing on another two promissory notes, as like in this case. Though the defendant pleaded that the plaintiff is a money lender without having valid license and he is doing money lending business by advancing the amounts at higher rate of interest, but the defendant has failed to produce proper, cogent and convincing evidence in support of his contention, except the bald averment in the written statement of the Dws.1 to 3. In order to attract the provisions of S. 3 (5) ( a ) of the Money Lenders Act, the plaintiff should be a money lender i.e., a person advancing monies in the normal course of business in a district without holding a licence. The Dws.2 and 3 did nto depose that they are the debtors from the PW.1. Though the Dws.2 and 3 specifically deposed that all people knew that the PW.1 has been running money lending business without license, but none are examined before this court. Basing on the oral and documentary evidence adduced by either side, this court came to conclusion that the plaintiff has not been doing any money lending business and that he is not therefore a money lender within the meaning of Section 2(7) of the Money Lenders Act. In view of the above discussion, this court holds that the Section 3 (5) (a) and Section 9 are not 9 OS.No.89 OF 2017 attracted. However, the Section 9 being penal in nature has to be strictly construed and the burden of the defendants is very heavy and that the defendants have not successfully discharged that burden in this case by placing high preponderance of probabilities. Accordingly, the Additional Issue is answered in favour of the plaintiff and against the defendant.

12. ISSUE No.1 :- In order to prove this issue, the plaintiff relied upon the oral evidence of the PWs.1 to 5. According to the PW-1, he deposed in his chief- examination affidavit by reiterating the plaint averments once again. However, the

PW-1 further relied upon the documentary evidence i.e. Exs.A1 to A4. The Exs.A1 and A2 are the Original Promissory Notes for Rs.1,30,000/- and Rs.50,000/- dated 28-05-2015 and 29-01-2016 respectively. The Ex.A3 is the office copy of legal notice

dated : 28-02-2017. The Ex.A4 is the postal receipt. The PW.2 M.Sailu and the PW.3

G.Laxmi are the attesting witnesses to the Ex.A1 promissory note. The PW.4 G.Babji and the PW.5 Saibabu are also the attestors to the Ex.A2 second promissory note. All the Pws.2 to 5 have deposed in their chief examination affidavits supporting the case of plaintiff and the oral evidence of Pws.1 to 5 are corroborating with Exs.A1 & A2.

13.In order to refute the contention of the plaintiff, the defendant seriously denied the claim of the plaintiff. Though he admitted the execution of Exs.A1 and A2 by him in favour of the plaintiff, but denied the suit transactions contending that he used to borrow loan amounts from the plaintiff who used to run money lending business without license and filed false suit in order to harass the defendant. It is denied by the

PW.1 that he is doing money lending business. During the cross examination of the 10 OS.No.89 OF 2017

Pws.2 to 5, the learned counsel for the defendant elicited nothing worthwhile in support of the case. However, the Pws.2 to 5 pleaded ignorance as to the PW.1 running money lending business without having valid license. In view of the discussion made under the additional issue, supra, and in view of failure of defendant to prove that the plaintiff is a money lendor without license, this court is of the considered opinion that the plaintiff discharged his initial and legal burden in respect of the Exs.A1 and A2. Now, the defendant has evidentiary burden to disprove the existence of the Exs.A1 and A2 and consideration thereunder, as pleaded in the written statement that he repaid the debts amounts.

14.In order to refute contention of the plaintiff the defendant for the first time pleaded in his chief examination affidavit at Para No.11 that the plaintiff in cross examination in OS.No.90 of 2017 on 16-04-2019 stated that the first transaction took place pertaining to mortgage deed for which OS.No.10 of 2017 is filed and on the same day, the other two money transactions took place with the defendant in the suit and brother of defendant i.e. this suit and another suit vide OS.No.90 of 2017. He further specifically testified that the Regd. Simple Mortgage Deed was taken place on 28-01-2013 vide Doc.No.737 of 2013 and the other two money transactions i.e.

OS.Nos.89 and 90 of 2017 are taken place on 28-05-2015, which connotes that the plaintiff filed false suits. However, this court is inclined to deal with the present suit only and the pleadings and evidence in OS.No.10 of 2017 on the file of Hon’ble

Senior Civil Judge’s Court, Bodhan is different and distinct one. The defendant as

the DW.1 in his cross examination categorically admitted that before filing of suit, the plaintiff got issued legal notice to him and he has not given reply to the said 11 OS.No.89 OF 2017 notice. The said admission itself goes to show that the defendant even after receipt of legal notice under the Ex.A3, he has failed to take any legal steps by way of issuing reply notice by mentioning all these fact to make a good defence.

15.In support of the defence of the defendant, he has not adduced any oral or documentary evidence to disprove the suit claim of the plaintiff under the Exs.A1 and

A2. However, the defendant himself examined as the DW.1 and also examined one

S.Rama Rao as the DW.2 and one Sonkamble Chander as the DW.3. The sum and substance of the chief examination affidavits of the Dws.1 to 3 is that the defendant family used to lend money from the plaintiff since last more than ten years and apart from the defendant’s family, the plaintiff also used to lend money in the village to various persons. They further testified that the plaintiff used to lend money and used to collect interest every year, so that the same interest again can be given on interest to others, therefore, the plaintiff is a money lender without having license. It is pertinent to mention here that the DW.1 in his cross examination deposed that the

Exs.A1 and A2 promissory notes are having his signatures. Except the oral evidence of the Dws.1 to 3, the defendant has not adduced the documentary evidence to rebut the case of the plaintiff to make dis-entitle him the suit claim. Moreover, the Dws.2 and 3 are not the person who borrowed the amounts from the plaintiff. It is not the case of the defendant that even after repayment of the debt, the plaintiff filed false suit to extract money illegally from him and his family members. It is also pertinent to mention here that the defendant has not pleaded in his written statement about the repayment of debt amount to the plaintiff and he has not got issued any legal notice to the plaintiff demanding him to return the original promissory notes and thereby the 12 OS.No.89 OF 2017 evidence lead on behalf of the defendant without pleading cannot be considered.

However, the defendant did not issue any legal notice demanding the plaintiff to return the blank promissory notes executed by him towards mortgage and he has also not taken steps to send the Exs.A1 and A2 to the expert for comparison and opinion so as to ascertain that the signatures under the Exs.A1 and A2 are not belongs to the defendant or not to show his bonafidies before this court and to disprove the contention of the plaintiff.

16. At the stage it is pertinent to mention that Sec.101 of Evidence Act speaks that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts, which asserts, must prove that those facts exits.

Therefore, the burden initially rests on plaintiff who has to prove the Promissory note was executed by the defendant. As soon as the execution of the Promissory note is proved, the rule of presumption laid down U/Sec.118 of Negotiable Instrument Act, comes to the plaintiff’s aid and shifting the burden on the defendant side. Therefore, from a careful reference u/s 118 (a) Negotiable Instrument Act it mandates that it imposes a duty on the court to raise a presumption in favour of the plaintiff that the

Exs.A1 and A2 are made for consideration. Such presumption is rebuttable one. If the defendant proved to have been discharged the initial onus, showing that the existence of consideration was improbable or doubtful the same was ill-legal the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact. The burden upon the defendant the non existence of consideration can be either direct or by bring on record or by preponderance of probabilities. Hence, it can be concluded that the plaintiff pleaded and proved the execution of Exs.A1 and A2 by the defendant.

13 OS.No.89 OF 2017

Accordingly, the Issue No.1 is answered in favour of the plaintiff and against the defendant.

17. ISSUE No.1, 2 and 4:- In order to prove these issues, the plaintiff again relied upon the oral evidence of the PWs.1 to 5 and the documentary evidence under the

Exs.A1 to A4. It is the contention of the defendant that he never borrowed any amount under the Exs.A1 and A2 and no consideration was passed and that the plaintiff filed this false suit. But the defendant did not choose to adduce either oral or documentary evidence to show that neither himself nor his brother nor his mother or other family members did money transactions with the plaintiff since 1996 onwards.

Thus, in the absence of the evidence, the pleadings of the defendant in the written statement are not proved. Mere pleading do not shift the burden of proof by the defendants. One must plead, lead and prove the facts by way of leading oral and documentary evidence to shift the onus onto other party preponderance of probabilities. In this case, the defendant has failed to discharge his legal burden, to disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist. The defendant, however did not take any legally permissible steps in the light of his denial of execution of Exs.A1 and A2 for sending the same to Finger Print

Expert for comparison of his admitted signatures with that of the signatures attributed to him under Exs.A1 and A2 which is time barred and could have proved his case with any amount of scientific evidence, if he really did not execute the Exs.A1 and

A2 towards interest and not received consideration.

14 OS.No.89 OF 2017

18.Therefore, on a consideration of the oral and documentary evidence available on record, this court holds that the plaintiff proved that the defendant borrowed an amount of Rs.1,30,000/- and Rs.50,000/- from the plaintiff on respective dates on 28- 05-2015 and 29-01-2016 and executed the Exs.A1 and A2 suit pronotes but failed to pay neither the principal nor the interest amount mentioned therein. Thus, the Issue

Nos.1, 2 and 4 are answered in favour of the plaintiff and against the defendant, and the plaintiff is entitled for decree for a sum of Rs.2,61,240.50 Paise.

19.IN THE RESULT, this suit is decreed with costs in favour of the plaintiff and the defendant is directed to pay the suit amount of Rs.2,61,240.50 Paise to the plaintiff forthwith. The plaintiff is entitled interest rate 12% per annum on the

principal sum adjudged amount from the date of suit, till the date of decree. The

plaintiff is also entitled for future interest rate 6% per annum from the date of decree till realization.

Partly dictated to my Stenographer, transcribed by him and partly typed to my dictation, corrected and pronounced by me in open Court on this the 8th day of January, 2020.

PRL. JUNIOR CIVIL JUDGE,

BODHAN.

