Ms V Susmitha

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IN THE COURT OF THE I METROPOLTIAN MAGISTRATE

(MUNICIPAL COURT): HYDERABAD

Present: Smt. VADLURI SUSMITHA I Metropolitan Magistrate (Municipal Court), Hyderabad.

Dated this the 02nd day of January, 2023

CALENDER CASE No. 34 of 2017

Between: The State of Telangana, Represented by Food Safety Officer, Flying Squad, O/o. The Director, Institute of Preventive Medicine, Public Health Labs and Food (Health) Administration, Telangana, Hyderabad. … Complainant

A N D

1. Myneni Chandra Shekar, S/o. Subba Rao, aged 47 years, Managing Partner M/s. Tharuni Super Market, 5-32/4, Malkajgiri, Secunderabad.

2. M/s. Tharuni Super Market, 5-32/4, Malkajgiri, Secunderabad. (Represented by its Managing Partner A1) … A1 and A2

This case is coming before me for final hearing in the presence of Smt.K.Vijaya, learned APP for the complainant/State and Sri.M.Surender, Counsel

for the accused, and having stood over till this day for consideration, this court

delivered the following:

JUDGMENT

1.The complaint filed by the Food Safety Officer, Flying Squad, O/o. The

Director, Institute of Preventive Medicine, Public Health Labs and Food (Health)

Administration, Telangana, Hyderabad against A1 and A2 for the offences under

Sections 3(1)(zz)(iii) and 26(2)(i) of Food Safety and Standards Act, 2006 read with

Regulation 2.3.5 of Food Safety and Standards (Prohibition and Restrictions on

Sales) Regulations, 2011 punishable under Section 59(ii) of the Food Safety and

Standards Act, 2006.

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2.The Complainant Sri.G.Venkateswarlu, Food Safety Officer (PW-1) notified as

Food Safety Officer vide R.C.No.503/FSS-1/2015, dated 10.09.2015 of the Director,

Institute of Preventive Medicine, Public Health Labs and Food (Health)

Administration, Telangana, Hyderabad and notified as Food Safety Officer for entire

State of Telangana through orders R.C.No.701/FSS-1/2015, dated 08.10.2015.

3. The case of the prosecution in nut shell : On 18-03-2016 at about 5:00

P.M., PW-1 with his Office subordinate Sri Mallesh have visited the business premises of M/s. Tharuni Super Market, 5-32/4, Malkajgiri, Secunderabad for inspection. At the time of their visit, A1 was present and claimed himself as

Managing Partner and transcating the business, then PW1 secured the presence of LW2-B.Bala Murali as witness and in their presence PW1 inspected the business premises and found Santhra fruit apart from other fruits and food articles, which are kept for sale for human consumption.

4.On suspicion, PW-1 has purchased 1.6 kgs of Santhra fruit for the purpose of taking the sample and paid Rs.75/- towards its cost and obtained cash receipt.

Then PW1 served Form VA notice to A1 to send the sample to the State Food

Laboratory for analysis and took the acknowledgment. PW1 divided the said sample into four parts and completed the sampling procedure as per the provisions of the Act. After that PW1 drafted the panchanama in presence of accused and witness and obtained the signatures. On 19.03.2016, PW1 sent one part of the sample along with Form VI Memorandum to the Food Analyst, State

Food Laboratory, Hyderabad for analysis. On the same day, other parts of the sample is deposited with the Designated Officer and obtained the acknowledgment.

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5.On 30.03.2016, the Designated Officer has received the Food Analyst report bearing No.1247/2015-16, in that report the Food Analyst opined that the sample contains calcium carbide which is prohibited in ripening of fruits as per

Regulation 2.3.5 of Food Safety and Standards (Prohibition and Restrictions on sales) Regulations, 2011. Hence it is unsafe. After receiving the report, the

Designated Officer has served a notice under Rule 2.4.6(1) along with food analyst report to the accused. The Designated officer has submitted the detailed report to the Commissioner of Food Safety for according sanction for launching the prosecution against the accused person. Basing on the report submitted by the Designated Officer, the Commissioner of Food Safety accorded the sanction to prosecution against accused. Accordingly, PW-1 has filed this present complaint before this court on 10.03.2017.

