Sri V.S.S.Srinivasa Sarma

IN THE COURT OF THE XIII ADDITIONAL DISTRICT & SESSIONS

JUDGE, (FTC) VIJAYAWADA.

Present: V.S.S.Srinivasa Sarma,

Judge, Special Court for Trial and Disposal of Commercial Disputes,

Vijayawada

FAC XIII Additional District & Sessions Judge, Vijayawada.

Friday, this the 8 th day of September, 2023

Criminal Appeal No.185/2016

(Appeal against the Calendar and Judgment, dt.26.05.2016 in C.C.No.132/2012 on the file of I Special Magistrate, Vijayawada) 1Appeal is preferred against theI Special Magistrate, Vijayawada judgment of which Court 2Case Number in the Lower CourtCalendar Case No.132/2012 3Name and Description of the Neelam Begum, W/o Basha, Muslim, Appellant/Accusedaged 54 years, Doctor, Resident of Near Siddardha College, Mooghalrajpuram, Vijayawada.

4Name and Description of the 1) HDFC Bank Limited, represented Respondent/ Complainant by it’s Assistant Manager, Retail Asset Division, Authorized Signatory Myneni Sethu Madhav, D.No.40-1-4/ 2, Valluri Complex, M.G.Road, Vijayawada.

2) The State represented by the

Additional Public Prosecutor,

Vijayawada.

5Crime Number & Police Station-- 6The Sentence and Law, which was The accused was found guilty for the imposed in the Lower Courtoffence under Section 138 of N.I.Act and she was convicted under Section 255(2) Cr.P.C and sentenced to pay Fine of Rs.53,500-00. In default of payment of Fine, she was directed to suffer S.I for six months. Out of fine amount the complainant is entitled to Rs.48,500.00 as compensation under Section 357(1)(b) Cr.P.C.

7Whether Reversed/ Confirmed/ Confirmed: Modified/ If modified, the In the result, the Criminal Appeal modification OrderNo.185/2016 is dismissed confirming the Judgment, dated 26.05.2016 in C.C No.132/2012 on the file of I Special 2

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Magistrate, Vijayawada and as such,

the Accused Neelam Begum shall pay Fine of Rs.53,500-00 within One Month from the date of this Judgment. In default of payment of Fine within the said period, she shall surrender herself before the Trail Court for serving the default sentence. On deposit/recovery of the Fine, the Complainant Bank is entitled to Rs.48,500.00 as compensation under Section 357(1)(b) Cr.P.C.

8Dates of : 17.06.2016

1. Presentation of Appeal

2. Filing of Appeal (Registration) 17.06.2016

3. On which date the Appellant/ 18.06.2016 Accused made appearance consequent to notice issued by the Court 01.09.2023

4.Hearing

5.Judgment 08.09.2023

This Appeal came up on 01.09.2023 for final hearing before me in the presence of Sri Naqeeb Ahmed, Counsel for the Appellant/ Accused; and Sri K.Raja Sekhar, Advocate for the 1st Respondent/Complainant; and Sri Y.Pulla Reddy, Additional Public Prosecutor representing the 2nd Respondent/ Prosecution, and the appeal having stood over for consideration till this day, this Court made the following:

J U D G M E N T

The Appellant Neelam Begum was the Accused in C.C No.132/2012. The 1st Respondent HDFC Bank was the Complainant in C.C No.132/2012.

2. The I Special Magistrate’s Court, Vijayawada, vide its Judgment dt.26.05.2016 found the Accused Neelam Begum guilty for the offence under

Section 138 of Negotiable Instruments Act, 1881 and it convicted the Accused

Neelam Begum under Section 255(2) Code of Criminal Procedure 1973 (Cr.P.C).

On 26.05.2016, it sentenced the accused to pay Fine of Rs.53,500-00. In default of payment of Fine, she was directed to suffer Simple Imprisonment for six months.

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Out of fine amount the complainant is entitled to Rs.48,500.00 as compensation under Sec.357(1)(b) Cr.P.C.

3. Aggrieved by such Judgment dt.26.05.2016, the Appellant/Accused

Neelam Begum filed this Appeal. Before the appeal is considered, it is necessary to consider the case of the parties in C.C.No.132/2012.

Brief Facts of the Case of the Complainant:

4. The complainant HDFC Bank has its branch at Valluri Complex,

M.G.Road, Vijayawada. The accused Neelam Begum approached the Bank seeking for personal loan and the Bank sanctioned loan of Rs.2,40,000.00 on 23.11.2007 and Account No.12379451 was assigned. The accused Neelam

Begum executed necessary documents and she has to pay the loan amount in 36

Equated Monthly Installments @ Rs.5,652/-. The accused Neelam Begum paid 14 installments and she committed default of three installments by 13.4.2009.

When the debt of the accused Neelam Begam was Rs.28,368.00, and on foreclosure of account, the outstanding debt would be Rs.1,78,371.00, the accused Neelam Begum issued a cheque bearing No.486241 drawn on HDFC

Bank, Labbipeta dated 13.4.2009 for Rs.26,757.00. When the said cheque was presented for collection, it was dishonoured with an endorsement ‘funds insufficient’ on 13.4.2009. Then on 15.4.2009 the Complainant Bank issued legal notice and it was served on 16.4.2009. Even on receipt of the notice, the accused

Neelam Begum did not pay the cheque amount and thus, the complaint.

Cognizance of the Court

5. As seen from the record, the Trial Court took cognizance of the case for the offence under Section 138 of Negotiable Instruments Act, 1881. After the

Accused Neelam Begum made appearance before the Trial Court, the Trial Court examined her under Section 251 Code of Criminal Procedure, 1973. The

Accused Neelam Begum denied commission of offence under Section 138 of

Negotiable Instruments Act, 1881. She claimed trial of the case.

Evidence on record

6. As seen from the record, during trial the Assistant Manager, Myneni

Sethu Madhav of the Complainant Bank examined as PW.1. In his evidence, 4

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Ex.P.1 to Ex.P.12 were marked. Further, it examined Thota Hari Kumar as P.W.2.

In his evidence, Exs.P.13 to Ex.P.16 were marked. During the cross-examination of D.W.1 Neelam Begum Exs.P.17 to Ex.P.27 were marked. Again when P.W.1

Sethu Madhav was recalled for further evidence, in his evidence Ex.P.28 to

Ex.P.31 were marked. The details are as follows:- Ex.P1-Photostat Copy of Certificate of Incorporation dated 30.8.1994 of the Complainant Bank.

Ex.P2-Photostat copy of Power of Attorney in favour of P.W.1 Sethu Madhav Myneni issued by Mr.Aditya Puri, Managing Director on the strength of Power of attorney given by Mr.Rajesh Kumar, Senior Executive Vice President of the Complainant valid till 31.3.2015 Ex.P3-Certified Copy of Loan Agreement dated 20.10.2007 seeking loan of Rs.2,40,000.00 Ex.P4-Certified Copy of Promissory Note for Rs.2,40,000-00 executed by the accused dated 23.11.2007 Ex.P5-Cheque for Rs.26,757/- issued by the accused dated 13.4.2009 Ex.P6-Cheque Return Memo dated 13.04.2009 Ex.P7-Office copy of Legal Notice dated 15.4.2009 Ex.P8-Certificate of Posting dated 15.4.2009 Ex.P9-Postal Acknowledgement dated 16.4.2009 showing service of Ex.P.7 notice to the accused Neelam Begum.

Ex.P10-Account Copy of the accused dated 13.4.2009 in respect of account no.12379451 showing outstanding debt at three installments at Rs.28,368.00 and total loan due at Rs.1,78,371.68.

Ex.P11-Certified copy of Power of Attorney in favour of by Mr.Aditya Puri, Managing Director on the strength of Power of attorney given by Mr.Rajesh Kumar, Senior Executive Vice President of the Complainant valid till 31.3.2015 Ex.P12-Loan Application Form dated 19.11.2007 of the accused Neelam Begum seeking loan of Rs.2,40,000.00 where the loan account No.12379451 stood noted (post disbursement).

Ex.P13-Statement of account of Neelam Begum relating to Loan Account No.1608333 (loan of Rs.1,64,000.00) (disbursal dated 5.7.2005) Ex.P14-Statement of account of Neelam Begum relating to Loan 5

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Account No.10247114 (loan of Rs.1,64,000.00) (disbursal dated 21.4.2006) Ex.P15 – Statement of account of Neelam Begum relating to Loan Account No.11183155 (loan of Rs.2,40,000.00) (disbursal dated 12.2.2007) Ex.P16 – Statement of account of Neelam Begum relating to Loan Account No.12379451 (loan of Rs.2,40,000.00) (disbursal dated 23.112017) Ex.P17-Photostat Copy of certificate of accused Neelam Begum issued by Andhra University about the Bachelor degree in Ayurvedic Medicine.

Ex.P18-Loan Agreement executed by the accused Neelam Begum on 4.7.2005.

Ex.P19-Personal Loan details of the accused Neelam Begum Dated 30.6.2005 (First Loan) Ex.P 20- Copy of Permanent Account Number details of the accused Neelam Begum Ex.P21-Photostat Copy of Electricity Bill signed by the accused Neelam Begum dated 1.11.2004 Ex.P22-Personal Loan Application Form dated 9.2.2007 (Third loan) Ex.P23-Promissory Note for Rs.2,40,000-00 dated 12.2.2007 executed by the accused Neelam Begum in respect of Third loan.

Ex.P24-Loan Agreement dated 20.4.2006 (Second Loan) Ex.P25-Loan Application Form dated 12.4.2006 submitted by the accused Neelam Begum (Second Loan) Ex.P26-Letter dated 23.11.2007 signed by the accused Neelam Begum stating that outstanding loan of Rs.1,94,368.00 in respect of loan account No.11183155 be adjusted and balance to be credited.

Ex.P27-Letter executed by the accused dated 30.6.2005 about fore closure of earlier loan.

Ex.P28-Account Copy from 13.6.2005 to 3.4.2011 Ex.P29-Account Copy from 20.9.2003 to 22.6.2005 Ex.P30-Account Copy from 1.5.2005 to 29.6.2005 Ex.P31-Loan Payment Data 6

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7. After closure of the evidence of the Complainant Bank, the Accused

Neelam Begum examined herself as D.W.1. In the cross examination of P.W.1

Sethu Madhav Ex.D.1 was marked. In the cross-examination of P.W.2 Hari

Kumar, Ex.D.2 was marked. In the evidence of D.W.1 Neelam Begum Ex.D.3 was marked. The details of Exs.D.1 to D.3 are as follows:- Ex.D1-Served copy of Plaint in O.S.No.964/2010 filed by the Complainant against accused.

Ex.D2-Account copy of the accused Ex.D3-Certified copy of Decree and Judgment in O.S.No.964/2010 on the file of Principal Senior Civil Judge, Vijayawada.

Findings/Judgment of Trial Court

8. After considering the evidence on record; the scope of Section 118;

Section 138 and Section 139 of Negotiable Instruments Act, 1881, the Trial Court found the Accused Neelam Begum guilty for the offence under Section 138 of

Negotiable Instruments Act, 1881 and as such, the Accused Neelam Begum was convicted under Section 255 (2) Cr.P.C for the offence under Section 138 of

Negotiable Instruments Act, 1881.

Grounds of Appeal

9. The Accused Neelam Begum filed the present appeal questioning the above Judgment dt.26.5.2016 both on facts and law. As seen from the record, the

Accused Neelam Begum had questioned the legality of the Judgment on several grounds interalia that the Judgment of the Trial Court was contrary to law, weight of evidence and probabilities of the case.

that the Trial Court did not properly consider the evidence on record.

that the Trial court ought to have examined that when the accused Neelam Begum committed default of three installments i.e., Rs.5652/- x 3, it would be Rs.16,956/- but it was improbable to issue a cheque for Rs.28,368.00.

there is no evidence to show disbursement of loan of Rs.2,40,000.00.

the Trial Court ought not to have consider that non-reply to the legal notice was fatal to the case set up by the accused 7

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Arguments

10. The Counsel for Appellant/Accused Neelam Begum and the Counsel for the Respondent/Complainant had submitted oral arguments. Counsel for appellant had relied on the some judgments, which this Court would refer at appropriate time.

Point (s) for consideration

11. Considering the contents of the complaint, the evidence on record both oral and documentary in nature, the Judgment dt.26.5.2016 of the Trial Court, the

Grounds of Appeal and the submissions of the learned Counsels for the

Appellant/Accused and the Respondent/Complainant, this Court has to examine.