APPENDIX OF EVIDENCE

(WITNESSES EXAMINED ON BEHALF OF)

FOR PLAINTIFF: FOR DEFENDANT:

PW-1 M.SatyanarayanaDW-1 Shaik Shadullah PW-2 M.SailuDW-2 S.Rama Rao PW-3 G.LaxmanDW-3 Sonkamble Chander PW-4 G.Babji PW-5 Saibabu 15 OS.No.89 OF 2017

(EXHIBITS MARKED)

FOR PLAINTIFF: FOR DEFENDANT:

Ex.A1 Original prontoe Dt.28-05-2015 for Rs.1,30,000/- -NIL- Ex.A2 Original prontoe Dt.29-01-2016 for Rs.50,000/- Ex.A3 Office copy of legal notice Dt.28-02-2017 Ex.A4 Original postal receipt Dt.28-02-2017

PRL. JUNIOR CIVIL JUDGE,

BODHAN.

1 CC.No.120 of 2015

FAIR COPY

IN THE COURT OF THE I ADDL. JUDL. MAGISTRATE OF FIRST CLASS,

BODHAN

Present: Sri. V.Eshwaraiah, FAC:I Addl. Judl. Magistrate of First Class, Bodhan.

Friday, this the 15th day of November, 2019

CC.No.120 of 2015

Between:

The State through the S.I. of Police, P.S. Varni.

.. Complainant

AND

A1:Mohd.Ahmed S/o Fakeer Ahmed, age 55 yrs, Caste:Muslim Occ: Driver of Auto B.No. AP-25-V-8262, R/o.Sangameshwar colony, Banswada.

A2:Shaik Qamar S/o Shaik Khaja, age 40 yrs, Caste: Muslim, Occ: Business, R/o. H.No.9-12-68, Ahnedpura colony, Nizamabad.

.. Accused

This case is coming on 06-11-2019 before me for fnal hearing and disposal in the presence of the learned Sr. A.P.P.O., for the State and of Sri

Md.Wajeed Hussain, Advocate for the accused persons and having stood over for consideration till this day, this Court delivered the following:

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

1.The then Sub-Inspector of Police, PS.Varni has fled the charge sheet against the accused Nos.1 and 2 herein in Cr.No.40/2015 for the ofences punishable U/s.338 and 337 of the IPC and Section 181 of the M.V. Act against the accused No.1 and for the ofences punishable U/s.180 of the M.V. Act against the accused No.2.

2.The brief facts of the prosecution case are as follows:-

SRI V.ESHWARIAH [AJMFC] 2 CC.No.120 of 2015

That on 04.03.2015 at 5.00 P.M. the defacto complainant Sri Mirdoddi

Naresh came to the police station and lodged report stating that on 03.03.2015 when the father of complainant namely Mirdoddi Ramulu, Kottala Krishna

Reddy, and Gandla Abbaiah were present at Tea stall situated at Bus Stand of

Govur village, meanwhile, at about 4.40 P.M. one auto bearing No.AP.25.V.8262 was coming from Nizamabad with fve passengers were inmates. The driver of the said auto drove it in rash and negligent manner and dashed against the father of complainant namely Mirdoddi Ramulu, Kottala Krishna Reddy, and

Gandla Abbaiah. Due to which, the auto turn turtle and the inmates of the auto namely Lw-4 Chakali Sailu and LW.5 Chakali Nagamani sustained injuries.

Immediately they were shifted to Government Head Quarters Hospital,

Nizamabad in 108 Amubulance. On enquiry, they came to know the name of the driver of the auto as Mohd.Ahmed. Basing on the above complaint, the

LW11-G.Anjaiah, the then S.I. of Police, Varni registered a case in Cr.No.40/2015 for the ofence U/s.337 of the IPC and issued FIR. During the course of investigation, he examined and recorded the statement of complainant, conducted the scene of ofence panchanama and drawn the rough sketch in the presence of LW7-Udlela Gangaram and LW8-Yedla Laxmi Reddy. Subsequently, he rushed to the Govt. Hqrs. Hospital, Nizamabad, where he examined and recorded the statements of the other injured persons Lws.2 to 6 namely

M.Ramulu, Kottala Krishna Reddy, C.Sailu, Smt.C.Nagamani and Gandla

Abbaiah. Later, the Lw-11 served notices U/s.41-A of Cr.P.C. and in turn the accused complied with terms of notice. On verrifcation of vehicle documents, it was found that the accused No.1 has no driving licence, as such Section 181 of

M.V. Act is added. Further, the owner of the crime vehicle i.e. the accused No.2

SRI V.ESHWARIAH [AJMFC] 3 CC.No.120 of 2015 has allowed the accused No.1 to drive the vehicle without having driving licence and the accused No.2 is not having any valid insurance, as such, the accused

No.2 is liable for punishment for the ofences U/s.180 of the M.V. Act. After receipt of the injury certifcates of injured persons, the Section 338 and 337 of the IPC were added. After completion of entire investigation, he fled the charge sheet against the accused No.1 for the ofences punishable Under Section 338 and 337 of the IPC and Section 181 of the M.V. Act and for the ofences punishable Under Section 180 of the M.V. Act against the accused No.2.

3.This court took cognizance against the accused No.1 for the ofences punishable Under Section 338 and 337 of the IPC and Section 181 of the M.V.

Act and for the ofences punishable Under Section 180 of the M.V. Act against the accused No.2. On appearance of the accused Nos.1 and 2, the copies of all documents were furnished to them as required U/sec.207 of Cr.P.C. and when

they were examined U/Sec.251 of Cr.P.C. for which the accused No.1 pleaded not

guilty and claimed to be tried for the offence U/s.337 and 338 of the IPC and

Section 181 of the M.V. Act and for the ofence U/s.180 of M.V. Act against the accused No.2. Hence, the substance of accusations were read over and explained to them in vernacular language, for which they denied and claimed to be tried.

4.In order to prove the guilt of the accused Nos.1 and 2, the prosecution examined the Pws.1 to 10 and got marked Exs.P1 to P9 documents. On behalf of

the accused, none were examined and no documents are got marked.

SRI V.ESHWARIAH [AJMFC] 4 CC.No.120 of 2015

5.After prosecution reported its evidence as closed, the accused were examined U/s.313 Cr.P.C., explaining the incriminating material that appeared against them in the prosecution evidence. The accused denied the prosecution evidence incriminating as being false and reported no defence evidence.

6.Heard both sides and perused the record.

7.Now the point for determination is:

(i) Whether the prosecution has proved the guilt of

the accused No.1 for the ofences punishable

U/s.338 and 337 of the IPC and Section 181 of the

M.V. Act beyond all reasonable doubt?

(ii) Whether the prosecution has proved the guilt of

the accused No.2 for the ofence punishable U/s.180

of the M.V. Act beyond all reasonable doubt?

8. POINTS No.(i & ii):- To support the case of the prosecution, the prosecution has examined Pws.1 to 10 and got marked Exs.P1 to P9 documents. The PW.1 M.Naresh is the defacto complainant. The Pws.2 to 5 namely M.Ramulu, K.Kista Reddy, C.Sailu, Smt.C.Nagamani are the injured persons. The Pws.6 and 7 namely Y.Gangaram and Y.Laxmi Reddy are the panch witnesses for the scene of ofence panchanama. The Pws.9 and 10 namely Dr.T.Niharika and Dr.Aravind are the Medical Ofcers who treated the injured and issued wound certifcates. The PW.8 T.Anjaiah, the then S.I. of

Police, Varni is the Investigating Ofcer in this case.

9.It is the case of prosecution that on 03.03.2015 at about 4.40 P.M. when the Pws.2 and 3 and one G.Abbaiah were standing near a hotel situated in

Govur Bus stand, meanwhile, the Accused No.1 who is the driver the crime auto

SRI V.ESHWARIAH [AJMFC] 5 CC.No.120 of 2015 bearing No.AP 25 V 8262 came with high speed and in negligent manner dashed against them. Due to which, the said auto was turned turtle and the inmates of the auto have also sustained multiple injuries. It is further case of the prosecution that the accused No.2 being the owner of the auto, knowingly that the accused No.1 is not having valid driving license allowed the accused

No.2 to drive the auto at the relevant point of accident and thereby both the accused are liable for punishment.

10. In order to refute the contention, the learned counsel for the accused contended that the Ex.P1 is having over writings and correction in respect of the name of driver of the crime vehicle, as Md.Ahmed son of Shakeel and

Md.Hyder Ahmed, as such, there is doubt as to who is the owner of the alleged crime vehicle. It is further contended that the Pws.2 to 5 did not state the descriptive particulars of the accused person, as that of the accused No.1 is the driver. It is also contended that during the chief examination the Pws.2 and 3 they have identifed the accused No.2 as the diver of crime vehicle, but as per the evidence of the Pws.4 and 5, they specifcally deposed that the accused

No.1 was the driver of the auto. It is further contention of the accused that the

Pws.2 and 3 have identifed the Accused No.2 as the driver of auto instead of the accused No.1 and that the name of the accused No.1 is not specifcally mentioned and there is a over writings and corrections. Therefore, the prosecution has failed to prove its case against the accused persons and thereby the accused are entitled for acquittal on account of beneft of doubt.

11.In order to prove the case of the prosecution for the offence U/s.337 and 338 of

IPC and Sec.180 and 181 of M.V. Act, the prosecution must prove the following

SRI V.ESHWARIAH [AJMFC] 6 CC.No.120 of 2015

essential ingredients :-

(1) The accused No.2 must cause grievous hurt to the Pws.2 and 3.

(2) The accused No.2 must cause simple hurt to the Pws.4 and 5.

(3) The causing of hurt must be act of accused No.2, endangering life of Pws.2 to 5.

(4) Such act must have been done with rash or negligence by the accused No.2.

(5) The accused No.2 must drove the crime vehicle without having valid insurance at the relevant time of accident.

(6) The accused No.1 being the owner of crime auto, knowingly that the accused No.2 had no driving license allowed him to drive the auto at relevant time of accident.

12.Now coming to the evidence of the prosecution witnesses, the PW.1 deposed that on 03.03.2015 at about 4.40 P.M. while he was present at ZPHS,

Govoor village, meanwhile, he received information over phone from his friend namely Sailu stating that his father was met with an accident near Govoor bus stand. Immediately, he rushed there and noticed that his father was sitting on a table with left leg fracture. Thereafter, he shifted his father to Govt. Hospital,

Bodhan for treatment and later he fled Ex.P1 report with police.

13.The injured witness PW.2 deposed that on 03.03.2015 at 5.00 P.M. he along with K.Kista Reddy were having tea at tea stall situated at Govoor bus stand, meanwhile, one auto dashed against them which came in speed manner.