6.This Court took cognizance of the offence under Sections 3(1)(zz)(iii) and 26(2)(i) of Food Safety and Standards Act, 2006 read with Regulation 2.3.5 of

Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011 punishable under section 59(i) of F.S.S Act-2006 and issued summons to A1 and A2 representing A1. On receipt of summons, accused appeared before this court and copies of documents furnished under section 207 Cr.P.C.

7.The accused was examined under section 251 Cr.P.C for the offences under

Sections 3(1)(zz)(iii) and 26(2)(i) of Food Safety and Standards Act, 2006 read with Regulation 2.3.5 of Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011 punishable under section 59(i) of F.S.S Act-2006 for which the accused pleaded not guilty and claimed to be tried.

8.In order to support its case the prosecution has examined PW-1 and got marked exhibits Ex.P-1 to Ex.P-27.

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9.After closure of the prosecution evidence the accused was examined under section 313 Cr.P.C explaining the incrimating evidence available on recored and denied the same and reported no defence.

10.Heard learned A.P.P for the complainant/state and Sri.M.Surender,

Learned Counsel of accused.

11. Now the point for determination is:

Whether the prosecution has proved the guilt of accused for the

offences under section 3(1)(zz)(iii) and Section 26 (2)(i) of F.S.S Act

2006 read with Regulation 2.3.5 of Food Safety and Standards

(Prohibition and Restrictions on Sales) Regulations, 2011 punishable

under section 59(i) of F.S.S Act-2006 beyond all reasonable doubt?

12.In order to establish the case, the prosecution examined PW-1and exhibits

Ex.P-1 to Ex.P-27 are marked and failed to examine the LW2 before the court.

13.As per the evidence of PW1 on 18.03.2016 at about 5:00 p.m,, he visited the M/s.Taruni Super Market, Malkajgiri, Secunderabad, he inspected the said premises and lifted the sample of Santra fruit in the presence of accused and

LW2.

14.PW1 sent one part of the sample on 19.03.2016 to the food analyst for analysis purpose. After causing analysis food analyst given a report that the sample contains Calcium Carbide, which is prohibited in ripening of fruits as per

Regulation 2.3.5 of Food Safety and Standards (Prohibition and Restrictions on sales) Regulations, 2011.Hence it is unsafe.

15.The evidence of PW1 also revealed that the Designated Officer sent notice to the accused on 06.04.2016 under Rule 2.4.6(i) along with food analyst report.

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The accused did not avail the opportunity. Then the Designated Officer forwarded the detailed report on 30.06.2016 to the Commissioner of Food

Safety for lanuching prosecution against the accused.

16.PW1 evidence further reveals that Commissioner of Food Safety accorded sanction dated 24.08.2016 to prosecute the accused for the alleged offence.

17.Learned APP submitted that PW1 conducted inspection and followed the rules prescribed by the Act and completed the inspection and sampling procedure and further submitted that Food Analyst after causing analysis given his report opining that the said Banana fruit is unsafe basing on the report of

Food Analyst the accused can be convicted.

18.The main contention of the learned counsel for the accused is that the sample containers were not cleaned before the accused and witnesses. He further argued that the sample was placed into containers without cleaning. As per the FSS Act, the sample containers shall be clean, dry and empty.

19.On perusal of evidence of PW1, in his chief he stated that he placed the sample into four separate clean, dry and empty plastic containers. In this connection my attention was drawn to Ex.P12 i.e., panchanama it discloses that it is drafted on 18.03.2016 by the Food Safety Officer (PW1). He drafted the panchanama in a manner he incorporated every aspect from visiting the business premises to completion of the sampling procedure by PW1. Which is the only document has a proof of inspection and sampling procedure was done by the

PW1. On perusing the contents of panchanama which shows that PW1 mentioned as sample was taken in clean, empty and dried plastic containers. On further observation it is shows that PW1 nowhere mentioned in the panchanama that he had cleaned the said plastic containers at the time of inspection or at the

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time of sampling procedure. On observation of panchanama, it clearly shows that

PW1 covered all the aspects involved in the inspection, sampling procedure but

PW1 failed to mentioned the where he had cleaned the sample containers and failed to mention who has cleaned the sample containers. If the PW1 really cleaned the containers at the time of sampling procedure he would have mentioned the cleaniness of containers in his panchanama. PW1 written in panchanama every aspect made by him at the time of sampling procedure. On basing on the statement of PW1 and documentary evidence it is made clear that

PW1 did not cleaned the sample containers before or at the time of sampling procedure. Which is amount to violation of mandatory provision described under the Food Safety and Standards Act.