“Whether there are any justified grounds to set aside or modify the Judgment dt.26.5.2016 of the I Special Magistrate Court, Vijayawada”?

Or to put it otherwise “Whether the Complainant HDFC Bank made out a case of Section 138 of Negotiable Instruments Act, 1881 against the Accused Neelam Begum, which warranted conviction”?

12. In order to examine the above aspect, the Court has to examine the entire evidence, if required, led by the parties before the Trial Court and the legal aspects of Sec.138 of Negotiable Instruments Act. Section 138 of Negotiable

Instruments Act, 1881 reads as follows:

Section 138 of the Negotiable Instruments Act, 1881

Sec.138 Dishonour of cheque for insufficiency, etc., of funds in the account. — Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- 8

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(a)the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b)the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c)the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation:— For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.

13. In a case under Section 138 of Negotiable Instruments Act, 1881, the

Complainant has to lead prima facie evidence suggesting that the Accused

Neelam Begum issued the cheque in discharge of legally enforceable debt. Once, the Complainant Bank discharges the initial burden, the presumption under

Section 139 of Negotiable Instruments Act, 1881 would come into play and the

Accused Neelam Begum has to rebut it in the manner known to law. The Accused

Neelam Begum need not rebut it beyond reasonable doubt but it would be suffice if she can lead evidence to show that the Cheque was never issued in discharge of any legally enforceable debt. The degree of proof required to substantiate the plea of the Accused Neelam Begum is like the degree of proof required in Civil Cases i.e., preponderance of probabilities but it is not the proof beyond reasonable doubt.

14. In a case under Section 138 of Negotiable Instruments Act, 1881, the

Complainant HDFC Bank has to prove the following:

Existence of legally enforceable debt.

Accused issuing the cheque in discharge of such legally enforceable debt.

Presentation of cheque for collection within its period of validity.

Dishonor of cheque on one of the grounds which invite an offence under Sec.138 of Negotiable Instruments Act. Issuance of legal notice under Sec.138 of Negotiable Instruments Act.

Filing of complaint before the jurisdictional Court within the time stipulated by law.

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Presentation of Cheque; its dishonor; the issuance of legal notice under

Section 138 of Negotiable Instruments Act and its service.

15. As seen from the record, it is the case of the Complainant Bank that the accused Neelam Begum availed personal loan of Rs.2,40,000.00 on 23.11.2017 vide Account No.12379451 and she agreed to repay the loan in 36 Equated

Monthly Installments at the rate of Rs.5,652/- and as on 13.4.2009 the accused

Neelam Begum paid 14 installments and she committed default of 3 installments, and thus, she was liable to pay Rs.28,368.00 and as such, she issued Cheque bearing No.486241 drawn on HDFC bank dated 13.4.2009 for Rs.26,757.00.

There was some discrepancy as to the actual amount disbursed and the actual installment but the outstanding debt as well as the issuance of cheque were not in dispute. During trial P.W.1 Sethu Madhav had clarified it. As far as presentation of cheque, its dishonor, the issuance of legal notice and its service are concerned, the details of the debt are not required to be considered. So, the above aspects are considered subject to consideration of the aspect of the debt.

16. During the course of trial of the case, the Bank examined P.W.1 Sethu

Madhav. He gave evidence of those facts. Further, in his evidence he filed the impugned Cheque as Ex.P.5. It is the case of the Complainant Bank that when the said Ex.P5 Cheque was presented for collection, it was returned dishonoured vide memo dated 13.4.2009 with an endorsement ‘funds insufficient’ and as such, the Complainant Bank issued a Legal notice on 15.4.2009 through

Registered Post and that it was served on 16.4.2009.

17. As seen from the record, in his evidence, P.W.1 Sethu Madhav had exhibited the dishonoured Cheque as Ex.P.5; the Cheque Returned Memo as

Ex.P.6; the Office Copy of the Legal Notice as Ex.P.7; the Postal Receipt showing dispatch of Ex.P.7 to the accused Neelam Begam as Ex.P.8 and the

Postal Acknowledgement showing service of Ex.P.7 on the accused as Ex.P.9.

The accused Neelam begam had not denied the presentation of Ex.P.5 Cheque and its dishonor. Similarly, the accused Neelam Begam had never denied service of Ex.P.7 Legal notice. Thus, the presentation of the cheque, and its dishonor; the issuance of legal notice and its service on the accused Neelam Begam stands proved.

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18. As seen, the Complainant HDFC Bank filed the complaint on 30.05.2009. Thus, it is evident that the Complainant Bank had presented the complaint before the proper Court complying the provisions of Sec.138 of

Negotiable Instruments Act, 1881. So, all the above aspects stood proved.

Existence of Legally enforceable debt and issuance of Cheque in respect of

such legally enforceable debt.

19. As seen from the record, it is the case of the Complainant that the accused Neelam Begum availed personal loan of Rs.2,40,000.00 on 23.11.2017 vide Account No.12379451 and she agreed to repay the loan in 36 Equated

Monthly Installments at the rate of Rs.5,652/- and as on 13.4.2009 the accused

Neelam Begam paid 14 installments and she committed default of 3 installments and as such, she was liable to pay Rs.28,368.00 and that then she issued Ex.P5

Cheque bearing No.486241 drawn on HDFC Bank dated 13.4.2009 for

Rs.26,757.00. However the Complainant Bank through P.W.1 Sethu Madhav had clarified the discrepancy, by filing additional affidavit, which this Court will consider.

Authority of P.W.1 Sethu Madhav to represent the Complainant Bank

20. During the course of trial of the case, P.W.1 Sethu Madhav gave evidence of those facts. He filed Certificate of Incorporation of the Bank as

Ex.P.1 and the Power of Attorney issued in his favour by Aditya Puri as Ex.P.2.

He also filed the Power of Attorney issued in the name of Aditya Puri as Ex.P.11.

The Counsel for the accused had cross-examined PW1 Sethu Madhav on various aspects of the power and authority of PW1 Sethu Madav to represent and give evidence on behalf of the Bank. Considering the evidence of PW1 Sethu Madhav and exhibits like Ex.P.1, Ex.P.2 and Ex.P.11, it is evident that the PW1 Sethu

Madhav was duly authorized to represent the Complainant Bank give evidence.

Thus, this Issue need not be further deliberated. At any rate, the accused Neelam

Begam did not raise it as one of the grounds of appeal.

Present Debt and base for the issuance of Ex.P5 Cheque

21. As noted above, in his evidence, PW1 Sethu Madhav had referred above Ex.P.5 to Ex.P.10. Further, P.W.1 Sethu Madhav had filed the Certified 11

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copy of the Loan Application dated 19.11.2007 of the accused Neelam Begum seeking loan of Rs.2,40,000.00 as Ex.P.12; the Certified copy of the Loan

Agreement dated 23.11.2007 executed by the accused Neelam Begum as Ex.P.3 and the Certified copy of the Promissory Note dated 23.11.2007 executed by the accused Neelam Begum for Rs.2,40,000.00 as Ex.P.4.

22. Further, he filed Statement of Account dated 13.4.2009 as Ex.P.10 in respect of Loan Account No.12379451. The Complainant Bank also filed

Ex.P.26 Letter dated 23.11.2017 where-under the accused Neelam Begam had sought for closure of earlier loan No.11183155 of Rs.1,94,368.00 and disburse the balance amount. The initial cross-examination of PW1 Sethu Madhav shows that the accused Neelam Begam had denied the loan transaction dated 23.11.2007. PW1 Sethu Madhav was questioned on several aspects of the present loan as well as the past loans.

23. When the loan itself was denied and when it was borne on record that the accused Neelam Begam had availed several loans, the Complainant Bank had marked documents relating to the other loans through the accused Neelam Begum i.e., cross-examination of DW1 Neelam Begam as Exs.P.17 to P.27. Other documents i.e., Exs.P.28 to P.31 were marked recalling P.W.1 Sethu Madhav.

Similarly, in the evidence of P.W.2 Hari Kumar, the Bank had filed the copies of previous Loan Accounts as Ex.P.13 to Ex.P.16.

24. A detailed discussion of the previous loan transactions is not necessary but the above exhibits on record proved that the accused Neelam Begum availed loans thrice prior availing the loan on 23.11.2017 vide Account No.12379451.

This Court would limit the discussion to the present loan transaction and the accused Neelam Begum issuing Ex.P.5 Cheque in respect of this loan transaction.

25. As seen from record, while cross-examining P.W.1 Sethu Madhav and

P.W.2 Hari Kumar, the counsel for the accused had questioned them on several aspects suggesting as if there was no loan transaction itself. But when the cross examination of D.W.1 Neelam Begum is considered, she admitted that the signatures on various loan agreements relating to previous loan transactions. The accused Neelam Begam had tried to take advantage of lack of some material 12

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particulars in the complaint about the present loan transaction which relate to the installment and the disbursement.

26. When the Complainant Bank noticed that there was some discrepancy about the description of the loan transaction in the complaint, after the evidence of the Bank and the accused, the Complainant Bank had filed additional affidavit of P.W.1 Sethu Madhav on 12.4.2016. In such evidence only, Ex.P.28 to P31 were marked. In Para No.6 of the said affidavit, P.W.1 Sethu Madhav had categorically mentioned that the Bank issued loan of Rs.2,40,000.00 on 23.11.2007 vide

Account No.12379451 and that it had disbursed Rs.44,001.00 only because it had deducted Rs.849.00 towards processing fee and Rs.194368.00 towards previous outstanding loan. He also gave evidence the E.M.I was Rs.8,919.00 and that the loan period commenced from 7.12.2007 and it was till 7.11.2010. He also gave evidence that the accused Neelam Begam had paid 14 E.M.Is and she committed default of three installments as on 13.4.2009, and then she issued cheque for

Rs.26,757.00. So, when this evidence is read, it would be evident that the Bank had clarified the discrepancy found in the complainant. Material aspects were not changed but the ambiguity as to the disbursal of actual loan and installments were clarified.

27. The record shows that the counsel for the accused had cross examined

P.W.1 Sethu Madhav based on such additional affidavit. As seen from the cross examination, the accused Neelam Begam had not questioned about those aspects in chief examination. Several other aspects regarding previous loan transactions and the installments paid in respect of such loan transactions were questioned, which have no bearing to the present case. In the cross examination, it was elicited that in the complaint the E.M.I was mentioned as Rs.5,629.00 and if that be three installments would not come to a debt of Rs.25,369.00. It should be noted that the Complainant Bank had clarified the discrepancy that arose in the complaint.

28. Now after considering the evidence of P.W.1 Sethu Madhav, P.W.2 Hari

Kumari and the exhibits like Ex.P.11 Loan Application, Ex.P.3 Loan Agreement and Ex.P.4 Promissory note and Ex.P.26 Letter of the accused, it can be said that 13

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the complainant Bank had proved that the accused Neelam Begum had availed loan of Rs.2,40,000.00 on 23.11.2017. It is the specific case of the Complainant that the accused Neelam Begam had committed default in payment of loan dated 23.11.2017 after paying 14 installments and that when the due was of three installments, which was about Rs.28,368.00, the accused issued Ex.P.5 Cheque for Rs.26,757.00. The accused Neelam Begum did not deny the fact of payment of installments. It is also not the case of the accused Neelam Begum that she discharged the debt. Even though the accused Neelam Begum denied availment of loan on 23.11.2017, the documents like Exs.P.18, P.19, P.22, P.23, P.24, P.25 and P.26 would explicit the fact that she availed successive loans and while availing loan on a later date, she was seeking for closure of the previous loan from out of the loan amount. Ex.P.26 Letter would explicit the fact of availment of loan dated 23.11.2017 and so also, the set off of outstanding debt of the third loan from the sanctioned loan.

29. As noted above, in the cross examination of D.W.1 Neelam Begum, she was admitting her signatures on all the loan documents. Therefore, the Bank is relieved of the legal burden to prove the documents. Therefore, it would not be suffice for the accused Neelam Begam to deny the loan transaction. As noted above, the Compalinant Bank issued Ex.P.7 Legal notice before it filed the case and the accused Neelam Begum did not deny the loan transaction. Just because, the statements of accounts filed by the Complainant Bank were not incompliance of Sec. 65-B of Indian Evidence Act, 1872, the accused cannot escape the rigor of

Sec.138 of N.I.Act.