Due to which, his right leg was fractured and Kista Reddy sustained injuries on his back side of head, below lower elbow. Thereafter, they were shifted to hospital. The witness identifed the accused No.2 as the driver of auto.

14.The another person PW.3 Kista Reddy also deposed in the similar lines as

SRI V.ESHWARIAH [AJMFC] 7 CC.No.120 of 2015 that of the PW.2 and he too identifed the accused No.2 as the driver of auto.

The inmates of the auto and injured PW.4 Sailu and his wife PW.5 Gangamani deposed that they have boarded in an auto in Nizamabad to go to Banswada. At about 4.40 P.M. when the auto reached Govoor cross roads, meanwhile, the auto dashed against three persons who were standing on the road. Due to which, they sustained injuries and the auto also turned turtle. They further deposed that they fell down on the road and the PW.4 sustained injury on his left leg and whereas the PW.5 sustained injury on her chest. They further deposed that the accident was occurred due to negligence of the driving of the auto by the accused No.1 and that they identifed the accused No.1 before this court as the driver of the auto at the relevant time of accident.

15.The PW.6 Y.Gangaram, one of the panch witnesses for the scene of ofence panchanama deposed that at about three years back, while he was present at Govoor bus stand, meanwhile, police came and called him to the accident spot. He further deposed that the police have conducted the scene of ofence panchanama in his presence and in the presence of one Y.Laxma Reddy and thereafter he signed on the panchanama after its contents were read over to him. The Ex.P2 is the scene of ofence panchanama. The another panch witness Y.Laxma Reddy examined as the PW.7 has not supported to the case of prosecution and denied to have acted as such.

16.The investigation ofcer is examined as the PW.8 deposed on the lines of charge sheet about the manner of investigation done by him into the case. The

Pws.9 and 10 who are the medical ofcers deposed about the medical

SRI V.ESHWARIAH [AJMFC] 8 CC.No.120 of 2015 treatment given to the injured and issuance of wound certifcates.

17.On careful perusal of the evidence of the prosecution, the oral evidence of the

Pws.1 to 5 who are the complainant and injured persons, coupled with the complaint marked under the Ex.P1, it reveals that the alleged accident took place on 03.03.2015 at 4.40 P.M. and the case was registered on 04.03.2015 at 5.00 P.M. and there is delay of one day in lodging the complaint. On the other hand, the investigation officer PW.8 had conducted the scene of offence panchanma in the next day of the alleged incident i.e. on 04.03.2015 at 6.00 P.M. The evidence of the Pws.1 to 4 does not reveal the descriptive particulars of the driver of the auto and much less there is a correction and

over writing in Ex.P1 in respect of the name of the driver of the crime auto.

Admittedly, there is no medical record to show that the Pws.2 and 3 have sustained grievous injuries and there is no X-ray reports and so also radiologist report. The other oral evidence of the Pw-4 and 5 appear to be an accident has taken place. But it is the case of prosecution that the crime vehicle auto was turned turtle, but the said vehicle was not inspected by the Motor Vehicle

Inspector as to know what was the damage caused to the crime vehicle.

Admittedly, no prosecution witnesses have deposed the registration number of the crime vehicle in their evidence before this court. As per the Pws.2 and 3 the accused No.2 was the driver of the auto, and whereas the Pws.4 and 5 deposed that the accused No.1 was the driver of the auto. The above two inconsistent versions of the Pws.2 and 3 on one hand and of the Pws.4 and 5 on other hand, coupled with the over writing in Ex.P1 about the name of the driver of the crime auto, it creates a doubt in the mind of the court as to who was the driver of the auto at the relevant point of time. Though the prosecution proved that there is

SRI V.ESHWARIAH [AJMFC] 9 CC.No.120 of 2015 an accident accord on 03.03 .2015 at 4 .40 to 5.00p.m in the premises of an hotel at Govuru village bus stand, but the identity of the accused No.1 did not establish beyond all reasonable doubts. It is not the case of the prosecution that the accused No.2 who is the owner of crime vehicle was also accompanied with the accused No.1. In the absence of the accused No.2 in the auto, how the

Pw-2 and Pw-3 identifed him as a driver of the crime vehicle. Under these facts and circumstances, the oral evidence of the Pws.1 to 5 is not inspiring the confidence of this court that the accused No.1 was the driver of crime vehicle. In view of above said discussion, this court came to safe conclusion that the prosecution has failed to prove its case against the accused for the offences U/s.337 and 338 of IPC due to

inadequate evidence.

18. So far as the ofences U/s.180 and 181 of Motor Vehicles Act are concerned, the prosecution relied upon the oral evidence of the PW.8 who is the investigation officer.

In order to prove the identity of the auto bearing No.AP.25.V.8262, the investigation officer did not seize the vehicle and did not collect any documents pertaining to the said motor vehicle from the Regional Transport Office and it was not got examined

by the Motor Vehicle Inspector concerned to know the actual cause of accident.

Admittedly, the involvement of the accused is not proved in the commission of the

offence and the confession made to the police officer is irrelevant. It is well

established principle of criminal law that the burden or proof always rests on the prosecution, that too beyond reasonable doubt. To prove the ingredients of Sections

SRI V.ESHWARIAH [AJMFC] 10 CC.No.120 of 2015 180 and 181 of the Motor Vehicles Act, first of all the accident must be occurred and subsequently not having driving license and insurance by the accused Nos.1 and 2 to be established by the prosecution. Therefore, this court is of the opinion that the involvement of the accused No.1 and driving the crime vehicle at the relevant point of time and not established by the prosecution. As such, the benefit of doubt is extended

to the accused.

19.From the above said discussion, the prosecution have failed to prove the guilt of the accused Nos.1 and 2 beyond all reasonable doubt. Therefore, the accused No.1 is entitled for acquittal for the ofences punishable U/s. 338 and 337 of the IPC and Section 181 of the M.V. Act and the accused No.2 is entitled for acquittal for the ofences punishable U/s.180 of the M.V. Act. The point is accordingly answered against the prosecution and in favour of the accused.

20.In the result, the accused No.1 is found not guilty for the ofences punishable U/s.338 and 337 of the IPC and Section 181 of the M.V. Act and the accused No.2 is found not guilty for the ofences U/s.180 and of the M.V. Act and accordingly, they are acquitted U/s.255 (1) Cr.P.C. The bail bonds of the accused shall stands cancelled subjected to Sec.437-A of Cr.P.C. The bail bonds of the accused persons shall stand discharged deposited into the Court, if any, shall be destroyed after the appeal time is over.

Typed to my dictation by the Typist, corrected and pronounced by me in the open Court on this the 15th day of November, 2019.

I Addl. Judl. Magistrate of First Class,

SRI V.ESHWARIAH [AJMFC] 11 CC.No.120 of 2015

Bodhan.

APPENDIX OF EVIDENCE

(WITNESSES EXAMINED ON BEHALF OF)

FOR PROSECUTION: FOR DEFENCE:

PW1: (LW1)M.NareshDefacto complainant - None -

PW2: (LW2)M.Ramulu.Injured & father of the Complianant.

PW3: (LW3)K.Kista ReddyInjured and eye witness.

PW4: (LW4)C.SailooInjured and eye witness.

Pw5:(LW5)C.NagamaniInjured and eye witness.

Pw6:(Lw7)Y.GangaramPanch for scene of ofence Panchanama

Pw7:(LW8)Y.Laxmi ReddyPanch for scene of ofence Panchanama

PW8: (LW11) G.Anjaiah, Investigating Ofcer. SI of Police.

Pw9(LW9)Dr.T.NiharikaMedical ofcer

Pw10 (LW10) Dr.AravindMedical ofcer

EXHIBITS MARKED

FOR PROSECUTION: FOR DEFENCE: Ex.P1: Complainant- Nil - Ex.P2: Scene of ofence panchanama along with rough sketch. Ex.P3: Is signature in 161Cr.P.C statement Ex.P4: 161 Cr.P.C. statement of PW4. Ex.P5: First Information Report Ex.P6:Injury certifcate of PW3 Ex.P7: Injury certifcate of PW4 Ex.P8: Injury certifcate of PW5. Ex.P9: Injury certifcate of PW6

MATERIAL OBJECTS MARKED

- NIL -

SRI V.ESHWARIAH [AJMFC] 12 CC.No.120 of 2015

I Addl. Judl. Magistrate of First Class, Bodhan.

SRI V.ESHWARIAH [AJMFC] 13 CC.No.120 of 2015

CALENDAR AND JUDGMENT(IN THE FORM OF PDF IN CD)

IN THE COURT OF THE I ADDL. JUDL. MAGISTRATE OF FIRST CLASS, BODHAN

CC.No.120 of 2015

1. Date of ofence:04.03.2015

2. Date of complaint :04.03.2015

3. Date of apprehension:04.03.2015

4. Date of release :04.03.2015

5. Date of commencement of trial:

6. Date of closure of trial:

7. Date of Judgment:15.11.2019.

8. Explanation of delay or remarks:- -

Complainant: The State through Sub Inspector of Police, Varni.

Description of accused:

A1:Mohd.Ahmed S/o Fakeer Ahmed, age 55 yrs, Caste:Muslim Occ: Driver of Auto B.No. AP-25-V-8262, R/o.Sangameshwar colony, Banswada.

A2:Shaik Qamar S/o Shaik Khaja, age 40 yrs, Caste: Muslim, Occ: Business, R/o. H.No.9-12-68, Ahnedpura colony, Nizamabad.

Ofence Under Section: U/s.304-A, 337 & 338 of the IPC and Sec.181 of the M.V. Act against A1 & U/s.180 & 196 of M.V. Act against A2.

Finding: Found not guilty.

Sentence : Acquitted.

I Addl. Judl. Magistrate of First Class, Bodhan.

To, The Hon’ble I Addl. Dist. & Sessions Judge, Nizamabad.

SRI V.ESHWARIAH [AJMFC]

1 CC.No.866 OF 2018

FAIR COPY

IN THE COURT OF THE I ADDL.JUDL. MAGISTRATE OF FIRST CLASS:

AT: BODHAN.