20.In the instant case on perusal of evidence of PW1, he admitted that the

Designated Officer issued notice to the accused along with food analyst report under Rule 2.4.6(1). Further he admitted that he did not file any acknowledgment as proof of serving of notice on accused person. As admitted by the PW1 no acknowledgment was filed as proof of service of notice on accused person. PW1 in his evidence he deposed that Designated Officer issued notice to the accused person but the PW1 has not filed any proof to show that he send the notice to the accused person. In the absence of any documentary evidence as a proof of sending of such notice is not trustworthy to believe the version of PW1. Nothing is established before the Court to show that the notice was served on the accused person. It is made clear that the mandatory notice was not served on the accused person as such he could not avail the statutory remedy of filing appeal, consenquently accused is deprived of his right to get the sample tested by referral laboratory.

21.The learned counsel for the accused argued that prosecution has failed to examine the LW2 before the court to prove the inspection and sampling

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procedure. On perusal of deposition of PW1, he admitted that he inspected the business premises of PW1 in the presence of LW2. He further admitted that after completion of inspection, he drafted the panchanama and obtained the signatures of witnesses. In this connection reliance has to be placed on Ex.P12 i.e., panchanama dated 18-03-2016 which is admittedly having the signatures of the panch witnesses. As per the evidence of PW1 and Ex.P12 it is evident that

LW2 was very much present at the time of inspection. But in the case on hand, prosecution has failed to examine the LW2 before the court and no explanation given by the prosecution has to why the panch witness was not examined. In the absence of panch witness evidence, the panchanama under the procedure was adopted itself is not proved, in as much as the panch witness was not examined.

This can be goes to the case of the prosecution. Once the panchanama was not proved the entire edifice basing on the inspection and sampling procedure would have no sanctity at all.

22.The learned counsel for accused argued that after causing analysis food analyst given his report in Form-B instead of Form VII-A. He further argued that it is the violation of mandatory provision prescribed the FSS Act. On perusal of

Ex.P19-Food Analyst report, it is disclosed that the report is given on 13.03.2016.

It is further discloses that it is given in Form-B and it is duly signed by Director of

Laboratory. As per Rule 2.3.1(ii) of the Food Safety and Standards (Laboratory and Sample Analysis) Regulations, 2011 and under Rule 2.3.1(2) after testing of analysis the certificate is duly signed by Director of referral food laboratory or the report signed by food analyst shall be supplied forthwith to the sender in

Form-A or Form-B as the case may be. This regulation is inserted by way of corrigendum No.F.No.3/15015/30/2011, Dated 21.12.2011 and Form-A or Form-B are duly appended to the said regulation. This is can’t be said that Ex.P19 is given in Form-B is not valid in the eye of law.

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23.The learned counsel for the accused further argued that as per Section 42(2) and also Section 46(3)(i) of FSS Act, the Food Analyst shall analyse the sample and send his report mentioning the method of sample and name of the method of test used but in the present case food analyst not recorded the method of sampling and not mentioned the name of the method of test used. He further aruged that food analyst violated provisions of FSS Act.

24.On perusal of evidence of PW1, he stated that he sent one part of the sample to the Food Analyst for analysis purpose and after causing of analysis food analyst given his report. In this connection my attention was drawn to

Ex.P19-Food Analyst dated 13.03.2016 which is duly sealed and signed by the food analyst. Which discloses that the food analyst mentioned the method as methods complied by DGHS. It further discloses that he did not mention specific name of the method used by him in the analysis procedure. He simply mentioned the name of the method as methods complied by DGHS. There is nothing before the court to prove that this method is valid and recognized and further when the rule 2.4.2.7 specifically mentioned the recognized methods of analysis i.e.,

AOAC/ISO/PEARSONS/JACOB/IUTAC/FOOD CHEMICALS CODEX/BIX/WOODMEN /WINTON-WINTON/JOSLYN to be used for analysis the sample of food articles and there is no explanation in Ex.P19-report for adopting the method other than the method mentioned in the said rules. Without cogent and convincing explanation it could lead to pick and chose method to suit the prosecution.