Statements of Accounts

30. As noted above, the Complainant Bank had filed the copies of statement of account relating to the loan dated 23.11.2017 vide Loan Account

No.12379451 as Ex.P.10 and the previous loans as Exs.P.13 to P.16 and P.28 to

P.31. Certainly, such documents did not comply the provisions of Sec.65-B of

Indian Evidence Act, 1872 and therefore, those documents have to be discarded from consideration. As seen, the accused Neelam Begum did not raise any objection when such documents were marked but the objection being a legal objection, it can be considered even in this appeal. Even if these statements of accounts are discarded from consideration, yet the loan transaction stands proved.

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Therefore, the accused Neelam Begum cannot contend that there never existed any legally enforceable debt and or that she never issued a cheque in discharge of legally enforceable debt.

31. At this juncture, it may not be out of place to refer to the argument of the counsel for the accused that the civil suit in O.S.No.964/2010 filed based on this loan agreement having been dismissed, the accused should have acquittal has no merited consideration.

32. In the instant case, the accused Neelam Begum got marked the served copy of the Plaint in O.S.No.964/2010 as Ex.D.1 and the certified copy of the

Decree and Judgment in O.S.No.964/2010 on the file of Prl.Senior Civil Judge,

Vijayawada as Ex.D.2. Ex.D.2 shows that the suit was dismissed. When the cross examination of the accused Neelam Begum is considered, it is evident that she denied knowledge about the Complainant Bank filing an appeal in A.S.No.4/2014 against the Judgment in O.S.No.964/2010. Though there is no record of the result of the A.S.No.4/2014, it must be noted that at the time of arguing this appeal, the counsel for the accused Neelam Begum filed the order of the Hon’ble High Court in C.M.A.No.461/2009 dated 14.7.2023 whereby the Hon’ble High Court had set aside the order in A.S.No.4/2014. It can be understood that the A.S.No.4/2014 was allowed and the suit was remanded to the Trial Court. The Order shows that the Trial Court had dismissed the suit stating that the complainant Bank failed to substantiate the entries in the account copy and it did not follow the procedure contemplated under Sec.65-B of Indian Evidence Act, 1872. So, when C.M.A is allowed, the Hon’ble High Court affirmed the order of the Trial Court. Thus, the suit in O.S.No.964/2010 stands dismissed. It might be a fact that the suit based on statements of accounts could not be decreed for not complying with Sec.65-B of the Indian Evidence Act, 1872. But, the suit in O.S.No.964/2010 was never dismissed on the ground that there never existed debt. Therefore, the dismissal of suit in O.S.No.964/2010 has no bearing on this case under Sec.138 of N.I.Act.

33. As far as this case is concerned, the Court has to observe whether there existed legally enforceable debt as on the date of issuance of cheque and whether the accused had issued the cheque in discharge of such debt. Viewed from such 15

Crl.A.No.185/2016, dt.08.09.2023.

XIII ADSJ Court, Vijayawada.

angle, the dismissal of suit in O.S.No.964/2010 cannot secure acquittal to the accused in this case.

34. Considering the above material on record, it can never be said that the accused had rebutted the presumptions of Sec.118 of N.I.Act leave aside the presumption of Sec.139 of N.I.Act. Thus, when the accused Neelam Begum was unable to rebut the presumption of Sec. 139 of N.I.Act, she is liable for consequence for the dishonor of cheque.

35. Before parting with the judgment, this Court would consider the judgments relied by the counsel for the accused. In the case of Praveen Mehta Vrs

Vishal Jyothi CRM-A-1997-MA 2015 dated 20.5.2022 Punjab & Haryana High

Court, the respondent (accused) took a defence of misuse of a cheque obtained for security. The Court held that when the signature is admitted, it would not be sufficient to convict the accused unless the other ingredients of Sec.138 of

N.I.Act are proved. In Santhi Vrs Meri Sherley Crl.A.No.996/2011 dated 30.6.2011, the Kerala High Court had drawn a distinction about drawing of cheque and the issuance of cheque in discharge of legally enforceable debt. These two judgments cannot come to the rescue of the accused. The accused Neelam

Begum never stated as to when she had parted Ex.P5 Cheque. In the absence of it, even if a cheque is issued as a ‘security’ for the future loan, when there was default and when the cheque is filled for outstanding debt only, it would partake the character of the issuance of cheque for legally enforceable debt. Refer:

Sripati Singh Vrs State of Jharkhand Criminal Appeal Nos. 1269, 1270 of 2021and Sunil Todi Vrs State of Gujarat Criminal Appeal No.1446 of 2021. In fact even in a prior case of Sampelly Satyanarayana Rao Vrs Indian

Renewable Energy Development Agency Limited2016 SCC 954, decided on

September 19 2016, the Apex Court held that when cheque is issued for future debt, it would become a cheque issued in discharge of legally enforceable debt.

36. The counsel for the appellant/accused had also relied upon the judgments in the cases of Vijay Vrs Laxman and another Crl.A.No.261/2013

dated 7.2.2013 of Apex Court and Chandrasekhara Goswamy and others Vrs

Gowhati Bank Limited AIR 1967 SC 1058. The first judgment is not applicable and the second judgment is relating to a civil suit. The counsel also relied upon 16

Crl.A.No.185/2016, dt.08.09.2023.

XIII ADSJ Court, Vijayawada.

the judgment in the case of Hamid Binesa and another Vrs. State of A.P. 1999 (4)

ALD 327 and it relates to admission of primary evidence and secondary evidence. Even if the statements of accounts are discarded yet the debt stands proved. Further, the counsel had relied upon the judgment in the case of

H.Siddiqui (D) by L.R Vrs A.Ramalingam. The said decision is not applicable to the present case at all.

37. Considering the evidence on record, when the Judgment dt.26.05.2016 in C.C.No.132/2012 of the Trial Court is read in between the lines, it would be evident that the Trial Court had examined the case in proper perspective and it found the Accused Neelam Begum guilty for the offence under Section 138 of

N.I. Act, 1881 and there are no merits to set-aside such a Judgment. Thus, the appeal would fail. Hence, the Accused Neelam Begum is liable for the consequences of the prosecution under Sec.138 of Negotiable Instruments Act, 1881.

Result::

38. In the result, the Criminal Appeal No.185/2017 is dismissed confirming the Judgment, dated 26.05.2016 in C.C.No.132/2012 on the file of I Special

Magistrate, Vijayawada and as such, the Accused Neelam Begum shall pay Fine of

Rs.53,500-00 within One Month from the date of this Judgment. In default of payment of Fine within the said period, she shall surrender herself before the Trail

Court for serving the default sentence. On deposit/recovery of the Fine, the

Complainant Bank is entitled to Rs.48,500.00 as compensation under Section 357(1)(b) Cr.P.C.

Typed to my dictation by the Stenographer, corrected and pronounced by me in the Open Court, on this the 8th day of September, 2023.

Sd/- V.S.S.Srinivasa Sarma,

Special Court for Trial and Disposal of Commercial Disputes, Vijayawada. FAC XIII Additional District &

Sessions Judge, Vijayawada.

17

Crl.A.No.185/2016, dt.08.09.2023.

XIII ADSJ Court, Vijayawada. Copy submitted to:

The Registrar (Judicial), Hon’ble High Court of Andhra Pradesh at Amaravathi, Nelapadu, Guntur District.

Copies to:

1.The I Special Magistrate, Vijayawada.

2.State represented by the Public Prosecutor.

3.Appellant/Accused Neelam Begum

1

IN THE COURT OF THE SENIOR CIVIL JUDGE :: AVANIGADDA 

Present: Sri V.S.S.Srinivasa Sarma Prl.Senior Civil Judge, Machilipatnam FAC: Senior Civil Judge, Avanigadda

Monday, this the 24th day of April 2017

I.P No.11/2013

Between:­ Chintala Ram Prasad, S/o.late Manikyala Rao, Hindu, aged about 41 years, Business and Properties, resident of Mutyalampadu, S.N.Puram, Vijayawada, Krishna District.

…..Petitioner.

And

1. Yeleti Venkateswara Rao, late.Mahalakshmaiah, Hindu, aged about 41 years, Business, residence at Door No.4­9­1, Machilipatnam Mandal, Nelakurru Sivar, Vadagoiah, Krishna District.

2. Yeleti Sudheer Babu, S/o.Nagendram, Hindu, aged about 24 years, residence at Door No.1­28, Machilipatnam Mandal, Nelakurru Sivar, Vadagoiah, Krishna District.

3. Yeleti Vani, D/o.Nagendram, Hindu, aged about 22 years, Student, residence at Door No.1­28, Machilipatnam Mandal, Nelakurru Sivar, Vadagoiah, Krishna District.

.....Respondents.

This petition came up on 07.04.2017 before me for final hearing in the presence of Sri.M.D.Prabhakar, Advocate for the petitioner and of Sri.E.Lakshmi Narayana, Advocate for the respondent No.1 and Sri.S.R.Rama Prasad, Advocate for the respondent No.2 and No.3 and upon hearing and considering the material on record and as the petition stood over till this day for consideration, this Court delivered the following:

O R D E R

This petition is filed under Sec.9 of Provincial Insolvency Act 1920 seeking  to adjudicate the respondent No.1 as an insolvent and  consequently, to set aside the sale deed dt.11.04.2012 executed by the 1st respondent in favour of the 2nd respondent vide document No.371/2012 of SRO., Challapalli; and the sale deed dt.11.04.2012 executed by the 1st respondent in favour of the 3rd respondent vide document No.372/2012 of SRO., Challapalli 2  to vest the petition schedule property with the Official Receiver, Krishna for administration and for distribution to the body of General Creditors. 

2. The petitioner­Ram Prasad averred that on 11.08.2011 the 1st respondent borrowed an amount of Rs.2,25,000/­ executing promissory note promising to repay the same with interest at 12% per annum. He also averred that on 03.06.2012 the wife of the 1st respondent issued a cheque bearing No.313076 drawn on Andhra

Bank, Chinnapuram Branch, Bandar for Rs.2,25,000/­. But, it was dishonored and as such he filed a case under Sec.138 of NI Act. He also averred that he filed a civil suit against the 1st respondent and that while the matters stood thus, the 1st respondent had alienated the schedule property to the 2nd respondent and the 3rd respondent vide document No.371/2012 and No.372/2012 on 11.04.2012 with an intention to avoid his debt as well as defraud the debtors and that such transaction is a fraudulent transaction. Hence, he sought to declare the 1st respondent as an Insolvent and consequently, annul the sale deeds executed by the 1st respondent in favour of 2nd respondent and 3rd respondent on 11.04.2012.

3. On receipt of notice, the respondents made appearance. The respondents filed counter. The 1st respondent contended that one

Sujatha, his cousin maintained Chit and that he was member of Chit for Rs.1,00,000/­ and that when he sought for Rs.30,000/­, she obtained his signature on NJ stamp worth Rs.100/­ and one blank promissory note and that he paid such amount. He contended that the said Sujatha misappropriated the Chit amount and when he questioned her, she fabricated the promissory note and she made the petitioner to file this case. He contended that he sold away the property to the 2nd respondent and the 3rd respondent and that they are in possession in such property and that he did not commit any act of insolvency and that the petition is liable to be dismissed.

3

4. During the enquiry of this petition, the petitioner­Ram Prasad examined himself as PW.1. He examined Sujatha as PW.2. He got marked Ex.P1 to Ex.P3. After the evidence of the petitioner, the 2nd respondent examined himself as RW.1. Later, he examined Y.Vani as

RW.2 and A.Venkateswara Rao as RW.3. He got marked Ex.R1 to

Ex.R4. 

5. Heard the counsels on record. The counsel for the respondents relied on the ratio of the cases of

1) Gadiraju Sathyavathi Vs Jampana Venkata Sathyanarayana and others reported in 2004 ALD Page 376 DB.

2) Batchu Srinivasa Rao Vs Yarramsetti Saraswathamma and others reported in 2011 (4) ALD Page 119.

3) Dhandamudi Chakradhara Rao and another Vs.Pidikiti Koteswara Rao and another reported in 196 (3) ALT Page 34

Points for consideration:

 Whether, the respondent No.1 did commit any acts of insolvency

and

 Whether, the 1st respondent had sold the schedule property to the 2nd respondent and the 3rd respondent on 11.04.2012 vide document No.371/2012 and No.372/2012 SRO., Challapalli with an oblique and fraudulent intention to defraud the petitioner and other creditors and 

6. Before I consider the evidence on record, I need to examine whether the petitioner had satisfied the ingredients of Insolvency Act to declare the 1st respondent as an insolvent. Before I do such an exercise, it is necessary to extract the provisions of Sec.6 and Sec.9 of

Provincial Insolvency Act. Sec.6 of the Act deals the various circumstances in which an act of an individual would cloth him in the provisions of the Insolvency Act.