PRESENT:- SRI V.ESHWARAIAH,

PRL. JUNIOR CIVIL JUDGE, BODHAN

FAC:I.ADDL.JUNIOR CIVIL JUDGE, BODHAN

THURSDAY, THIS THE 12 th DAY OF DECEMBER, 2019

C.C.No.866 OF 2018

BETWEEN:- The State of Telangana Rep. by P.S.Varni. … COMPLAINANT

AND

1.Khaleel Ahmad @ Jubber S/o Abdul Rahaman, age: 26 years, Caste: Muslim, Occ: Owner of Gutka R/o Ahemadapua Colony, Nizamabad.

2. Mosin Khan, S/o Mahaboob Khan, age: 41 years, Caste:Muslim, Occ: Owner and Driver of TATA ACE B.No.AP-01-X-8128, N/o Newathi street Zenatoor Tq. Of Pharbhani Dist. Of MS State, Now at Babibiya Mazeed Nizam Colony Mustaq Kirana shop Arshapalli, Nizamabad.

…ACCUSED

This case coming before me on 04-12-2019 for final hearing in the presence of the learned A.P.P.O for the complainant and of Sri M.D.Wajeed Hussian, the learned counsel for the accused and the matter having stood over till this day for consideration, this court delivered the following:-

J U D G M E N T

1.The then Sub-Inspector of Police, P.S.Varni filed the charge sheet in Crime

No.139 of 2018 for the offences punishable U/s.188,270,273 and 420 of the IPC and

Sec.20(2) of Cigarettes and Tobacco Act against both the accused.

SRI V.ESHWARAIAH [AJMFC] 2 CC.No.866 OF 2018

2.The brief allegations in the charge sheet are as follows:-

That on 14-09-2018 at 6.00 P.M. the complainant Sri Badrawar Bhav Singh,

PC.No.416 of Varni PS came to PS and lodged a complaint stating that on 14-09- 2018 at about 5:30 P.M. he received information that one TATA ACE Auto Baring

No. AP-01-X-8128 which was proceeding towards Nizamabad from Banswada consisting of Gutka bags which will cause endanger to the health of Human and for selling them to the customer by cheating them. Basing on the said report, the LW.5

S.I. of Police, Varni registered this case. During course of the investigation, the LW.5 examined and recorded the statements of Lws.1 and 2 namely B.Badrawar Bhav

Singh and P.Raju. Thereafter Lw-5 rushed to the Mallaram shivar and apprehended the accused persons along with the TATA ACE Auto B.NO.AP-01-X-8128 consisting of 20 gunny bags with Gutka and Pan Masala. Then LW-5 has secured the presence of two panch wittiness LW-3 and 4 namely Md.Mukthur and Yedaro Veeraiah, then on enquiry A1 and A2 confessed that they were bringing the Gutka Packets from

Bidar to Nizamabad in Auto on 14-09-2018 at about 10.30 a.m., they left from Bidar to Nizamabad, when they reached to shivar of Mallaram near substation, Varni

Police have caught hold of Auto. Then they shows the Gutka bags consisting 20 in

Auto, out of them 10 are white, and 5 bags SR-I, and scented tobacco and in 5 other bags sagar Pan Masala is existing. In remaining 10 bags having light green coloured bags are found Amber Tobacco packets. Then the police have seized the above 20 bags with crime vehicle, and brought to PS. Then the Lw-5 issued notice U/S.41(A)

Cr.P.C. and the same was served on them with instructions to appear before I.O.on 17-09-2018 along with suitable sureties, but they failed to comply with his

SRI V.ESHWARAIAH [AJMFC] 3 CC.No.866 OF 2018 instrutions. Then the Lw-5 sent a letter to the Food Inspector Nizamabad with request to inspect the seized Gutka and Tobacco packets and issue his report. On verifying

DL and records of Crime vehicle and found them currect. On 18-09-2018 the Lw-5 has received reliable information that the accused persons who was failed to comply the notice U/S.41(A) Cr.P.C, they are at Varni Bus Stop up on which the Lw-5 along with his staff rushed there and apprehended the accused persons and brought them to

PS and affected their arrest by issuing arrest memo and they remanded to them to judicial custody on the same day. On 10-10-2018 the report of the Gazetted Food

Inspector, Nizamabad is received vide Lr.No.SPL/GFI/NZB/2018, Dated 03-10-2018, wherein he stated that Sagar Pan Masala is not banded, SR-I scented Tobacco is banded by the Government of Telangana, and Amber Tobacco is banded by the

Government of Telnagana. After completion of the investigation, the LW.5

K.Srinivas Reddy S.I. of Police, Varni filed the charge-sheet against both the accuseds.

3.This court took cognizance for the offences U/s.188,270,273 and 420 of IPC and Sec.20(2) of Cigarettes and Tobacco Act, against both the accused. On 04-12- 2018, the copies of the documents were furnished to them as required U/Sec.207 of

Cr.P.C, when they were examined U/Sec.239 of Cr.P.C, for which the accused pleaded not guilty and claimed to be tried for the offences U/s.188,270,273 and 420 of the IPC and Sec.20(2) of Cigarettes and Tobacco Act. Hence the charges

U/s.188,270,273 and 420 of the IPC and Sec.20(2) of Cigarettes and Tobacco Act were framed, read over and explained to the accused in vernacular language.

SRI V.ESHWARAIAH [AJMFC] 4 CC.No.866 OF 2018

4.In order to bring home the guilt of the accused No.1 and 2, the prosecution examined the PWs.1 to 3 and the Exs.P-1 to P-5 and MOs.1 to 4 are marked. None were examined and no documents are marked for the accused.

5.After completion of the prosecution evidence, the accused Nos.1 and 2 were examined U/Sec.313 of Cr.P.C. with reference to the prosecution evidence appeared against them, for which the accused denied the incriminating evidence and reported no defense evidence.

6.Heard, the arguments from both sides and perused the case record.

7.Now the point for determination is:-

(i).Whether the prosecution proved its case beyond reasonable doubts for the offences U/sU/s.188,270,273,420 of the IPC.

(ii).Sec.20(2) Cigarettes and Tobacco Act against the accused Nos.1 and 2?

8. POINT : In order to prove the case of the prosecution, it examined and relied upon the oral evidence of the PWs.1 to 3. The PW.1 MD.Muthkar is punch for confession and seizure of Gutka bags. The PW-2 Badrawar Bhav Singh is the defacto complainant and Police Constable in this case. The PW.3 K.Srinivas Reddy, the then

S.I. of Police, Varni is the investigation officer in this case. Basing on report of another panch wittiness his evidence is closed.

9. In order to prove the case of the prosecution for the offence punishable U/s.188 of IPC, the prosecution has to establish the ingredients that the accused must cause disobedience to an order lawfully promulgated by a public servant and that if such disobedience causes danger to human life, health or safety, etc. Further, the

SRI V.ESHWARAIAH [AJMFC] 5 CC.No.866 OF 2018 prosecution has to establish the ingredients of Sec.270 of IPC that malignantly doing any act known to be likely to spread infection of any disease dangerous to life.

Further, the prosecution has to establish the ingredients of Sec.273 of IPC that the accused sells, or offers or exposes for sale, as food or drink, any article which has been rendered or has become noxious, or is in a state unfit for food or drink, knowing or having reason to believe that the same is noxious as food or drink. Further, the prosecution has to establish the ingredients of Sec.420 of IPC that the accused must cheat the public by selling gutkha packets which are endanger to human life. Finally, the prosecution has to establish the ingredients of Sec.20(2) Cigarettes and Tobacco

Act that the accused must sell or distribute cigarettes or tobacco products which do not contain either on the package or on their label, the specified warning and the nicotine and tar contents.

10. In order to prove the aforesaid ingredients, the prosecution mainly relied upon the oral evidence of the Pws.1 to 3 and besides on the documentary evidence i.e. the

Exs.P1 to P5. Admittedly, the panch witness for the confession and seizure panchanama examined as PW.1 has not supported the case of prosecution and he retracted from earlier version and denied to have acted as such was declared as hossitle. The evidence of the Pws.2 and 3 who are the defacto complainant and the investigation officer are only available on record for better appreciation. According to the PW.2 B.Bavsingh, PC 416 of P.S Varni, he deposed that on 14.09.2018 at 5.00p.m. he received reliable information about transporting the gutkha packets from

Banswada towards Mallaram, immediately he informed the same to his S.I. of Police,

SRI V.ESHWARAIAH [AJMFC] 6 CC.No.866 OF 2018

Varni. Thereafter he and Raju, HG along with his S.I of Police, all together proceeded to the shivar of Mallaram village. Thereafter he lodged police complaint

Ex.P2 is the F.I.R. In the cross examination of the PW.2, he admitted that he has not mentioned either in complaint or in his 161 Cr.P.C. statement that he can identify the accused person and that they were transported the gutkha packets in the vehicle. He further specifically admitted that he was not personally present at the spot when the accused persons were caught hold and by that time he returned to the police station.

The PW.2 also admitted that no panchanama was conducted in his presence. Initially, the PW.2 has not supported the case of prosecution, as such, he was declared as hostile by the learned APPO and during cross examination he admitted that himself and one Raju caught hold the accused person while they were transporting the gutkha packets in TATA ACE vehicle near Mallaram village and later they took the accused to police station. The evidence of the PW.2 in chief cross examination, is contrary to the evidence deposed by him during the cross examination by the accused, Ex.P2 is

Complainant is lodged by the Pw.2

11. The investigation officer PW.3 K.Srinivas Reddy, the then S.I. of Police, Varni deposed that on 14-09-2018 at 6-00 P.M, the PW.2 came to the Police Station and lodged a complaint. Basing on the complaint, he registered a case in Crime No.139 of 2018 for the offences U/s.188,270,273 and 420 of the IPC and Sec.20(2) of Cigarettes and Tobacco Act and issued FIR to all concerned. The Ex.P3 is the FIR. He examined and recorded the statement of Pws.2 and Lw-2 in the Police Station. Thereafter, he visited the outskirts of Mallaram Village and apprehended A1 and A2 along with

SRI V.ESHWARAIAH [AJMFC] 7 CC.No.866 OF 2018

TATA Ace Auto B.No. AP-01-X-8128 containing 20 gunny bags of Gutka and

Tobacco. Then he secured the presence of Pw1 and Y.Veeraiah and seized Tata Ace

Auto bearing and 20 gunny bags of Gutka and Tobacco from the possessen of A2 under cover of Panchanama. A1 also confessed to have committed this offence along with A2. Thereafter he brought both accused along with Crime vehicle to the Police

Station. He served notices U/s.41-A Cr.P.C. to them but they failed to comply the terms of notice. Thereafter he addressed a letter to Food Inspector Nizamabad with a request to seized Gutka and Tobacco packets and to issue report. He verified the driving license and vehicle records of Crime Vehicle are found it to be correct. On 18-09-2019 the Pw-3 received information regarding the presence of A1 and A2 near

Varni Bus Stand. Immediately he along with his staff rushed to said place and apprehended them and brought them to police station and he effected their arrest by duly issuing arrest memo. Thereafter he produced them before this court for Judicial custody. On 10-10-2018 he received a report from Food Inspector Nizamabad, the report of Food Inspector discloses that SR-I Tobacco and amber Tobacco were banned by Government of Telangana and Sagar Pan Masala is not banned by the

Government of Telangana. The Ex.P3 is F.I.R, the Ex.P4 is the admissible and relevant portion confession cum recovery panchanama, Ex.P5 is report of Food inspector and Mo.1 TATA Ace Auto B.No.AP-01-X-8128.