25.The learned counsel further argued as per Section 42(3) of FSS Act the

Designated Officer after scruity of report of food analyst, shall decide as to whether the contravention is punishable with imprisonment or fine only, and in case of contravention is punishable with imprisonment, he shall send his recommendation within 14 days to the Commissioner of Food Safety. The learned counsel further argued that the Designated Officer did not followed the procedure prescribed under the FSS Act.

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26.On perusal of evidence of PW1, in his chief he stated that the Food Analyst given his report on 30.03.2016 and Designated Officer submitted detailed report to the Commissioner of Food Safety on 30.06.2016. In this connection I would like to pay attention to Ex.P19 and Ex.P23, these are food analyst report and report forwarded by the Designated Officer which clearly shows that the designated

Officer received the food analyst report on 30.03.2016 and forwarded detailed report on 30.06.2016. The Designated Officer has forwarded detailed report beyond 14 days stipulated period. Here the Designated Officer has took three months period to forward report. By the Designated Officer failed to give any explanation for the delay caused by him in sending the detailed report. It is concluded that the Designated Officer violated the mandatory provision prescribed under the FSS Act.

27.The further contention of the learned counsel for the accused is that the

State Food Laboratory, Nacharam, Hyderabad is not recognized/accredited for testing the sample by the National Accreditation Board for testing and calibration laboratories as contemplated under Section 43 of the Act.

28.In the instant case the State Food Laboratory, Nacharam, Hyderabad issued the report under Ex.P19 on 30.03.2016. There is nothing before the court to establish that there was a accreditation to the said laboratory to conducting the test. Prosecution has failed to produce relevant document to prove that the said laboratories having accreditation. In the absence of any cogent and convincing evidence it cannot be said that the State Food Laboratory has power to conduct the test of the product in question. Prosecution has failed to prove the case beyond the reasonable doubt, the accused is entitled for acquittal.

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29.In the result, A1 and A2 are found not guilty of the offence under Section 3(1)(zz)(iii), 26(2)(i) of Food Safety and Standards Act, 2006 read with Regulations 2.3.5 of Food Safety and Standards (Prohibition and Restrictions of Sales)

Regulations 2011 and accordingly, they are acquitted under Section 255(1) Cr.P.C.

The bail bonds of the accused shall be in force for a period of six months under

Section 437-A Cr.P.C.

Typed by Typist on my dictation, corrected and pronounced by me in the open Court, on this the 02nd day of January, 2023.

Sd/-

I METROPOLITAN MAGISTRATE,

(MUNICIPAL COURT), HYDERABAD.

Appendix of Evidence

Witnesss Examined

For prosection:

1. PW-1 : Sri.P.Murthy Raju, Food Safety Officer, GHMC, Hyderabad.

For defence: Nil. Documents Marked For Prosecution: Ex P-1: Attested copy of Orders Rc. No. 503/FSS-1/2015, dated: 10.09.2015 of the Director, I.P.M (Orders in which LW-1) was posted to work in flying Squad). Ex.P-2: Attested Xerox Copy of orders in Rc. No.701/FSS-3/2015, DATED: 08.10.2015 (APPOINTING LW-1 AS FOOD Safety Officer). Ex.P-3: Attested xerox copy of the Proceedings Rc.No.2466/F1/2011-12-1, dated: 22.08.2012 appointment of Designated Officer for West zone, G.H.M.C Ex.P-4: Attested Xerox Copy of the Rc.No.5/FSS-3/2014, dated: 5.09.2014 appointment of Designated Officer for North zone, G.H.M.C. Ex.P-5: Attested Xerox copy of the Notification of the Commissioner of Food Safety, Telan gana G.O.Ms.No.1, Health Medical & Family Welfare (C2) Department, dated: 04.01.2016 Ex.P-6: Attested Xerox Copy of the orders Lr.No.DFC/Spl./2015-16, dated: 17.03.2016. Ex.P-7: Cash Receipt dated: 18.03.2016 for purchase of sample. Ex.P-8: Copy of form-VA Notice dt. 18.03.2016 served on Accused No.1 Ex.P-9: Copy of label on the sample dated: 1.03.2016. Ex.P-10: Copy of Intimation u/r 2.4.1 (iii) of F.S.S rules 2011 given to Accused to No.1 dated: 18.03.2016 Ex.P-11: Copy of Lr.No. 0140/02000/2016, dated: 18.03.2016 served on Accused No.1 Ex.P-12: Original Panchanama dated: 18.03.2016 Ex.P-13: Copy of Form VI Memoranum dt. 18.03.2016 submitted along with the sample Ex.P-14: Acknowledgment of the food Analsyt, for receipt of sample along Form VI for analysis 19.03.2016.