4

Section 9 of the Act reads as follows:­

Conditions on which creditor may petition:­ (1) A creditor shall not be entitled to present an insolvency petition against a debtor unless­­­

(a) the debt owing by the debtor to the creditor, or, if two or more creditors join in the petition, the aggregate amount of debts owing to such creditors, amounts to five hundred rupees and

(b) the debt is a liquidated sum payable either immediately or at some certain future time; and

(c) the act of insolvency on which the petition is grounded has occurred within three months before the presentation of the petition.

Provided that where the said period of three months referred to in clause (c) expires on a day when the Court is closed, the insolvency petition may be presented on the day on which the Court re­opens).

(2) If the petitioning creditor is a secured creditor, he shall in his petition either state that he is willing to relinquish his security for the benefit of the creditors in the event of the debtor being adjudged insolvent, or give an estimate of the value of the security. In the latter case, he may be admitted as a petitioning creditor to the extent of the balance of the debt due to him after deducting the value as estimated in the same way as if he were an unsecured creditor.

7. So, when the debts of the debtor exceeds Rs.500/­ and if he had any property and if he had committed an act of Insolvency, then the petition should be presented within a period of three months. As seen from the record, this petition was filed on 09.07.2012. The petitioners are questioning the sale deed dt.11.04.2012 executed by the 1st respondent in favour of the 2nd respondent and the 3rd respondent in respect of the schedule property. Admittedly, the petition was filed within 90 days from the date of alleged sale and therefore, the petition is within time.

8. Considering Sec.6 and Sec.9 of Insolvency Act, it will become incumbent on the part of Ram Prasad to prove that the 1st respondent­

Venkateswara Rao had committed an act of Insolvency. Precisely for 5 the said reason only, the petitioner­Ram Prasad examined himself as

PW.1. He filed an affidavit under Order 18 Rule 4 of CPC reiterating the contents of petition. In his evidence, he deposed as if the 1st respondent had borrowed an amount of Rs.2,25,000/­ on 11.08.2011 and that when he did not repay the amount, he filed the suit in O.S

No.937/2012 on the file of VI Addl.Senior Civil Judge, Machilipatnam and that he obtained a decree dt.29.10.2014 as Ex.P3. He deposed that in order to avoid his debt and in order to defraud the others, the 1st respondent transferred the schedule properties to the 2nd respondent as well as the 3rd respondent vide document No.371/2012 and No.372/2012 dt.11.04.2012. He sought to declare the 1st respondent as an Insolvent. Later, he examined D.Sujatha as PW.2 and she gave evidence that she was attestor of promissory note dt.11.08.2011 and that under the promissory note dt.11.08.2011, the 1st respondent had borrowed an amount of Rs.2,25,000/­ from the petitioner­Ram Prasad. The counsel for the 1st respondent had conducted cross­examination of PW.1­Ram Prasad and PW.2­Sujatha.

In such cross­examination, he questioned much about the loan transaction dt.11.08.2011. He suggested as if the 1st respondent never borrowed any loan on 11.08.2011. He suggested as if the 1st respondent and his son sold the 'B' schedule property to the 2nd respondent and the 3rd respondent to discharge of their debts. He admitted that the respondent No.2 and No.3 are in possession of B' schedule property since execution of Ex.P1 and Ex.P2 Sale deeds. He denied knowledge that the 1st respondent possessed a house bearing

Door No.4­28 worth about Rs.4,00,000/­ at Gollapalem Village.

Similarly, he denied knowledge that he had a Tata Ace Magic vehicle and a two wheeler i.e., Hero Honda Passion worth Rs.60,000/­. He denied that the Court has no territorial jurisdiction to try the suit. In her cross­examination, PW.2­Sujatha denied that the signature of the 1st respondent was obtained on blank stamp paper and that the 1st 6 respondent never borrowed loan in his presence. She admitted that after the 1st respondent borrowed an amount from the petitioner, the 1st respondent and she developed disputes. She admitted that the 1st respondent has Ac.02.00 cents of land at Vadagoyya. She admitted that the 1st respondent had a man of seven seater and a Bike. 

9. As seen from the record, the 2nd respondent­Sudheer Babu examined himself as RW.1. He filed an affidavit under Order 18 Rule 4 of CPC which was almost similar to the contents of the counter. He claimed as if he had bonafide purchaser of the schedule property. In his cross­examination he admitted that, in the Ex.P1­Sale deed dt.11.04.2012, it was mentioned as if the 1st respondent is the absolute owner and as such, there was no requirement to implead his son as an executant. He denied that he has no financial capacity to purchase the schedule property. He denied that in order to avoid the debt of the petitioner, the 1st respondent had nominally executed the sale deed.

10. Later the 3rd respondent­Vani also gave similar evidence. She gave evidence that the 1st respondent­Venkateswara Rao owns house bearing Door No.3­31 in Vadagoyyi in Ac.00.05 cents of land apart from Tata Magic vehicle bearing No.TV VA 0416. She also deposed that the 1st respondent earns Rs.1,000/­ per day. She averred that the 1st respondent and his son executed sale deed on 14.04.2012 on receipt of due consideration. She filed Ex.R1­Receipt dt.01.08.2014 and Ex.R2­Certificate dt.26.06.2015 to show that she is in possession of the schedule property. In her cross­examination she denied that the 1st respondent has no other property except schedule property.

11. Later the respondent No.2 and No.3 had examined

A.Venkateswara Rao, Senior Assistant, RTO Office, Gudivada as RW.3.

He gave evidence that the 1st respondent­Venkateswara Rao owns vehicle bearing No.AP16 TVA 0416 which is evident vide Ex.R4 Form­ 7

24. As seen from the record the petitioner did not conduct cross­ examination of RW.3­Venkateswara Rao and hence his evidence should be considered as true and correct.

12. It is specific case of the petitioner­Ram Prasad that the 1st respondent­Venkateswara Rao borrowed an amount of Rs.2,25,000/­ on 11.08.2012 executing a promissory note. It is his contention that when he failed to pay the amount, he filed a suit in O.S No.937/2012 on the file of VI Addl.Senior Civil Judge, Vijayawada and that he obtained a decree on 29.10.2014 vide Ex.P3. As seen from the record this petition is filed on 09.07.2012 whereas the petitioner­Ram Prasad obtained decree on 29.10.2014.

13. In the case of Gunapati Radha Krishna Reddy v. Cheemala at Vada Venkata Ramana and others reported in 2010 (3) ALD 721 it was held that the debt of the petitioner should have been adjudicated by the date of filing of this petition. In the above referred judgment in para No.6 it was held that there must be adjudication of the debt. Before the Insolvency proceedings are instituted, the adjudication of debt should be in the form of a decree passed by the competent Court of Civil jurisdiction or an unequivocal admission of debt on the part of the respondent/insolvent. The hon'ble High Court was pleased to set out the circumstance under which a debtor can approach the Court seeking to declare him as an insolvent.

Considering Sec.9 of the Act, it was categorically held that before the jurisdiction of the insolvency Court is invoked, there must be the adjudication of the debt or the debt vis­a­vis the proposed insolvent. It was held that it can be in the form of a decree passed by the competent Court of civil jurisdiction or an unequivocal declaration on the part of the proposed insolvent, before the proceedings are instituted. It was further held that “To put it differently, a creditor cannot institute proceedings under Section 9 of the Act, in the absence 8 of any adjudication, as to the debts, or unequivocal admission thereof, by a person proposed to be declared as insolvent”. 

14. So, considering the date of execution of the promissory note i.e., 11.08.2011 and the date of decree 29.10.2014 and so also the date of the presentation of this petition ie., 09.07.2012 and the ratio of the above noted case, when there be no unequivocal admission of the debt and when there be no decree prior filing of the petition, this petition to declare the 1st respondent­Venkateswara Rao as an insolvent is not tenable under law. Hence, on this ground itself it is liable to be dismissed.

15. In the instant case the petitioner­Ram Prasad averred that in order to avoid the debts of the 1st respondent and his debt in particular, the 1st respondent had transferred the schedule properties to the 2nd respondent and the 3rd respondent vide sale deed dt.11.04.2012. He filed the copies of such sale deeds as Ex.A1 and

Ex.A2. But there is nothing on record which suggested that the 1st respondent­Venkateswara Rao had transferred properties with an oblique motive. Infact, in his petition the petitioner­Ram Prasad did not aver that the 1st respondent­Venkateswara Rao had no other means of discharge of his debts. It should be noted that in the cross­ examination of PW.2­Sujatha, she admitted that the 1st respondent owns of Ac.02.00 cents of land at Vadagoyya. She also admitted that he owns a bike as well as a seven seater vehicle. In order to substantiate that the 1st respondent owns seven seater vehicle i.e., Tata

Magic Ace vehicle the 2nd respondent had summoned the officials of

Road Transport Authority by name A.Venkateswara Rao, Senior

Assistant, Gudivada and he gave evidence that the vehicle bearing

No.AP 16 TVA 0416 is in the name of the 1st respondent­Venkateswara

Rao, which is evident vide Ex.R4­Attested copy of Form 24 i.e.,

Certificate of Registration. As noted above the petitioner did not 9 conduct cross­examination of this witness. Therefore, his evidence should be treated to be true. Infact the plea of the 2nd respondent and 3rd respondent that the 1st respondent owns Tata Magic Ace stands proved. So, if necessary it can be sold for realization of decree amount.

Thus, it is not a case where the 1st respondent has disposed all his properties with a view to avoid his debts or defraud his creditors. As noted above, the witness of the petitioner i.e., PW.2­Sujatha had categorically stated that the 1st respondent­Venkateswara Rao owns

Ac.02.00 cents of land at Vadagoyya and it is not the schedule property. Therefore, the alienation of the schedule properties can never be termed as an act of insolvency.

16. It would be proper to consider the ratio of the judgment in the case of Gutta Nirmala Vs Gutta Nageswara Rao and others reported in 2011 (4) ALT 171, where the hon'ble High Court had considered whether sale of property by the debtor in favour of a 3rd party, be it for discharge of debts of one of his creditors, is an act of

Insolvency. The hon'ble High Court had considered the judgments in the case of Pydimarri Venkateswarulu Vs Pydimarri Jalamma AIR 1969 AP 318 and Sanjeeva Reddy Vs Yallappa Reddy AIR 1967 AP

243. It also considered the provisions of clause (c) of Sec.6(1) of

Insolvency Act vis­a­vis Sec.54 of the Act. In the said judgment in Para 22 and Para 23, it held that 

Para 22: In Pydimarri Venkateswarlu, the Court held that wider provisions of Sec.54 of the Act will have to be read in the context of the provisions of Sec.6 (1) (c) of the Act. Since, Sec.6(1) (c) refers to transfer of property alone, the provisions of Sec.54 (1) read in the context of Sec.6(1) (c) must mean every transfer of property in favour of any creditor with a view to giving that creditor a preference over the other creditors, shall, if such person is adjudged as insolvent on the petition presented within three months after the date thereof, be 10 deemed fraudulent and void. The Court held that under Sec.54 of the

Act for the purpose of transfer of property to be void for fraudulent preference, they transfer should be in favour of a creditor.

Para23: Analyzing the provisions of Sec.6 (1) (a) of the Act,

Vidya, J in Pydimarri Venkateswarlu held that to bring a transfer within the provisions of clause (a) of Sec.6 of the Act, there should be an endeavour on the part of debtor to put his property into a course of distribution among his creditors. A transfer in favour of a clause of creditors is not an act of Insolvency because in such a case there is no endeavour to put the property in a course of distribution among the creditors. Vidya,J observed that the transfer in favour of a clause of creditors would not constitute an act of Insolvency within the meaning of Sec.6 (1) (a) of the Act, though may constitute an act of bankruptcy since it would be an attempt to divide the property in a manner different from that which would take place under the bankruptcy law and without the safeguards which that law provides. This Court held that an out and out sale in favour of a 3rd person cannot be transfer for the benefit of creditors, even though such transfer is for the purpose of paying off all the creditors and transferee retains consideration for that purpose. 