12. In cross examination of Pw-3 he admitted that he did not examine the persons from whom the alleged Gutka and Tobaco were purchased, and he has not made the

Food Inspector as a witness in this case. He has not examined the persons from whom the alleged gutkha and tobacco were purchased and that he has not collected any

SRI V.ESHWARAIAH [AJMFC] 8 CC.No.866 OF 2018 receipts pertaining to the Mos.2 to 4 and that he has not examined the persons from whom the Mos.2 to 4 were purchased. The PW.3 admitted that he is not authorized person to speak about the Ex.P5 report of Food Inspector and that he has not made the

Food Inspector as a witness in this case.

13. On careful perusal of the evidence of the Pws.2 and 3, admittedly, the PW.3 is not authorized to depose about the Ex.P5 which is the report of Food Inspector and moreover he has not collected any documentary evidence as to show from whom the

Mos.1 to 5 are purchased. No independent witness is examined before this court to support the case of prosecution. Admittedly, the panch witness for the confession and seizure panchanama examined as PW.1 has not supported the case of prosecution and thereby the recovery itself is not proved. The admission of the PW.2 that he was not present at the time of alleged seizure and that he cannot identify the accused person itself create doubt in the mind of the court about involvement of the accused persons in this case and their alleged transporting of Mos.2 to 5 in the Mo.1 vehicle. No victims are examined as who suffered by consuming the Tobacco and Gutka pan

Masala. Admittedly, the Pws.2 and 3 are the police personnel and the PW.2 is the subordinate to the PW.3 and there is no independent evidence adduced by the prosecution. As such, the evidence of the Pws.2 and 3 is inadequate to prove the guilt of the accused for the charged offence U/s.188, 270, 273 and 420 of IPC and

Sec.20(2) of Cigarettes and Tobacco Act beyond reasonable doubt and the accused are entitled for acquittal. Accordingly, the point is answered.

14.In the result, this Court found the accused Nos.1 and 2 are not guilty for the offences U/s.188, 270, 273 and 420 of IPC and Sec.20(2) of Cigarettes and Tobacco

SRI V.ESHWARAIAH [AJMFC] 9 CC.No.866 OF 2018

Act and they are acquitted U/s.248(1) of Cr.P.C. The bail bonds of the accused, shall stands cancelled subject to Section 437-A of Cr.P.C. The MO.1 TATA ACE Auto bearing No.AP-01-X-8128 which was given towards interim custody to its owner holds good and shall retain with him absolutely after expiry of appeal time for a period of six months. The Mos.2 to 4 which are unclaimed properties ordered to be destroyed after expiry of appeal time.

Typed to my dictation by Typist, corrected and pronounced by me in open court on this the 11th day of December, 2019.

FAC:I.ADDL.JUDICIAL FIRST CLASS MAGISTRATE, BODHAN.

APPENDIX OF EVIDENCE

(WITNESSES EXAMINED ON BEHALF OF)

FOR PROSECUTION: FOR ACCUSED: PW-1 MD.Muthkar. -NONE- PW-2 B.Bav singh PW-3 K.Srinivas Reddy, IO

EXHIBITS MARKED

FOR PROSECUTION: FOR DEFENCE:

Ex.P-1: Signature of Confession recovery Panchanama - Nill - Ex.P-2: Complainant Ex.P-3: F.I.R Ex.P-4: Addmissible and relavant of confession cum recorvery panchanama Ex.P-5: Report of Food Inspector

MATERIAL OBJECTS

MO.1: TATA ACE Auto B.No. AP-01-X-8128. MO.2: 5 plastic bag of SR-1 scented tobacco

SRI V.ESHWARAIAH [AJMFC] 10 CC.No.866 OF 2018

MO.3: 5 bags of Sagar pan masala MO.4: 10 bags of ambar tobacco

FAC:I.ADDL.JUDICIAL MAGISTRATE OF FIRST CLASS

BODHAN.

SRI V.ESHWARAIAH [AJMFC] 11 CC.No.866 OF 2018

CALENDAR AND JUDGMENT

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS

AT BODHAN.

C.C. No.866 OF 2018

1. Complainant : State, SI of Police, P.S.Varni

2. Cr.No. & Nature of Offence : Cr.No.139 /2018 U/s.188,270,273,420 of IPC and Sec.20(2) Cigarettes and Tobacco Act

3. Name of the accused :

A1: Khaleel Ahmad @ Jubber S/o Abdul Rahaman, age: 26 years, Caste: Muslim, Occ: Owner of Gutka R/o Ahemadapua Colony, Nizamabad.

A2: Mosin Khan, S/o Mahaboob Khan, age: 41 years, Caste:Muslim, Occ: Owner and Driver of TATA ACE B.No.AP-01-X-8128, N/o Newathi street Zenatoor Tq. Of Pharbhani Dist. Of MS State, Now at Babibiya Mazeed Nizam Colony Mustaq Kirana shop Arshapalli, Nizamabad.

D A T E S:

1.OFFENCE14-09-2018

2.COMPLAINT14-09-2018

3.APPREHENSION OF ACCUSED06-03-2019

4.COMMENCEMENT OF TRIAL16-08-2019

5.CLOSURE OF TRIAL21-11-2019

6.JUDGMENT12-12-2019

7.PLEA OF THE ACCUSEDNot Guilty

11.SENTENCE OR ORDER : In the result, this Court found the accused Nos.1 and 2 are not guilty for the offences U/s.188, 270, 273 and 420 of IPC and Sec.20(2) Cigarettes and Tobacco Act and they are acquitted U/s.248(1) of Cr.P.C. The bail bonds of the accused, shall stands cancelled subject to Section 437-A of Cr.P.C. The MO.1 TATA ACE Auto bearing No.AP-01-X-8128 which was given towards interim custody to its owner holds good and shall retain with him absolutely after expiry of appeal time for a period of six months. The Mos.2 to 4 which are unclaimed properties ordered to be destroyed after expiry of appeal time.

12.REMARKS : -Nil-

FAC:I.ADDL.JUDICIAL MAGISTRATE OF FIRST CLASS

SRI V.ESHWARAIAH [AJMFC] 12 CC.No.866 OF 2018

BODHAN.

SRI V.ESHWARAIAH [AJMFC]

1 CC.No.353 of 2018

:: FIAR COPY ::

IN THE COURT OF THE I ADDL. JUDICIAL MAGISTRATE OF FIRST

CLASS, AT :: BODHAN

PRESENT:- SRI V.ESHWARAIAH,

JUDICIAL FIRST CLASS MAGISTRATE, BODHAN,

FAC: I ADDL. JUDICIAL FIRST CLASS MAGISTRATE, BODHAN.

FRIDAY, THIS THE 04 th DAY OF OCTOBER, 2019

C.C.No.353 of 2018

BETWEEN:

The State of Telangana Rep. by the Sub Inspector of Police, PS Yedaplly.

.. COMPLAINANT

AND

A1: Pitla Poshetty S/o Rajaiah, age 32 yrs, Caste: Mudhiraj, Occ: Driver cum owner of Jumbo Eicher Van, R/o. Satapoor village of Yedapally Mandal.

A2: Mukeem Khan S/o Saleem khan, age 48 yrs, Caste: Muslim, Occ: Business/Owner of the Jumbo Eicher Van, R/o. Satapoor village of Yedapally Mandal.

.. ACCUSED NOs.1 & 2

This case coming before me on 27-09-2019 for final hearing in the presence of the learned Sr. APPO, for the complainant and of Sri K.Subba Rao, the learned Advocate for the accused No 1 and 2 and the matter having stood over till this day for consideration, this court delivered the following:- :: J U D G M E N T ::

1.The then Sub-Inspector of Police, P.S. Yedapally has filed the charge sheet in Crime No.17 of 2018 against the accused Nos.1 and 2 for the offences punishable U/s.379 of IPC, Sec.3 of P.D.P.P. Act and Sec.21 (1) of M.M.D.R. Act.

2.The brief allegations in the charge sheet are as follows:-

That on 22.02.2018, at 11.00 a.m., the defacto complainant Sri G.Ganga

Prasad, Head Constable, filed a police report stating that on 22.02.2018, at 4.30

SRI V.ESHWARAIAH [JMFC] 2 CC.No.353 of 2018 a.m., were conducting night patrolling duty at Pocharam Gate of Yedapally mandal, he along with the LW2-G.Srinivas, Head Constable No. 247, meanwhile, one Jumbo Eicher Van bearing No. AP-29-U-9415 coming from Pocharam Village towards Nizamabad with loaded sand and on seeing that, he stopped the Eicher.

On enquiry, the driver of the tractor revealed his name as Pitla Poshetty, who is the accused No.1, and his owner name as Mukeem Khan, who is the accused No.2, and as per the instructions of the accused No.2, the accused No.1 is transporting the sand from Manjeera river and transporting it towards Nizamabad illegally. On that, the complainant took the sand loaded Eicher Van to the PS and filed the complaint.