In the above case debtor­Nageswara Rao executed a sale deed in favour of Prapurna (3rd party and not a creditor) and the hon'ble High

Court held that it would not constitute a transfer for the benefit of creditors even though such transfer may have been for the purpose of paying off the debt due Nageswara Rao to the State Bank of India or even if it be for the purpose of paying off all the creditors including the insolvency petitioner or even if Nageswara Rao had retained the consideration received under the sale transaction either for himself or for the purpose of paying off all or some of his creditors.

11

17. In the case of Bachu Srinivasa Rao Vs Yarramsetti

Saraswathamma and others reported in 2011 (4) ALD 119, the

hon'ble High Court held that whenever the creditor invokes the

provisions of Sec.6 (1) (a) of the Act, he has to prove that the sale in favour of the 3rd party purchaser by the debtor was with an intention to delay and defeat the creditors. The concept of intention to delay and defeat the creditors, occurs in clause (b) of Sec.6 (1) of the Act. It held that unless the creditor had proved that the debtor had transferred the property in favour of the 3rd party with an intention to delay or defraud the creditors, the act of sale of property to the 3rd party per se cannot be considered as an act of Insolvency. 

18. Considering Section 6 and Section 9 of the Act and so also the ratio of the above noted judgment, when I apply the same to the facts of the case on hand, I need to hold that the petition fails. 

19. In the present case, the petitioner lead evidence to show that the 1st respondent­Venkateswara Rao had alienated the property with an oblique intention to delay or defraud the creditors. Therefore, the act of the 1st respondent in selling the property to the 2nd respondent and or the 3rd respondent cannot be considered as an act of

Insolvency.

20. Further, in the case of Gadiraju Sathyavathi Vs Jampana

Venkata Satya Narayana Raju reported in 2011 (4) ALT 40 (DB), the

hon'ble High Court held that when the petitioner is unable to prove

that the sale deed is devoid of consideration or it is a collusive one or that it was executed with an intent to defraud the creditor, the Court cannot hold the sale deed as invalid and it cannot annul the same. In the instant suit also, there is nothing to suggest that the 1st respondent 12 had executed sale deed in favour of the 2nd respondent and or the 3rd respondent with an oblique intention or malafide intention of avoiding the debts of the petitioner. In the absence of such ulterior object and when the 1st respondent sold the property with an object of discharging debts of some of her creditors or for his own purposes, it can never be said that the sale deed was executed with an intention to defraud the petitioner.

21. For the afore mentioned reasons, I hold that the 1st respondent had not committed an act of Insolvency by selling the schedule property to the 2nd respondent and or the 3rd respondent or to put it otherwise, the petitioner could not prove that the 1st respondent had alienated the schedule property to the 2nd respondent and or the 3rd respondent with an oblique intention of avoiding his debts or defrauding the creditors. Therefore, the petition should fail. 

22. In the result, the petition is dismissed but without costs.

Typed my dictation by Steno, corrected and pronounced by me in open Court, this, the 24th day of April 2017.

Sd/-VSS SRINIVASA SARMA

Principal Senior Civil Judge, Machilipatnam

FAC::Senior Civil Judge, Avanigadda.

Appendix of Evidence

Oral Evidence

For Petitioners For Respondents

PW.1: Chintada Ram PrasadRW.1: Yeleti Sudheer Babu PW.2: D.SujathaRW.2: Yeleti Vani RW.3: A.Venkateswara Rao

Documentary Evidence

For Petitioners

Ex.P1:Certified copy of registered sale deed dt.11.04.2012, No.371/12 Ex.P2: Certified copy of sale deed dt.11.04.2012, dt.372/12 of Sub­ Registrar office, Challapalli Ex.P3: Certified copy of decree dt.29.10.2014 in O.S No.937/12 of VII Addl.Senior Civil Judge, Vijayawada 13

For Respondents

Ex.R1: Tax receipt Ex.R2: Certificate issued by Gram Panchayat Office Ex.R3: Letter dt.03.02.2007 issued by Regional Transport Authority to this Court Ex.R4: Attested copy of Form 24 Certificate of Registration of vehicle bearing No.AP 16 TV AO 416.

Sd/­VSS SRINIVASA SARMA PSCJ, MTM/FAC::SCJ, AVG.

IN THE COURT OF THE XIII ADDITIONAL DISTRICT & SESSIONS

JUDGE, VIJAYAWADA.

Present: V.S.S.Srinivasa Sarma,

Judge, Special Court for Trial and Disposal of Commercial Disputes,

Vijayawada

FAC XIII Additional District & Sessions Judge, Vijayawada.

Tuesday, this the 12th day of September, 2023

Criminal Appeal No.218/2018

(Appeal against the Judgment, dt.10.08.2018 in C.C.No.447/2014 on the file of VI Metropolitan Magistrate, Vijayawada) 1Appeal is preferred against theVI Metropolitan Magistrate, judgment of which CourtVijayawada 2Case Number in the Lower CourtCalendar Case No.447/2014 3Name and Description of the Divi Subba Rao, S/o Adinarayana, Appellant/AccusedHindu, aged about 66 years, Near Water Tank, Vanukuru Village, Penamaluru Mandal, Krishna District.

4Name and Description of the State: Sub-Inspector of police, Respondent/ ComplainantKankipadu Police, Vijayawada City represented by the Additional Public Prosecutor, Metropolitan Sessions

Judge Court Vijayawada.

5Crime Number & Police Station-- 6The Sentence and Law, which was The Accused was convicted under imposed in the Lower CourtSection 255 (2) Cr.P.C for the offence under Section 304-A, 338 of IPC and Sec.134(a) & (b) r/w 187 of M.V.Act and he was sentenced to undergo Simple Imprisonment for a period of one year and also to pay fine of Rs.2000-00 for the offence under Sec. 304-A of IPC. In default of payment of fine he shall suffer simple imprisonment for a period of one month for the said offence. The accused was further sentenced to pay fine of Rs.1,000-00 for the offence under Sec.338 of IPC. In default of payment of fine he shall suffer simple imprisonment for a period of one month for the said offence. The accused was further sentenced to pay 2

Crl.A.No.218/2018, dt.12.09.2023.

XIII ADSJ Court, Vijayawada.

fine of Rs.500-00 for the offence under Sec. 134(a) & (b) r/w 187 of M.V.Act. In default of payment of fine he shall suffer simple imprisonment for a period of one month for the said offence.

7Whether Reversed/ Confirmed/ Reversed :: Modified/ If modified, the modification Order Criminal Appeal is allowed and the Calendar and Judgment dated 10.08.2018 in C.C No.447/2014 on the file of VI Metropolitan Magistrate Court, Vijayawada is set aside and consequently, the appellant/accused Subba Rao is acquitted for the offence under Section 304-A, Sec.338 of IPC and Sec. 134(a) &( b) r/w Sec.187 of M.V.Act. As such the appellant/accused Subba Rao is entitled for refund of Fine amount paid by him, if any.

8Dates of : 30.08.2018

1. Presentation of Appeal

2. Filing of Appeal (Registration) 30.08.2018

3.On which date the 31.08.2018 Appellant/Accused made appearance consequent to notice issued by the Court

4.Hearing 05.09.2023

5.Judgment 12.09.2023 6.

This Appeal came up on 05.09.2023 for final hearing before me in the presence of Sri K.Jaya Ram, Advocate for the Appellant/Accused and Sri Y.Pulla Reddy, Additional Public Prosecutor representing the Respondent/ Prosecution, and the appeal having stood over for consideration till this day, this Court delivered the following:

3

Crl.A.No.218/2018, dt.12.09.2023.

XIII ADSJ Court, Vijayawada.

J U D G M E N T

The Appellant-Subba Rao was the accused in C.C No.447/2014 on the file of

VI Metropolitan Magistrate Court, Vijayawada.

2. The VI Metropolitan Magistrate Court, Vijayawada had conducted trial of the case in C.C No.447/2014 and on 10.08.2018 it had convicted the accused

Subba Rao for the offence under Section 304-A, Section 338 of Indian Penal Code 1860 and Sec.134(a) & (b) r/w Section 187 of Motor Vehicles Act.

3. Aggrieved by such Judgment dt.10.08.2018, the Appellant/Accused

Subba Rao filed this Appeal. Before the appeal is considered, it is necessary to consider the case of the parties in C.C No.447/2014.

Brief Facts of the Case :

4. A brief reference to the facts of the case is required for determination of appeal. On 20.8.2013 at 6.15 P.M., L.W.1 Krishna Prasad, L.W.2 Rama Dasu and one Dharma Rao went for walking towards Kesarinenivaripalem. At 6.45

P.M., they reached transformer at Madduru, the driver of Chaitanya School Van bearing No. AP 16 TB 7183 had hit those persons i.e., L.W.2 Ramadasu and

Dharma Rao. Then Dharma Rao shifted to Time Hospital and L.W.2 Ramadasu was shifted to Kalishavali hospital. At 8.30 P.M., the said Dharma Rao died.

5. On the intimation of Time hospital, Vijayawada and based on Written

Report of L.W.1 Krishna Prasad, the Police registered a case in Crime

No.220/2013 under Sec.304-A and Sec.338 of IPC at 1.30 A.M on 22.08.2013.

L.W.17 K.Venkateswara Rao, Head Constable, Kankipadu had visited the scene of offence in the presence of L.W.9 L.Bujji Babu and L.W.10 T.Arjuna Rao. He prepared Rough Sketch of the scene of offence; he examined witnesses; he got conducted inquest over the dead body of the deceased and he had sent dead body for post-mortem. After obtaining post-mortem report of the deceased Dharma

Rao and the wound certificate of Ramadasu as well as the report of Motor 4

Crl.A.No.218/2018, dt.12.09.2023.

XIII ADSJ Court, Vijayawada.

Vehicle Inspector, on 22.08.2013 he caused arrest of the accused at Kankipadu.

Later after completion of the investigation, the charge sheet was filed.

Cognizance

6. The Trial Court took cognizance for the offences under Section 304-A,

Section 338 of IPC and Sec.134 (a) & (b) r/w Sec.187 of M.V. Act. The accused was examined under Section 251 Cr.P.C for the said offences and the accused

Subba Rao denied commission of offences. The accused claimed trial of the case.

Evidence before the Trail Court

7. During trial of the case the prosecution examined P.W 1 to P.W 7 and it got marked Ex.P.1 to Ex.P.10.

Findings of the Trail Court

8. Considering the evidence on record, the Trial Court held that the prosecution had proved that the accused Subba Rao was the driver of the crime vehicle and that he drove it in a rash and negligent manner and as such, he was caused for the death of Dharma Rao and injuries to Ramadasu. Thus, it recorded conviction.

Grounds of Appeal

9. Aggrieved by such Judgment dated 10.08.2018, the appellant/accused filed the present appeal questioning it on several grounds interalia :

a.that Trial Court did not properly appreciate the evidence on record b.that the Trial Court did not observe that there was no identity of the accused as the driver of the crime vehicle c.that the Trial Court did not consider that the evidence of the prosecution witnesses is the evidence of interested persons and it has no value in the eye of law d.that the Trial Court failed to observe that even though the name of the accused was not in FIR, the prosecution did not make efforts to secure his identity by conducting Test Identification Parade 5

Crl.A.No.218/2018, dt.12.09.2023.

XIII ADSJ Court, Vijayawada.

Arguments

10. Heard the counsel for the appellant/accused and the Additional Public

Prosecutor.

Points for consideration

“Whether the Trial Court was justified in convicting the accused for an

offence under Section 304-A & Section 338 of IPC and Section 134(a) & (b)

r/w Section 187 of M.V.Act?”

To prove it otherwise

1. Whether the prosecution had proved that one Dharma Rao died in an

accident happened on 20.08.2013 involving van bearing No. AP 16 TB 7183?

2. Whether the prosecution had proved that one Ramadasu sustained

injuries in an accident happened on 20.08.2013 involving van bearing No. AP

16 TB 7183?

3. Whether the prosecution had proved that the accused Subba Rao was the driver of the van bearing No. AP 16 TB 7183?

4. Whether the prosecution had proved that the accused Subba Rao drove the crime vehicle either rashly or negligently?

POINT No.1 and No.2:

11. As far as the above facts are concerned, the prosecution had examined

P.W.1 to P.W.7 and it got marked Exs.P.1 to P.10. As noted above, it is the case of the prosecution that while L.W.1/P.W.1 Krishna Prasad, L.W.2/P.W.2 Ramadasu and one Dharma Rao were walking on the road, the Van bearing No.AP 16 TB 7183 driven by the accused had hit L.W.2/P.W.2 Ramadasu and one Dharma Rao.