Basing on the report of the LW1, the LW9-Ch.Tata Babu, the SI of Police has registered this case and investigated into. During course of the investigation, the

LW9 examined and recorded the statements of the LWs 1 and 2 and enquired with the accused No.1 and on enquiry, the accused No.1 voluntarily confessed to have committed the offence and he seized the crime vehicle under a cover of panchanama in the presence of the LW5-Madastu Karunakar and LW6- Shaik

Hafeez, proceeded to the scene of offence along with the accused No.1, conducted the scene of offence panchanama examined and recorded the statements of the

LW3-Chepur Suman and LW4-Midde Chinnaiah. Thereafter, the accused were surrendered themselves before the LW.9 and were complied with the terms of notices issued U/s.41-A of Cr.P.C. The accused deposited an amount of Rs.25,000/- and submitted the original challan before the LW.9. As such, the crime vehicle was released after obtaining acknowledgment. After completion of the investigation, the

LW.9 filed the charge sheet against both the accused No. 1 and 2.

SRI V.ESHWARAIAH [JMFC] 3 CC.No.353 of 2018

3.This court took cognizance for the offences U/s.379 of IPC and Sec.3 of

PDPP Act and Sec.21 (1) of M.M.D.R. Act against the accused Nos.1 and 2 on 24.10.2016. After appearance of the accused, the copies of documents are furnished to them as required U/Sec.207 Cr.P.C, when they were examined

U/Sec.239 of Cr.P.C. for which, all the accused pleaded not guilty and claimed to be tried for the offences U/s.379 of IPC and Sec.3 of PDPP Act and Sec.21 (1) of

M.M.D.R. Act. Hence, the charges were framed for the aforesaid offences and the contents were read over and explained to the accused.

4.In order to bring home the guilt of the accused Nos.1 and 2, the prosecution examined the PWs 1 to 5 and Exs.P1 to P8 are marked. On behalf of the accused persons, no witnesses were examined and no documents were got marked.

5.After completion of the prosecution evidence, the accused Nos.1 and 2 were examined U/Sec.313 of Cr.P.C. with reference to the prosecution evidence appeared against them, for which, the accused denied the incriminating evidence of prosecution and reported no defence evidence.

6.Heard, the arguments from both sides and perused the case record.

7.Now the point for determination is:-

Whether the prosecution has proved its case beyond reasonable doubts for the offences U/s.379 of IPC and Section 3 of P.D.P.P. Act and Sec.21 (1) of M.M.D.R. Act against the accused Nos.1 and 2?

8.POINT: In order to prove its case, the prosecution examined and relied upon the oral evidence of PWs 1 to 4. The PW1- Akthar and the PW2- Sulemanuddin, who are the panch witnesses for the confession of the accused and recovery panchanama of sand. The PW3-M.Karunakar is the panch for Seizer and PW 4 is

SRI V.ESHWARAIAH [JMFC] 4 CC.No.353 of 2018 the eye witness and the PW5-Ch.Tata Babu, the S.I. of Police is the Investigating

Officer. Admittedly, the PWs 1 and 2, who are the panch witnesses for the confession of the accused andseizure of crime vehicle, did not support the case of the prosecution in any manner in respect of seizure. Therefore, the evidence of

Pws 1 and 2 is discarded, as no useful to the prosecution. The evidence of Pws 3 and 4, who are the seizer of punchanama and eye witnesses did not support the case of the prosecution in any manner in respect of seizure. Therefore, the evidence of

Pws 3 and 4 are discarded, as no useful to the prosecution. PW-9 who are the

Investigating Officer respectively, are only available on record for appreciation.

9. In order to prove the case of the prosecution for the offence punishable

U/s.379 of IPC, the prosecution has to establish two essential ingredients i.e. the

Government is the owner or possessor of the stolen property i.e, sand and the said sand should be stolen property. The accused Nos.1 and 2 with dishonest intention took the sand without knowledge of the owner of the sand. In order to prove the ownership of the sand, which is the stolen property, the prosecution relied upon the oral evidence of the Pw-5. Coming to the evidence of the PW5-Ch.Tata Babu, SI of Police, he deposed that on 22.2.2018, he along with Lw-1.G.Ganga Prasad and

Lw-2 G.Srinivas were conducting night petrolling duty in the limits of Yedapally

P.S. when they reached Pocharam gate, meantime, they noticed that one Eicher

Jumbo Van B.No. AP-29-U-9415 loaded with sand was coming from Manjeera river towards Nizamabad and they stopped the Eicher Van and asked the the driver of the Eicher van to produce the documents, for which, he failed to show any documents. He further deposed that on enquiry, he disclosed his name as Pitla

Poshetty, who is the accused No.1, and owner of the Eicher Van as Mukeem Khan,

SRI V.ESHWARAIAH [JMFC] 5 CC.No.353 of 2018 who is the accused No.2, and the accused No.1 further disclosed that he is transporting the sand at the instructions of the accused No.2 and thereafter, LW1 -

G.Ganga Prasad came to the PS along with the driver and the Eicher Van and lodged the complaint before him and basing on it, he registered this case in

Cr.No.17/2018 for the offences U/s.379 of IPC and Sec.3 of PDPP Act and Sec.21 (1) of MMDR Act and issued Ex.P6 FIR to all concerned, examined and recorded the statements of witnesses in PS, and on interrogation, the accused No.1 voluntarily confessed to have committed the offence and he recorded the confession statement of the accused No.1 and seized the crime vehicle in the presence of Pws 1 and 2 under a cover of confessional panchanama and thereafter, examined and recorded the statements of M.Chinnaiah and Ch Suman and thereafter, he brought the accused to PS, after completion of investigation, he laid the charge sheet. Ex.P7 is the admissible portion in confession-cum-recovery portion of A1 and Ex.P8 is the challan of penalty, dt: 03.03.2018.

11.In a decision reported in GIAN CHAND Vs. STATE OF HARYANA (AIR 2013 SUPREME COURT 3395), the Hon’ble Supreme Court has considered a question whether the prosecution case has to be doubted if all the witnesses are from police department. While referring to the previous case on the subject, it is categorically held in the said decision at Para Nos. 25 and 26. In

GURUJALA RAMESH Vs. STATE OF A.P. 2003 (2) ALD (Crl.) 12 A.P. the

Hon’ble High Court of Andhra Pradesh has categorically held that when a Police

Officer who detected the offence and arrested the accused, gave a report which was registered as FIR and the same officer investigated the case and filed the charge sheet, any conviction based on such investigation cannot be sustained. In a case

SRI V.ESHWARAIAH [JMFC] 6 CC.No.353 of 2018 judgment of the Hon’ble Supreme Court of India between VINOD KUMAR Vs.

STATE OF PUNJAB, DATE OF DECISION: 21 January 2015 Citation: 2015

Law suit (SC) 53, in para Nos.16 to 18 as follows:

Para No.16. Learned senior counsel would contend, (solely on the basis of evidence of recovery, a conviction is not sustainable and in the obtaining factual matrix, the presumption under section 20 of the Act would not be attracted.

Para No.17. The last plank of submission of Mr. Jain is that in the instant case, the prosecution was launched by Narinder Pal Kaushal, PW8, who has investigated into the case and therefore, the concept of fair investigation, has been totally marred as a consequence of which, the trial is vitiated. Learned senior counsel would contend that a person who is a part of the trap party is an interested witness and he would be enthusiastic to see that the trap is sustained in every manner and in such a situation, it is per se an unfair and blased investigation that frustrates the essential principle inhered under Article 21 of the constitution and eventually the trial.

Para No.18. Mr. Madhukar, learned senior counsel appearing for the State of

Punjab, per contra, would contend that the view expressed by the learned trial

judge and the High Court cannot be found fault with, for a conviction under the

Act can be based on the evidence of trap witnesses, if they are trustworthy and the ingredients of the offence are satisfied and in the case at hand, the High

Court on x-ray of the evidence has so recorded. It is urged by him that neither the learned trial judge nor the High Court has fallen into error by applying the principle of presumption as engrafted under section of the Act. It is canvassed by Mr. Madhukar that the evidence of the hostile witnesses can be placed reliance upon by the prosecution and in the obtaining factual matrix, the testimony of PW7, one of the shadow witnesses, renders immense assistance for establishing the case of the prosecution. He has with great pains, taken us through the evidence to substantiate the stand that the conviction recorded against the appellant is totally defensible.

12.It is the case of the accused Nos.1 and 2 that the police filed a false charge sheet against them for the statistical purpose and they were innocent persons. It is

SRI V.ESHWARAIAH [JMFC] 7 CC.No.353 of 2018 further contention of the accused that the police conducted panchanama and recorded the seizure panchanama in the police station itself, therefore, the independent panch witnesses did not support the case of the prosecution in any manner. No documentary evidence is filed by the prosecution to show that the revenue officials / State is having exclusive owners of the sand of the Government.

Therefore the accused Nos.1 and 2 are implicated in a false case and they are entitled for acquittal.

13. Now, in the light of the above parameters laid down by the Hon’ble

Supreme Court and High Court of A.P, the present factual matrix now requires to be analyzed to ascertain whether the testimony of the Pws.3 and 4 inspires confidence before this court in support of the case of the prosecution. Admittedly, the PWs 1 and 2 did not support the case of the prosecution. In the absence of any independent corroboration is cogent, convincing, credit worthy and reliable and those evidence cannot be placed reliance. Interestingly, according to the prosecution, the confession and seizure were conducted simultaneously and the confession of the accused Nos.1 and 2 did not lead to discovery of any new fact. In this view of the matter, the seizure panchanama becomes inadmissible in evidence in view of the provisions U/Sec.25 and 26 of the Indian Evidence Act. Admittedly, the prosecution did not file any documentary evidence to show that the

Government is the owner or having exclusive rights and possessor of the stolen property, from where, the accused alleged to have excavated the sand.

14.Under these facts and circumstances, this court feels that the prosecution neither established stolen property nor proved the ownership of the stolen property to the Government or State. Therefore, in the absence of any material adduced by

SRI V.ESHWARAIAH [JMFC] 8 CC.No.353 of 2018 the prosecution connecting to the accused Nos.1 and 2 to the offences alleged against the accused, this court is of considered view that the testimony of Pws 1 to 5 are not cogent, convincing, credit-worthy and as a sequel, the accused Nos.1 and 2 are entitled for acquittal, the point is answered accordingly.