Soon after the accident, the said Dharma Rao was shifted to Time hospital and

P.W.2 Ramadasu was shifted to Kaleshavali hospital.

12. During trial the defacto complainant Krishna Prasad had given evidence of above facts. P.W.2 Ramadasu had also given evidence in tune with the contents of the report or the charge sheet. P.W.2 Ramadasu stated that he regained consciousness while he was at Kaleshavali hospital. P.W.3 Srinivasa Rao stated that he was one of the inquestdars, when the Police conducted inquest over 6

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XIII ADSJ Court, Vijayawada.

the dead body of the deceased Dharma Rao on 21.08.2013 at 9.00 A.M., at GGH,

Vijayawada. P.W.5 Dr.G.Siva Rami Reddy gave evidence that on 21.08.2013, on the requisition of SHO, Kankipadu, he conducted post-mortem over the dead body of the deceased N.Venkata Dharma Rao and that he issued Ex.P.3 P.M

Certificate. P.W.6 Dr.Sk.Kaleshavali gave evidence that he examined P.W.2

Ramadasu on 22.08.2013 at 4.00 P.M., and he had found a fracture of Pelvis, and then he issued Ex.P.4 Wound Certificate opining that he had a grievous injury.

13. Considering the above evidence and the cross examination of such witnesses, it is evident that the accused Subba Rao had not denied the death of

Dharma Rao. In fact, one of the suggestions to P.W.2 Ramadasu read that ‘ít is true that the crime vehicle had hit us from our backside’. When such information was elicited but when the accident was not denied, it should be deemed as if

Dharma Rao was hit by a vehicle and consequently he died. Thus, death of

Dharma Rao and the involvement of vehicle probably the vehicle bearing No. AP 16 TB 7183 was proved.

14. In so far as the injury of P.W.2 Ramadasu is concerned, it is specific case that soon after the accident he was taken to Kaleshavali hospital. The Wound

Certificate produced before this Court was issued by Rameeza Orthopedic center and incidentally, the doctor is Dr.S.Kaleshavali. So, probability is there that the hospital is referred as Kaleshavali hospital. What is important to make a note is that Ex.P.4 Wound Certificate issued by P.W.6 Dr.S.Kaleshavali and it read that

PW1 Ramdasu was admitted at hospital on 22.08.2013 at 4.00 P.M. It is contradictory to the entire case of the prosecution and therefore, it cannot be said that the prosecution proved that P.W.2 Ramadasu sustained injuries in an accident happened on 20.08.2013 and that soon after the accident, he was shifted to hospital of Sk.Kaleshavali. Infact P.W.6 Sk.Kaleshavali had specifically denied

P.W.2 Ramadasu being admitted in his hospital on 20.08.2023 7

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XIII ADSJ Court, Vijayawada.

15. Considering the above evidence on record, the Point No.1 is answered holding that the prosecution proved the death of Dharma Rao in an accident happened on 20.08.2023 involving vehicle bearing No. AP 16 TB 7183. The

Point No.2 is answered holding that the prosecution is unable to prove that P.W.2

Ramadasu sustained injuries in an accident happened on 20.08.2023 involving vehicle bearing No. AP 16 TB 7183.

Point No.3:

16. It is about the identity of the accused Subba Rao as the driver of the crime vehicle bearing No. AP 16 TB 7183. As noted above, it is the case of the prosecution that the accused Subba Rao was driver of such vehicle and that on 20.08.2013 he drove it in a rash and negligent manner at 6.45 P.M and that he had hit the pedestrians i.e., Dharma Rao and P.W.2 Ramadasu. As per the prosecution, the defacto complainant P.W.1-Krishna Prasad had witnessed the accident.

During trial of the case, P.W.1 Krishna Prasad gave evidence that the accused was the driver of the crime vehicle. However, he admitted that the vehicle did not stop soon after the accident. He admitted that he did not state to the Police that he saw the driver of the crime vehicle and that he can identify the driver of the crime vehicle. He also admitted that he did not furnish the descriptive particulars of the driver of the crime vehicle. Except P.W.1 Krishna Prasad, the prosecution could not tender any evidence of other witness, who had witnessed the accident.

17. As seen from charge sheet, the S.I of Police, Kankipadu mentioned that

L.W.17 K.Venkateswara Rao (P.W.7) caused arrest of the accused on 22.08.2013 at 1.30 P.M at Kankipadu police station. No further details were mentioned in the charge sheet. In his evidence P.W.7 K.Venkateswara Rao, the then Head

Constable stated that on 22.08.2013 the accused Subba Rao had surrendered at the Police Station along with crime vehicle No. AP 16 TB 7183 and then he recorded his statement as found in Ex.P.9. In his cross examination P.W.7

K.Venkateswara Rao had categorically admitted that he did not get conducted any

Test Identification Parade to identify the accused. He admitted that he did not produce the seized materials before the Court. He admitted that he did not 8

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XIII ADSJ Court, Vijayawada.

examine the owner of the vehicle to get the identification of the accused.

18. Now when the evidence on record is considered, P.W.1 Krishna Prasad did not furnish particulars of the accused in his Report and or Sec.161 Cr.P.C statement. P.W.7 Venkateswara Rao had registered the FIR in Cr.No.220/2013 and certainly, by going to the contents of FIR, he was aware of the death of

Dharma Rao and injuries to Ramadasu. Even then, when allegedly the accused had surrendered before him on 22.08.2013, he did not make any attempt to get the identify the accused established through the defacto complainant Krishna

Prasad or P.W.2 Rama Dasu. Leave aside the same, it is not the case of the prosecution that the crime vehicle van bearing No. AP 16 TB 7183 is owned by the accused. According to the Ex.P1 Report itself, the vehicle belongs to Sri

Chaitanya Techno School. Despite it, P.W.7 Venkateswara Rao did not examine the management of Sri Chaitanya Techno School to ascertain the identity of the accused. He had not assigned any reason for not securing information regarding the identity of the accused. Contra, he had obtained a letter/statement from accused vide Ex.P.9 and then he had implicated the accused in this case. The laxity exhibited by the Investigating Officer P.W.7 Venkateswara Rao has to be condemned. Even when there was loss of life because of alleged rash and negligent driving of vehicle by the accused, PW7 Venlateswara Rao did not make any effort to secure the identity of the accused, which was not beyond his reach.

It is an admitted fact when the accused Subba Rao had denied making Ex.P.9

Statement voluntarily and that he was the driver of the crime vehicle, this Court cannot give any credence to Ex.P.9 Statement. Therefore, it has to be held that the prosecution was unable to prove the identity of the accused as the driver of the crime vehicle bearing No.AP 16 TB 7183. Accordingly, this Point for consideration is answered.

Point No.4:

19. As far as this aspect is concerned, the prosecution has to prove that the crime vehicle was driven either rashly or negligently and that it was the accused 9

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XIII ADSJ Court, Vijayawada.

who drove it either rashly or negligently and that such rash or negligent act had contributed for the death of Dharma Rao and or injuries to P.W.2 Ramadasu. Just because an accident happened, it would not mean that the vehicle was plied either rashly or negligently. It is for the prosecution to establish it. Except P.W.1

Krishna Prasad, no one gave evidence that the vehicle was plied either rashly or negligently. The M.V Inspector had examined the crime vehicle but the

Investigating Officer did not take steps to examine the scene of offence through the M.V Inspector. The M.V.Inspector ought to have been directed to examine the scene of offence to ascertain the skid marks/tyre marks, which may indicate that the vehicle was driven either rashly or negligently. In the absence of such evidence, this Point is answered against the prosecution.

Result

20. In the result, the Criminal Appeal is allowed and the Calendar and

Judgment dated 10.08.2018 in C.C No.447/2014 on the file of VI Metropolitan

Magistrate Court, Vijayawada is set aside and consequently, the appellant/accused

Subba Rao is acquitted for the offence under Section 304-A, Section 338 of IPC and Section 134 (a) & ( b) read with Section 187 of M.V.Act. As such, the appellant/accused Subba Rao is entitled for refund of Fine amount paid by him, if any.

Typed to my dictation by the Stenographer of Commercial Court, corrected and pronounced by me in the Open Court, on this the 12th day of September, 2023.

Sd/- V.S.S.Srinivasa Sarma,

Special Court for Trial and Disposal of Commercial Disputes, Vijayawada. FAC XIII Additional District Judge, Vijayawada.

Copy submitted to:

The Registrar (Judicial), Hon’ble High Court of Andhra Pradesh at Amaravathi, Nelapadu, Guntur District. Copies to:

1.The VI Metropolitan Magistrate, Vijayawada.

2.State represented by the Additional Public Prosecutor.

IN THE COURT OF THE XIII ADDITIONAL DISTRICT & SESSIONS

JUDGE, VIJAYAWADA.

Present: V.S.S.Srinivasa Sarma,

Judge, Special Court for Trial and Disposal of Commercial Disputes,

Vijayawada

FAC XIII Additional District & Sessions Judge, Vijayawada.

Wednesday, this the 13th day of September, 2023

Criminal Appeal No.222/2018

(Appeal against the Judgment, dt.20.08.2018 in C.C.No.56/2014 on the file of VI Metropolitan Magistrate, Vijayawada) 1Appeal is preferred against theVI Metropolitan Magistrate, judgment of which CourtVijayawada 2Case Number in the Lower CourtCalendar Case No.56/2014 3Name and Description of the Ujjineni Srinivasa Rao, S/o Appellant/AccusedVenkateswara Rao, Hindu, aged 55 years, Punadipadu, Kankipadu Mandal, Krishna District.

4Name and Description of the State: Sub-Inspector of police, Respondent/ ComplainantKankipadu Police, Vijayawada City represented by the Additional Public Prosecutor, Metropolitan Sessions

Judge Court Vijayawada.

5Crime Number & Police Station-- 6The Sentence and Law, which was The Accused was convicted under imposed in the Lower CourtSection 255 (2) Cr.P.C for the offence under Section 304-A, 338 of IPC and he was sentenced to undergo Simple Imprisonment for a period of one year and also to pay fine of Rs.2000-00 for the offence under Sec.304-A of IPC. In default of payment of fine he shall suffer simple imprisonment for a period of one month for the said offence. The accused was further sentenced to pay fine of Rs.500-00 for the offence under Sec. 338 of IPC. In default of payment of fine he shall suffer simple imprisonment for a period of one month for the said offence.

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7Whether Reversed/ Confirmed/ Reversed :: Modified/ If modified, the modification Order Criminal Appeal is allowed and the Calendar and Judgment dated 20.08.2018 in C.C No.56/2014 on the file of VI Metropolitan Magistrate Court, Vijayawada is set aside and consequently, the appellant/accused Srinivasa Rao is acquitted for the offence under Section 304-A and Sec.338 of IPC. As such the appellant/accused Srinivasa Rao is entitled for refund of Fine amount paid by him, if any.

8Dates of : 11.09.2018

1. Presentation of Appeal

2. Filing of Appeal (Registration) 11.09.2018

3.On which date the 12.09.2018 Appellant/Accused made appearance consequent to notice issued by the Court

4.Hearing 06.09.2023

5.Judgment 13.09.2023 6.

This Appeal came up on 06.09.2023 for final hearing before me in the presence of Sri P.Chitti Babu, Advocate for the Appellant/Accused and Sri Y.Pulla Reddy, Additional Public Prosecutor representing the Respondent/ Prosecution, and the appeal having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

The Appellant-Srinivasa Rao was the accused in C.C No.56/2014 on the file of VI Metropolitan Magistrate Court. The VI Metropolitan Magistrate Court

Vijayawada had conducted trial of the case in C.C No.56/2014 and on 20.08.2018 it had convicted the accused Srinivasa Rao for the offence under Section 304-A and Section 338 of Indian Penal Code 1860.

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2. Aggrieved by such Judgment dt.20.08.2018, the Appellant/Accused

Srinivasa Rao filed this Appeal. Before the appeal is considered, it is necessary to consider the case of the parties in C.C No.56/2014.

Brief Facts of the Case :

3. A brief reference of the case is required for determination of appeal. On 17.10.2013 at 11.30 A.M., L.W.1 R.Manoj and Mohammad Habibullah left to

Narayana Olympiad at Moghalrajpuram on their motor cycle bearing No.AP 16

BX 370. At 12.45 P.M., after completion of work, they started return journey to

Vuyyuru. At 1.20 P.M., while they were at a distance of 100 meters to Davuluru

Cross Roads, the Lorry bearing No. AP 16 TU 4216, which was driven rashly and negligently by the accused, had hit on the right side of the motor vehicle. Both fell down and Habibullah died on spot. L.W.1 Manoj shifted to Trust Hospital.