15.In the result, this Court found both the accused Nos.1 and 2 not guilty for the offences U/s.379 of IPC and Sec.3 of P.D.P.P. Act and Section 21 (1) of M.M.D.R.

Act and they are acquitted U/Sec.248 (1) of Cr.P.C. The bail bonds of the accused shall stands cancelled subjected to Sec.437-A of Cr.P.C. The MO.1 Eicher Jumbo

Van B.No.AP.29.U.9415 given towards interim custody to its owner holds good and shall retain with him absolutely after expiry of appeal time.

Typed to my dictation by the Typist, corrected and pronounced by me in the open Court on this the 04th day of October, 2019.

FAC: I ADDL. JUDL. FIRST CLASS MAGISTRATE, BODHAN.

APPENDIX OF EVIDENCE

(WITNESSES EXAMINED ON BEHALF OF)

FOR PROSECUTION: FOR ACCUSED:

PW1: Akathar AhmedPanch witness for confession & - None - seizure panchanama of A1.

PW2: Sulemanuddin.Panch witness for confession & seizure panchanama of A1.

PW3: M.Karunkar.Panch witnesse for seizure

PW4:M.ChinnaiahEye Witness

PW5: Ch.Tata babu, SI of Investigating Officer. Police.

SRI V.ESHWARAIAH [JMFC] 9 CC.No.353 of 2018

EXHIBITS MARKED

FOR PROSECUTION:

Exs.P1 & P2: Signatures of PW1 on confession & recovery panchanama. Exs.P3 & P4: Signatures of PW2 on confession & recovery panchanama. Ex.P5:Seizare panchanaman. Ex.P6: First information report. Ex.P7: Admissible portion in confession-cum-recovery panchanama of A1. Ex.P8: Challan dt;03-03-2018.

FOR ACCUSED:

- Nil -

MATERIAL OBJECTS

FOR PROSECUTION: FOR ACCUSED:

Mo.1: The Eicher Van B.No. AP-29-U-9415- Nil -

FAC: I ADDL. JUDL. FIRST CLASS MAGISTRATE, BODHAN.

SRI V.ESHWARAIAH [JMFC] 10 CC.No.353 of 2018

:: CALENDAR AND JUDGMENT ::

IN THE COURT OF THE I ADDL. JUDL. MAGISTRATE OF FIRST CLASS : AT ::

BODHAN.

C.C.No.353 OF 2016

1. Complainant: SI of Police, P.S. Yedapally.

2. Cr.No. & Nature of Offence : Cr.No.17/2018, U/s.379 of IPC, Sec.3 of P.D.P.P. Act and Section 21 (1) of M.M.D.R. Act.

3. Name of the accused :

A1: Pitla Poshetty S/o Rajaiah, age 32 yrs, Caste: Mudhiraj, Occ: Driver cum owner of Jumbo Eicher Van, R/o. Satapoor village of Yedapally Mandal.

A2: Mukeem Khan S/o Saleem khan, age 48 yrs, Caste: Muslim, Occ: Business/Owner of the Jumbo Eicher Van, R/o. Satapoor village of Yedapally Mandal.

D A T E S:

4.OFFENCE22.02.2018.

5.COMPLAINT22.02.2018.

6.APPREHENSION OF ACCUSEDA1: 02.03.2018 & A2: 03.03.2018.

7.COMMENCEMENT OF TRIAL14.08.2019.

8.CLOSURE OF TRIAL20.09.2019.

9.JUDGMENT04.10.2019.

10.PLEA OF THE ACCUSEDNot Guilty.

11. SENTENCE OR ORDER: In the result, this Court found both the accused Nos.1 and 2 not guilty for the offences U/s.379 of IPC and Sec.3 of P.D.P.P. Act and

Section 21 (1) of M.M.D.R. Act and they are acquitted U/Sec.248 (1) of Cr.P.C.

The bail bonds of the accused shall stands cancelled subjected to Sec.437-A of

Cr.P.C. The MO.1 Eicher Jumbo Van B.No.AP.29.U.9415 given towards interim custody to its owner holds good and shall retain with him absolutely after expiry of appeal time.

12.REMARKS : -Nil-

FAC: I ADDL. JUDL. FIRST CLASS MAGISTRATE, BODHAN.

SRI V.ESHWARAIAH [JMFC]

1 CC.No.7 of 2015

:: FAIR COPY ::

IN THE COURT OF THE I ADDL. JUDICIAL MAGISTRATE OF FIRST

CLASS, AT :: BODHAN

PRESENT:- SRI V.ESHWARAIAH,

JUDICIAL FIRST CLASS MAGISTRATE, BODHAN,

FAC: I ADDL. JUDICIAL FIRST CLASS MAGISTRATE, BODHAN.

THURSDAY, THIS THE 3 rd DAY OF OCTOBER, 2019

C.C.No.07 of 2015

BETWEEN:

The State of Telangana Rep. by the PS Kotagiri.

.. COMPLAINANT

AND

1. Thotawar Saru Bai W/o Late Govind Rao, age 64 yrs, M.Kapu, R/o. Thotawargally of Degloor Tq of Nanded District of Maharashtra State.

2. Thotawar Balaji Govind Rao S/o Late Govind Rao, age 30 years, M.Kapu, R/o. Thotawaragally of Degloor Tq of Nanded Dist. of Maharashtra State.

3. Thotawar Rajasree D/o Late Govind Rao, age 31 yrs, M.Kapu, R/o. Thotawaragally of Degloor Tq of Nanded Dist. of Maharashtra State.

4. Puram Veeranna S/o Gangaram, age 75 yrs, M.Kapu, R/o. Kunj Eklar of Mukhed Tq of Nanded District, Maharashtra State.

.. ACCUSED NOs.1 TO 4

This case coming before me on 25-09-2019 for final hearing in the presence of the learned Sr. APPO, for the complainant and of Sri T.Rajendranath Jadav, the learned Advocate for the accused and the matter having stood over till this day for consideration, this court delivered the following:-

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

1.The then Sub Inspector of Police, P.S. Kotagiri filed the charge sheet in

Crime No.201 of 2014 for the offence punishable U/s.498-A of IPC against the accused Nos.1 to 4.

2.The brief allegations in the charge sheet are as follows:-

That on 07.02.2014, at 7.15 p.m., the defacto complainant Sri Gandhapu

Vittal filed a police report in which he stating that 9 years back, the marriage of his

SRI V.ESHWARAIAH [JMFC] 2 CC.No.7 of 2015 elder daughter Surekha was solemnized with one Thota Sandeep, who is the resident of Degloor, Nanded District, Maharashtra State. At the time of her marriage, he presented dowry, household articles to his son-in-law, thereafter, his son-in-law addicted to consume liquor, due to which, his son-in-law died after 6 months of their marriage. After the death of his son-in-law, the accused Nos.1 to

4. who are the mother-in-law, brother-in-law, sister-in-law and the brother of the accused No.1 respectively, necked his daughter out from their house. Panchayaths were held in this regard for 4 times, but the accused Nos.1 to 4 did not heed the requests of the elders and also demanded Rs.1,00,000/- as additional dowry by stating that they spend huge amount for the treatment of Sandeep when he was hospitalized and denied to take his daughter and they also picked up quarrel alleging that his daughter is barren women. Basing on the contents of the above complaint, the LW5-S.M.Basheer Ahmed, the SI of Police, Kotagiri PS has registered this case in Cr.No.201/2014, U/s.498-A of IPC and took up the investigation. During the course of the investigation, the LW5 examined and recorded the statements of the LW1 at PS and Lws 2 to 4 i.e. Thota Surekha,

Smt.Gandhapu Bashavva and Gandhapu Nagabhushan respectively, at Old

Pothangal village. On 26.12.2014, notices U/s.41-A of Cr.P.C. served to all the accused persons and they have complied with the terms of notice. After completion of the investigation, he laid the charge sheet against the accused Nos.1 to 4 for the offence U/s.498-A of IPC. Hence, the charge sheet.

3.This Court took cognizance for the offence U/s.498-A of IPC against the accused Nos.1 to 4 on 03.01.2015. After appearance of the accused Nos.1 to 4, the copies of the documents are furnished to them as required U/Sec.207 Cr.P.C and when they were examined U/Sec.239 of Cr.P.C. for which the accused persons pleaded not guilty and claimed to be tried for the offence U/s.498-A of IPC.

SRI V.ESHWARAIAH [JMFC] 3 CC.No.7 of 2015

Hence, the charge was framed for the aforesaid offence and the contents were read over and explained to the accused Nos.1 to 4.

4.In order to bring home the guilt of the accused Nos.1 to 4, the prosecution examined the PWs 1 to 4 and the Exs.P1 and P2 are marked.

5.After evidence is closed, the accused Nos.1 to 4 were examined U/s.313

Cr.P.C, explaining the incriminating material evidence appeared against them in the prosecution evidence, for which, the accused denied the incriminating evidence as being false and reported no defence evidence.

6.Heard, the arguments from both sides and perused the case record.

7.Now the point for determination is:-

Whether the prosecution proved its case beyond reasonable doubts for the offence U/s.498-A of IPC against the accused Nos.1 to 4?

8. POINT:- In order to prove its case, the prosecution examined and relied upon the oral evidence of PWs 1 to 4. The PW1-Gandhapu Vittal, who is the complainant and father of victim in this case, the PW2-Thota Surekha, who is the victim and daughter of the PW1, the PW3-Smt.Gandhapu Bashavva, who is mother of victim and the PW4-S.M.Basheer Ahmed, the S.I. of Police.

9.In order to prove the case of the prosecution for the offence punishable

U/s.498-A of the IPC, the prosecution has to prove the following essential ingredients:

I. any willful conduct which is of such of a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

II. Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful

SRI V.ESHWARAIAH [JMFC] 4 CC.No.7 of 2015 demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

10.For proving the offence punishable U/s.498-A of the IPC, the PW2 must make allegation of harassment to the extent as to coerce her to meet any unlawful demand of dowry or any willful conduct on part of the accused persons of such nature as is likely to drive that woman to commit suicide or to cause grave injury or danger to life.