4. On the report of L.W.1 Manoj, L.W.12 B.Gunaram, S.I of Police,

Kankipadu registered the case in Crime No.284/2013 under Section 304-A and

Section 338 of IPC. Later the S.I of Police had visited the scene of offence; he prepared Rough Sketch of the scene of offence; he examined material witnesses; he got conducted inquest over the dead body of the deceased Habibullah and he had sent dead body for post-mortem. After obtaining post-mortem report of the deceased Habibullah and the wound certificate of Manoj as well as the report of

Motor Vehicle Inspector, on 22.10.2013 he caused arrest of the accused at Police

Station Kankipadu. Later after completion of the investigation, the charge sheet was filed.

Cognizance

5. The Trial Court took cognizance for the offences under Section 304-A and Section 338 of IPC . The accused was examined under Section 251 Cr.P.C for the said offences and the accused Srinivasa Rao had denied commission of offences. The accused Srinivasa Rao had claimed trial of the case.

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Evidence before the Trail Court

6. During trial of the case the prosecution examined P.W 1 to PW 6 and it got marked Ex.P.1 to P.8.

Findings of the Trail Court

7. Considering the evidence on record, the Trial Court held that the prosecution had proved that the accused Srinivasa Rao was the driver of the crime vehicle and that he drove it in a rash and negligent manner and as such, he was caused for the death of Habibullah and injuries to Manoj. Thus, it recorded conviction.

Grounds of Appeal

8. Aggrieved by such Judgment dated 20.08.2018, the appellant/accused filed the present appeal questioning it on several grounds interalia :

a.that Trial Court did not properly appreciate the evidence on record b.that the Trial Court did not observe that there was no identity of the accused as the driver of the crime vehicle c.that the Trial Court did not consider that the evidence of the prosecution witnesses is the evidence of interested persons and it has no value in the eye of law d.that the Trial Court failed to observe that even though the name of the accused was not in FIR, the prosecution did not make efforts to secure his identity by conducting Test Identification Parade

Arguments

9. Heard the counsel for the appellant/accused and the Additional Public

Prosecutor.

Points for consideration

“Whether the Trial Court was justified in convicting the accused for an

offence under Section 304-A & Section 338 of IPC?” 5

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To prove it otherwise

1. Whether the prosecution had proved that one Habibullah died in an

accident happened on 17.10.2013 involving Lorry bearing No. AP 16 TU

4216?

2. Whether the prosecution had proved that one Manoj sustained injuries in

an accident happened on 17.10.2013 involving Lorry bearing No. AP 16 TU

4216?

3. Whether the prosecution had proved that the accused Srinivasa Rao was the driver of the Lorry bearing No. AP 16 TU 4216?

4. Whether the prosecution had proved that the accused drove the crime vehicle either rashly or negligently?

POINT No.1 and No.2:

10. As far as the above facts are concerned, the prosecution had examined

P.Ws.1 to P.W.6 and it got marked Exs.P.1 to P.8. As noted above, it is the case of the prosecution that while L.W.1/P.W.1 R.Manoj and Habibullah were travelling on motor cycle bearing No.AP 16 BX 370, the accused driving Lorry bearing

No.AP 16 TU 4216 in a rash and negligent manner and he had hit on the right side of the motor cycle and as such, both fell down. While Habibullah died, P.W.1

Manoj was shifted to Trust hospital.

11. During trial, the defacto complainant Manoj gave evidence of above facts. P.W.2 Mohammad Rahulla is the father of deceased Habibullah. He gave evidence that he was informed over phone that his son Habibullah met with accident and then he went to the place of accident, he found his son Habibullah with injuries in a pool of blood (dead) and then he was shifted to Government

Hospital. P.W.3 Dr. G.Siva Rami Reddy gave evidence that on 18.10.2013, on the requisition of SHO, Kankipadu, he conducted postmortem over the dead body of the deceased Mohammad Habibullah and he issued Ex.P.2 P.M Certificate. P.W.4

Abdul Bari gave evidence that the Police conducted inquest over the dead body of the deceased Habibullah, who died on account of injuries in an accident and that he signed Ex.P.3 Inquest report.

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12. Considering the above evidence and the cross-examination of such witnesses, it is evident that the accused Srinivasa Rao had not denied the death of

Habibullah. However, the counsel for the accused had suggested that the lorry did not hit the motor cycle.

13. In so far as the injury of P.W.1 Manoj, the prosecution did not examine the hospital authorities, where he was treated. The wound certificate of P.W.1

Manoj was filed as Ex.P.8 in the evidence of PW6 B.Guna Ramu. In the absence of examining the doctor, who issued the wound certificate and so also, in the absence of failure of the prosecution to file X-Ray film and report suggesting fracture injuries to P.W.1 Manoj, it can never be said that the prosecution had proved that P.W.1 Manoj sustained injuries in an accident happened on 17.10.2013 involving lorry bearing No. AP 16 TU 4216 and that such injuries were grievous in nature. NO explanation was offered for non-examination of the doctor. Similarly, even though the death of Habibullah was not denied, the prosecution was unable to place evidence suggesting the involvement of lorry bearing No. AP 16 TU 4216. Accordingly, the Points framed for consideration are answered.

Point No.4:

14. As far as this aspect is concerned, the prosecution has to prove that the crime vehicle was driven either rashly or negligently and that it was the accused, who drove it either rashly or negligently and that such rash or negligent act had contributed for the death of Habibullah and or injuries to P.W.1 Manoj. Just because an accident happened, it would not mean that the vehicle was plied either rashly or negligently. It is for the prosecution to establish it. Except P.W.1 Manoj, no one gave evidence that the vehicle was plied either rashly or negligently. The

M.V Inspector had examined the crime vehicle but the Investigating Officer did not take steps to examine the scene of offence through the M.V Inspector. The

M.V Inspector ought to have been directed to examine the scene of offence to ascertain the skid marks/tyre marks, which may indicate that the vehicle was 7

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driven either rashly or negligently. When P.W.5 V.S.Kameswara Rao, M.V.I,

Vuyyuru was examined he gave evidence about conducting the test of vehicle at

Police Station only. So, it should be held that there is no concrete evidence suggesting whether, be it accused or other person had driven the lorry bearing No.

AP 16 TU 4216 in a rash and negligent manner and it was the cause for accident.

In the absence of such evidence, this point is answered against the prosecution.

Point No.3:

15. It is regarding the identity of the accused Srinivasa Rao as the driver of the crime vehicle bearing No. AP 16 TU 4216. As noted above, it is the case of the prosecution that the accused was driver of such vehicle and that on 17.10.2013 he drove it in a rash and negligent manner and that he had hit the motor cycle. Such an accident had resulted in the death of Habibulla and injuries to P.W.1 Manoj.

16. As per the prosecution, the defacto complainant P.W.1-Manoj was an eye witness-cum-injured in this case. He gave evidence of the accident and that he can identify the driver of the crime vehicle and that the accused Srinivasa Rao was the driver of the crime vehicle. In his cross examination, he stated that he had no prior acquaintance with the accused. He admitted that he had not given descriptive particulars of the driver of the crime vehicle to the Police. Except

PW1 Manoj, the prosecution could not lead evidence of any other person to establish the identity of the accused.

17. As seen, P.W.6 B.Guna Ramu SI of Police had caused arrest of the accused on 22.10.2013 at Kankipadu Police Station. No further details were mentioned in the charge sheet. In his evidence P.W.6 Guna Ramu stated that on 22.10.2013 at 10.00 A.M., the accused Srinivasa Rao had surrendered before him and that he gave Ex.P.7 Report and as such, he had arrested the accused. P.W.6

Guna Ramu had denied that the accused was not connected with the accident.

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18. As seen from the record, P.W.6 Guna Ramu was aware of the fact that

P.W.1 Manoj was one of the injured in the accident and through him, he can get the identity the accused. He could have done Test Identification Parade in necessary. Leave aside the same, it is not the case of the prosecution that the crime vehicle bearing No. AP 16 TU 4216 is owned by the accused. P.W.6 Guna

Ramu did not secure the details of the owner of the vehicle and he did not examine the owner of the vehicle. As per M.V.I Report, it is evident that one

B.Srinivasa Rao is the owner of the vehicle. Yet why P.W.6 Guna Ramu did not examine the said owner to fix up the identity of the accused was not explained.

Contra, he had obtained a letter/statement from accused vide Ex.P.7 and he had implicated the accused in this case. The laxity exhibited by the Investigating

Officer i.e., P.W.6 Guna Ramu has to be condemned. Even when there was loss of life because of alleged rash and negligent driving of vehicle by the accused, he did not make any effort to secure the identity of the accused, which was not beyond his reach. Therefore, it has to be held that the prosecution was unable to prove the identity of the accused Srinivasa Rao as the driver of the crime vehicle.

19. Before the above point framed for consideration is concluded, it would be apt to refer to the judgment of Hon’ble High Court of A.P. in the case of

Piginaraji Ranga Rao Vrs State of Andhra Pradesh, 2009(1) ALD Crl. 971 AP.

In the said case the Hon’ble High Court held that when there was no possibility for the injured to witness the driver, it is pertinent to hold Test Identification

Parade. No conviction can be recorded based on identity of the accused in the

Court after long lapse of time without his identification at the earliest point of time and without Test Identification Parade. This judgment would squarely apply to the facts of the case. The Investigation Officer P.W.6 Guna Ramu had ample opportunity to get the identity of the accused established soon after his alleged surrender on 22.10.2013. Admittedly, when P.W.1 Manoj was unable to furnish particulars of the accused in the report and when he identified the accused after lapse of three years, the identification has to be doubted. Thus, it should be held that there is no proper evidence suggesting that the accused Srinivasa Rao was 9

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the driver of the crime vehicle as on the date of the accident. Accordingly, this point for consideration is answered.

Result

20. Criminal Appeal is allowed and the Calendar and Judgment dated 20.08.2018 in C.C No.56/2014 on the file of VI Metropolitan Magistrate Court,

Vijayawada is set aside and consequently, the appellant/accused Srinivasa Rao is acquitted for the offence under Section 304-A and Sec.338 of IPC. As such the appellant/accused Srinivasa Rao is entitled for refund of Fine amount paid by him, if any.

Typed to my dictation by the Stenographer of Commercial Court, corrected and pronounced by me in the Open Court, on this the 13th day of September, 2023.

Sd/- V.S.S.Srinivasa Sarma,

Special Court for Trial and Disposal of Commercial Disputes, Vijayawada. FAC XIII Additional District Judge, Vijayawada.

Copy submitted to:

The Registrar (Judicial), Hon’ble High Court of Andhra Pradesh at Amaravathi, Nelapadu, Guntur District.

Copies to:

1.The VI Metropolitan Magistrate, Vijayawada.

2.State represented by the Additional Public Prosecutor.

FORM TO BE APPEARED TO THE FAIR COpy OF THE JUDGMENT IN ACCORDANCE WITH RULE 71 OF CRIMINAL RULES OF PRACTICE IN SESSIONS CASE NO.99/2014 ON THE FILE OF ADDL. ASST. SESSIONS JUDGE'S COURT:: MACHILIPATNAM.

1. Sessions Case No. S.C.No.99/2014

2. Complainant The State represented by the Sub Inspector of Police, KruthivennuPolice Station, Krishna District, Andhra Pradesh.

3. Description of the accused Gutla John Subba Rao, S/o. Late Venkateswara Rao, Aged 25 years, SC/Mala, Kompalli Village, Kruthivennu Mandal, Krishna District.

4. Date of occurrence 11.08.2013 5.Date of complaint 12.08.2013 6.Date of apprehension of accused 13.08.2013

7. Date of committal order 03.03.2014

8. Date of commencement of Trial 15.04.2015

9. Date of close of Trial 21.04.2015 10.Date of sentence or Order 27.04.2015

11. Charges /Sec.498-A & Sec.307 of IPC against the accused.

RESULT:

Accused is present. Judgment pronounced (VSJ) in the Open Court. In the result, the accused is found not guilty for the offences u/Sec.498-A and Sec.307 of IPC and as such, the accused is acquitted u/s.235 (1) of Cr:PC. The Bail Bonds of the accused shall be in force for a period of six months. M.O.1 to M.O.5 shall be destroyed after the lapse of appeal time. Further the unmarked case property, if any, shall also be destroyed after the lapse of appeal time.

EXPLANATION FOR DELAY

On 17.05.2014 the Hon'ble District & Sessions Court, Krishna Machilipatnam had made over this case to Addl. Asst. Sessions Judge's Court, Machilipatnam later on 22.05.2014 this case was received by this Court. The charges were framed against the accused on 04.03.2015. The trial commenced on 15.04.2015 and it was concluded on 21.04.2015. PW.1 to PW.6 were examined and Ex.P1 to Ex.P12 and M.0.1 to M.0.5 were marked. On 27.04.2015 the accused was examined u/s.313(1) (b) of Cr.PC and arguments were heard and on the same day the Judgment was pronounced. Hence, no delay in conducting trial of this case. g o Addl. Asst. Sessions Judge, Mahilipatnam.

Submitted to: The Hon'ble Registrar (Judi.) High cort

of Andhra Pradesh, Hyderabad thiroagh the Diy.No 249

Hon'ble Sessions Judge, Krishna, Machilipgpam.

IN THE COURT

OF THE ADDITIONAL. ASSISTANT SESSIONS JUDGE

MACHILIPATNAM.

Present: V.S.S. Srinivasa Sarma,

Addl. Asst. Sessions Judge. Machilipatnam.

Monday, this the 27th day of April, 2015.

SESSIONS CASE NO.99/2014

BETWEEN:

The State represented by the Sub-Inspector of Police. Kruthivennu Police Station, Krishna

District, Andhra Pradesh.

Complainant.

AND Gutla John Subba Rao, S/o. Late Venkateswra Rao, aged 25 years, SC/Mala, Komallapudi

Village, Kruthivennu Mandal, Krishna District.

Accused. This case came upon 27.04.2015 for fnal hearing before me in the presence of Sri PSuri Babu, Addl.Public -Prosecutor on behalf of the Prosecution and of Sri K.Sai Mohan Rao, Advocate on behalf of the Accused and upon considering the material available on record and having stood over till this day for consideration, this Court

delivered the following:

JUDG MENT

The State represented by the Sub-Inspector of Police, Kruthivennu Police Station filed a charge sheet against the accused in Cr.No.51/2013 alleging that on 11.08.2013 the accused made arn attempt to commit murder/kill LW1-Jhansi Lakshmi by setting her at fire when she was unable to meet his demand of additional dowry and as such, the accused is liable to be punished under Sec. 498-A and Sec.307 of IPC.

Brief facts:

2. The State represented by the Sub-Inspector of Police, Kruthivennu Police Station iled a charge sheet against the accused in Cr.No.51/2013 alleging that the marriage of LW1-Jhansi was performed with the accused Subba Rao on 18.01.2010 and that at the time of marriage the parents of Jhansi gave dowry of Rs.30,000/- and that for one year both of them lead cordial life but thereafter the accused, who got addicted to vices, had harassed LW1-Jhansi for the sake of additional dowry and that he even suspected his character. The SI of Police further alleged that on 11.08.2013 when LW1-Jhansi had been to

Church to offer prayers and returned at 11.00 AM, the accused suspecting her character had poured kerosene and he had lit fire with an intention to kill her. It was alleged that some how she rescued her with injuries to right forçarm, right knee, left knee and left neck 2 and thus, she was taken to a private hospital at Bantumilli. The SI of Police further alle that later W1-Jhansi was shifted to Government Hospital, Machilipatnam and on hospita intimation, the statement of Jhansi Was Trecorded basing on which a case in Cr.No.51/2013 was registered.

3. The Sub-Jnspector of Police Kruthivennu Police Station further alleged that during investigation he examined material Witnesses, he examined the scene of offence. he seized kerosene bottle. half burnt cloths and match box and that he prepared rough sketch. He further alleged that on 13.08.2013, he arrested the accused and on his confession., he seized match box under the cover of confession-cum mediators report and that subsequently he remanded the accused to judicial custody. Later, on receipt of wound certificate of L.WI Jhansi. he fled charge sheet against the accused for the offences punishable u/Sec. 498-A of IPC and Sec307 of IPC.

4. The learned Judicial First Class Magistrate, Bantumilli had taken cognizance for the offences /Sec.49S-A and u/Sec.307 of IPC. Later, as the offence leveled against the accused being u/Sec.307 of IPC, which is an exclusively triable by Court of Sessions, it was committed to the Hon'ble Principal District Court, Machilipatnam /s.209 (a) of Code of Criminal Procedure ( for short "Cr.PC.) serving copies of the case to the accused u/s. 207 of Cr.PC. Subsequently the Hon'ble Principal District and Sessions Judge, Machilipatnam had registered it as Sessions Case No.99/2014 and it was made over to this Court for trial.

5. This Court had framed the charges for the offences i.e., for the offence w Sec.498-A and Sec.307 of IPC against the accused. Such charges were read over and explained to the accused in Telugu, which the accused denied pleading not guilty and he claimed for trial.

6. During the course of the trial of the case, the prosecution examined PW.l to PW.6 and it got marked Ex.Pl to Ex.Pl2 and ir oor marked M.0.l to M.O.5.

Ws.313 (1)(b) of CrPC., and the

7. On 27.04.2015 the accused were examined incriminating evidence appearing aoainsr rhe accused was read over and explained to hinm in Telugu. The accused denied the ineriminaring evidence. He reported no evidence.

8. Heard the counsel for the Prosecutio i.e., Addl. Public Prosecutor and the Counsel

for the accused.

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9. The points for determination are: Whether the prosecution proved the guilt of the accused for the offences /Sec. 498-A and Sec.307 of IPC.

" Whether the prosecution is able to Drove that prior to that on 11.08.2013 the accused being the husband of LW1-Jhansi had harassed either by demanding

additional dowry or suspecting and as Such he committed an offence u/s.498-A of

IPC " Whether the prosecution is able to prove that the on 11.08.2013 at 11.00 AM the accused had voluntarily made an attempt to kill LW1- Jhansi by setting her at fire and thus, he committed an offence u/s.307 of IPC

10. As noted above during the course of the trial of this case, the prosecution has examined PW.1 to PW.6 and it got marked Ex,P1 to Ex.P12 and M.0.1 to M.O.5 in order to prove the guilt of the accused for the offences punishable u/Sec.498-A and Sec.307 of IPC.

In the instant case, the prosecution examined the defacto-complainant G.Jhansi as PW.1. It further examined PParameswra Rao the brother of PW1-Jhasi as PW2; G.Deevamma the sister of Jhansi as PW3; and E.Saraswathi the mother of PW1-Jhansi as PW4. Later it examined J.VVenkateswara Rao, Head-Constable OPPS as PW5 and Sri Abdul Salam forner

SI of Police of Kruthivennu Police Station as PW.6.

11. In his evidence PW.1-G.Jhansi deposed th¡t the accused is her husband and that their marriage was performed in the year 2010 and that they are leading cordial matrimonial life and that on 11.08.2013 she sustained burn injuries when the gas stove bursted. She also deposed as if after sustaining burn injries, she became unconscious and that she never made any statement to Police alleging that the accused made an attempt to kill her. Similarly when the prosecution examined PW2-Parameswara Rao, PW3

G.Devamma and PW4-E.Saraswathi, they also deposed that the accused and PW1-Jhansi are leading cordial matrimonial life and that the accused never made any attempt to kill PW1

Jhansi. Thus, at the request of the Additional Public Prosecutor, this witnesses were declared as hostile witnesses and he was permittea to put questions in the nature of cross examination. In such cross-examination he could not elicit any incriminating evidence except marking the signature of PWN.1-Jhansi statement dt.11.08.2013 as Ex.P1 and Section

Ex.P5. 161 Cr.PC statement of PW.1 to PW4 as Ex.P2

12. Later the prosecution examined the then Head Constable J.VVenkateswara

PWS. He deposed that on 12.08.2013 at 12.45 AM on receipt of Ex.P6 hospital intima he recorded Ex.P7 statement of PW1-Jhansi at hospital and he had sent the same

Kruthivennu Police Station. PW6-ADaul oalam Jormer SI of Police Kruthivennu PS deposed that on receipt of Ex.P7 statement o widnansI along with Ex.P6 hospital intimation. he registered Ex.P8 FIR in Cr.No.51/20ls under Sec.498-A and Sec.307 of IPC. He further deposed that during investigation, he examined PWl to PW4 and that they stated to him as found in Ex.P2 to Ex.P4. He further deposed that along with the mediators by name Yunus and Ch Sinivasa Bao, be visited the scene of offence and after observing it, he prepared

Ex.P9 Observation Report where under he seized MO1-Two liters plastic bottle with kerosene, MO-3 Half burnt langa, MO4- Half burnt silk Voni and MO5-Match sticks. He further deposed that on 13.08.2013, in the presence of the same mediators, he arrested the accused at his house and on his contession-cum mediators report as found in Ex.P9. he seized MO2-Match Box and then he remanded the accused to judicial custody. Lastly he deposed that on receipt of wound certificate of PW1-Jhansi in Ex.P12, he filed charge sheet.

In their cross-examination they denied that the accused never committed any offence and that he was falsely implicated without proper investigation and that MO1 to MO5 were implanted for the purpose of this case.

13. Now, considering the above nature of evidence it should be held that the prosecution was unable to prove the guilt of the accused. The evidence of the prosecution did not meet the charges to convict the accused for any of the offence. Admittedly, PW.1 Jhansi herself had denied the accused making an attempt to kill her. PW1Jhansi had even denied making any report agaisnt the accused. Furthermore, Pw2 to PW.4 also categorically denied the accused making an attempt to kill PW1-Jhansi. PW1 to PW4 deposed as if PW

Jhansi and the accused are leading cordial matrimonial life. Therefore, the evidence of PW.I to PW.4 did not prove the guilt of the accused.

14. As seen from the record. the evidence of PW1 to PW4 is only material. Infact, the evidence of PW5Venkateswara Rao and pwóAbdul Salam should be corroborated by other evidence, before such of their evidence is accepted. Thus, in the absence of such evidence, the evidence of PW.S-J.VVenkateeoro Dao and PW6-Abdul Salam former Sl of Police Kruthivennu would not be sufficient to hold the accused guilty for the above said charges.

Thus. the accused is entitled for acquittal.

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15. In the result, the accused is found not guilty for the offences /Sec.498-A and

Sec.307 of IPC and as such, the accused is acquitted /s.235(1) of CrPC. The Bail Bonds of the accused shall be in force for a period of six months. M.O.1 to M.O.5 shall be destroyed after the lapse of appeal time. Further the unmarked case property if any, shall also be

destroyed after the lapse of appeal time

Dictated to the Outsourcing StenograAhered by him on laptoP. coteted aid

pronounced by me in the Open Court, this th27thlay of April, 2015.

Addl. Asst Sessions Judge, 3

M¿hilipatnam.

APPENDIX OF EVIDENCE

ORAL EVIDENCE

ACCUSED

PROSECUTION

PW.1: Gutla Jhansy PW.2: E.Parameswara Rao PW.3: Gutla Deevanamma ---NIL PW4: E.Saraswathi PW.5: J.VVenkateswara Rao PW.6: Abdul Salam

DOCUMENTARY EVIDENCE

PROSECUTION

Ex.Pl: Signature of PW.1 G.Jhansi Ex.P2: Sec. 161 Cr.PC statement of PW.1-G.Jhasi Ex.P3: Sec. 161 Cr.PC statement of.PW.2-E.Parameswara Rao Ex.P4: Sec.161 Cr.PC statement of PW.3-G.Deevanamma Ex.P5: Sec.161 Cr.PC statement of PW.4-E.Saraswathi Ex.P6: Hospital Intimation Ex.P7: Statement of PW1-Jhansi recorded by HC.No.974 Ex.P8: FIR in Cr.No.51/2013 under Sec.498-A and 307 of IPC Ex.P9: Observation Report Ex.P10:Mediator's Report about seizure of Match Box and Confession Report Ex.Pll: Rough sketch of the scene of offence Ex.P12: Wound certificate

ACCUSED :: NIL

MATERIAL OBJECTS

PROSECUTION ACCUSED

M.0.1: Two liter plastic kerosene bottle --Nil M.O.2: Three Mango's Match Box M.0.3: Half burnt red and gold colour design langa M.O.4: Half burnt colour silk Voni M.0.5: Burnt and unburnt Match sticks

Addl. Asst. $gs1ons Judge,

Maehilipatnam.