11.To prove the prosecution case, the PW1-G.Vittal deposed that PW2-

T.Surekha is his daughter and her marriage was solemnized in the year 2006 with

T.Sanjeev at Pothangal village as per their caste customs and they gave

Rs.1,50,000/- cash, one and half tula gold and other household articles to his son- in-law towards dowry and after the marriage, his daughter joined the society of her husband at Degloor village and they lived happily for about two years. Thereafter, his son-in-law used to beat his daughter in a drunken condition for additional dowry of Rs.1,00,000/- and after two years, his son-in-law sent away his daughter to their house and one Shanker, who is ZPTC member, Vittlal, who is Surpanch of

Pothangal and Gangaram Patel conducted a panchayath at their house in Pothangal village to resolve the dispute between his daughter and son-in-law and they advised their son-in-law to look after his daughter, for which he agreed and thereafter, his son-in-law took his daughter with him to his house. Thereafter, the accused Nos.1 to 4 sent away his daughter and after two years, his son-in-law died and he lodged Ex.P1 complaint with the police.

12.In his cross-examination of PW-1, he admitted that his daughter approached the Tahsil Office, Degloor and then, approached the Court for partition of the land and he also admitted that he had not mentioned in Ex.P1 about the

SRI V.ESHWARAIAH [JMFC] 5 CC.No.7 of 2015 panchayath conducted before the Sarpanch and ZPTC and after two years of the death of his son-in-law, he filed this complaint against the accused Nos.1 to 4.

13.The PW2-Surekha, who is the victim, deposed that in the year 2006, her marriage was solemnized with one T.Sanjeev at Pothangal village as per their caste customs and after the marriage, she joined the society of her husband at Degloor village and they lived happily for about two or three months and thereafter, he used to beat her in a drunken condition for additional dowry of Rs.1,00,000/- and after six months, he sent her to her parent’s house. One Shanker, who is ZPTC member,

Vittlal, who is Sarpanch of Pothangal and Gangaram Patel conducted a panchayat at their house at Pothangal village to resolve the dispute between them and they advised her husband Sandeep to take back, he took her to his house and again, he used to beat in a drunken condition for additional dowry and all the accused instigated her husband Sandeep in demanding her additional dowry and thereafter, 4 or 5 panchayaths were held at their house at Pothangal village and in all panchayaths, her father PW1 expressed his inability to pay Rs.1,00,000/-, at last they sent her away in January, 2012. She further deposed that she came to know the illness of her husband, herself, her parents and 10 other persons of their village went to Lotus Hospital, Nanded and her mother-in-law and her relatives demanded her to go back from the hospital. In the month of May, 2012, her husband died and she attended his cremation and expressed her desire to stay back at his house, but the family members of her husband asked her to go out. Thereafter, she returned to her parents house in Pothangal and her uncle P.Shanker, who is ZPTC of Kotagiri

Mandal asked the uncle of Sandeep as to how she should live and a panchayath was conducted at Pothangal village in the presence of her and one Govind, who is related to her husband and in that panchayath, Govind agreed to give one acer

SRI V.ESHWARAIAH [JMFC] 6 CC.No.7 of 2015 agricultural land to her and thereafter, he failed to fulfill his promise and thereafter, she along with PW1 lodged the complaint with he police.

14.In her cross-examination, she stated that she filed this case, for partition of the property, which is in the name of her husband and she does not know if the accused No.3 filed a case against her. She also admitted that she filed a partition suit at Degloor against the accused Nos.1 to 4 and the Tahsildar, Degloor passed the orders in her favour. She denied the other suggestions put by the defence counsel.

15.The PW3-G.Basavva, who is the wife of PW1 and mother of PW2, deposed that about 13 years ago, PW2’s marriage was solemnized with one

Sandeep in Pothangal village as per their caste customs and at the time of marriage, they gave Rs.1,50,000/- cash, 10 tulas gold and other household articles towards dowry and after the marriage, PW2 joined the society of her husband Sandeep in

Degloor village and lived happily for one month, after that, Sandeep started beating her for additional dowry in a drunken condition, due to which, they took back PW2 at their house and after 6 years, Sandeep died due to excess consuming of liquor. She further deposed that after which, she does not know anything about the case, the PW4-S.M.Basheer Ahmed, the then S.I. of Police, deposed that on 07.02.2014, at 7.15 p.m. PW1 came to the PS and lodged the complaint before him and basing on it, he registered a case in Cr.No.201/2014, U/s.498-A of IPC and issued Ex.P2 FIR to all concerned, examined and recorded the statement of PW1 in

PS and thereafter, he visited Old Pothangal village, examined and recorded the statements of Pws 2 and 3 and G.Nagabushanam and on 26.12.2014, he issued the notices U/s.41-A Cr.P.C to the accused Nos.1 to 4, who complied the same, as such they were not arrested and after completion of the investigation, he laid the charge sheet. The evidence of Pw-4 shows the manner of the investigation

SRI V.ESHWARAIAH [JMFC] 7 CC.No.7 of 2015

16.In his cross-examination, he admitted that this case is not against the husband of PW1 and after his expiry, PW1 lodged this complaint, he also not examined any person from Degloor vilage, where the in-law’s place of PW1. He denied the other suggestions put by the defence counsel.

17.The evidence of the PWs 1 to 3 shows that the marriage of the PW2 was solemnized with one Sandeep, who is the son of the accused No.1, but no evidence against the accused Nos.1 to 4 for demand of additional dowry and harassment of physical and mental. The evidence of Pws 1 to 3 clearly discloses that the harassment made by the husband of PW2 only, but not in the hands of the accused

Nos.1 to 4. The PW2 deposed in her chief-examination that all the accused instigated her husband Sandeep for additional dowry, but the said fact did not disclose by her parents i.e. Pws 1 and 3 nor in Ex.P-1 nor in 161 of Cr.P.C

Statement. In the absence of this material evidence, this Court cannot come to a conclusion that the accused persons have harassed the PW2 for want of additional dowry. No specific incriminating evidence deposed by the PWs 1 to 3 demanded

additional dowry by the accused Nos.1 to 4. This Court found that there is no

Occassions in the evidence of PW-2 available against the accused Nos.1 to 4, except the evidence of PW4, who is the Investigating Officer and whose evidence is procedural in nature of investigation. The PW-1 clearly admitted that she filed

Civil and Criminal cases for property only.

18. In view of the above reasons, this Court is of the considered opinion that the prosecution has failed to establish its case beyond reasonable doubts for the offence punishable U/s.498-A of the IPC against the accused Nos.1 to 4, hence, they are entitled for acquittal and the point is answered against the prosecution and in favour of the accused persons.

SRI V.ESHWARAIAH [JMFC] 8 CC.No.7 of 2015

19.In the result, this Court found the accused Nos.1 to 4 are not guilty for the offence U/s.498-A of IPC and they are acquitted Under Section 248 (1) of Cr.P.C.

The bail bonds of the accused persons shall stands canceled subject to the Sec.437-

A of Cr.P.C, for a period of six months. The unmarked case property if any, shall be destroyed after the appeal time is over.

Typed to my dictation, corrected and pronounced by me in the open Court on this the 3rd day of October, 2019.

FAC: I ADDL. JUDL. FIRST CLASS MAGISTRATE, BODHAN.

APPENDIX OF EVIDENCE

(WITNESSES EXAMINED ON BEHALF OF)

FOR PROSECUTION: FOR ACCUSED:

PW1:Gandhapu Vittal.Defacto complainant & - None - father of the victim.

PW2:Thota Surekha.Victim & father of PW1.

PW3:Smt.Gandhapu Bashavva.Witness & mother of victim.

PW4:S.M.Basheer Ahmed, Investigating Officer. SI of Police.

EXHIBITS MARKED

FOR PROSECUTION:FOR ACCUSED:

Ex.P1: Complaint.- Nil - Ex.P2: First Information Report.

MATERIAL OBJECTS

FOR PROSECUTION: FOR ACCUSED:

- Nil -- Nil -

FAC: I ADDL. JUDL. FIRST CLASS MAGISTRATE, BODHAN.

SRI V.ESHWARAIAH [JMFC] 9 CC.No.7 of 2015

: CALENDAR AND JUDGMENT ::

IN THE COURT OF THE I ADDL. JUDL. MAGISTRATE OF FIRST

CLASS : AT :: BODHAN

C.C. No.7 OF 2015

1. Complainant: SI of Police, P.S. Kotagiri.

2. Cr.No. & Nature of Offence : Cr.No.201/2014, U/s.498-A of IPC.

3. Name of the accused :

1) Thotawar Saru Bai W/o Late Govind Rao, age 64 yrs, M.Kapu, R/o. Thotawargally of Degloor Tq of Nanded District of Maharashtra State.

2) Thotawar Balaji Govind Rao S/o Late Govind Rao, age 30 years, M.Kapu, R/o. Thotawaragally of Degloor Tq of Nanded Dist. of Maharashtra State.

3) Thotawar Rajasree D/o Late Govind Rao, age 31 yrs, M.Kapu, R/o. Thotawaragally of Degloor Tq of Nanded Dist. of Maharashtra State.

4) Puram Veeranna S/o Gangaram, age 75 yrs, M.Kapu, R/o. Kunj Eklar of Mukhed Tq of Nanded District, Maharashtra State.

D A T E S:

4.OFFENCE3 years prior to 07.12.2014.

5.COMPLAINT07.12.2014.

6.APPREHENSION OF ACCUSED26.12.2014.

7.COMMENCEMENT OF TRIAL02.02.2017.

8.CLOSURE OF TRIAL27.02.2019.

9.JUDGMENT03.10.2019.

10.PLEA OF THE ACCUSEDNot Guilty.

11.SENTENCE OR ORDER:In the result, this Court found the accused Nos.1 to 4 are not guilty for the offence U/s.498-A of IPC and they are acquitted Under Section 248 (1) of Cr.P.C. The bail bonds of the accused persons shall stands canceled subject to the Sec.437-A of Cr.P.C, for a period of six months. The unmarked case property if any, shall be destroyed after the appeal time is over.

12.REMARKS : -Nil-

FAC: I ADDL. JUDL. FIRST CLASS MAGISTRATE, BODHAN.

SRI V.ESHWARAIAH [JMFC]