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Ex.P-15: Copy of form -VI Memorandum dt. 18.03.2016 having the specimen impression of the seal, submitted separately to the Food Analyst.

Ex.P-16: Acknowledgment of the food Analyst for receipt of the Form VI having the specimen impression of the seal dated: 19.03.2016 sent separately.

Ex.P-17: Lr.Rc.No.0140/02000/2016 dt. 19.03.2016, addressed to the Designated Officer, North zone, Greater Hyderabad Municipal Corporation, Hyderabad submisssion of 2nd and 3rd part of the sample.

Ex.P-18: Lr.Rc.No.0140/02000/2016 dt. 19.03.2016, addressed to the Designated Officer, North zone, Greater Hyderabad Municipal Corporation, Hyderabad submission of fourth part of the sample.

Ex.P-19: Food Analyst report No. 1247/2015-16 Dated: 30.03.2016.

Ex P:20: Covering letter of the food Analyst No. 898/SFL/2016, dated: 30.03.2016.

Ex.P-21: Copy of the Detailed Report Dt.05.04.2016 of the Food Safety Officer along with Annexure submitted to the designated Officer, North Zone, G.H.M.C

Ex.P-22: Copy of the Notice dated: 06.04.2016 sent to Accused No.1 by the Designated officer, Northzone, along with food Analyst report under rule 2.4.6(1) of F.S.S rules, 2011 and Section 4694) of F.S.S Act, 2006, sent through postal receipt No. RN146572245 IN, dated: 15.04.2016.

Ex.P-23: Copy of the Detailed report dated; 30.06.2016, of the Detailed report submitted to the Commissioner of food Safety, Telangana. Ex.P-24: Prosecution Orders Rc.No. 954/FSS-3/2016, dated: 24.08.2016

Ex.P-25: Copy of FSSA License bearing No. 13615014000332 issued in the name of Accused No.2.

Ex.P-26: Copy of VAT Registration of the Accused No.2 Firm, issued by the Commercial Tax Dept.

Ex.P27: Copy of the Document of Partnership of the Accused No.2 firm.

For Defence: Nil.

Materials objects Marked: Nil.

Sd/-

I METROPOLITAN MAGISTRATE,

(MUNICIPAL COURT), HYDERABAD.

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IN THE COURT OF THE I METROPOLTIAN MAGISTRATE

(MUNICIPAL COURT): HYDERABAD:

Present: Smt. VADLURI SUSMITHA I Metropolitan Magistrate (Municipal Court), Hyderabad.

Dated this the 04th day of May, 2023

CALENDER CASE No. 04 of 2021

Between: The State of Telangana, Represented by Food Safety Officer, South Zone, GHMC, O/o. The Food Safety Designated Officer, South Zone, GHMC, Hyderabad. … Complainant

A N D

P.Surender, Junior Executive Manager of M/s.Heritage Fresh Supermarket, Plot No.12-1-210/4, Santhosh Nagar, Hyderabad. … Accused

This case is coming before me for final hearing in the presence of Smt.K.Vijaya, learned APP for the complainant/State and Sri.M.Ramu, Counsel for the accused, and having stood over till this day for consideration, this court delivered the following:

JUDGMENT

1.The complaint filed by the Food Safety Officer, South Zone, GHMC,

Hyderabad against the accused for the offences under Sections 3(1)(zz)(iii), Section 21(1) and 26(2)(i) as per 3.1.2(6) of Food Safety and Standards (Food Products and

Food Additives) Regulations, 2011, punishable under Section 59(i) of Food Safety and Standards Act, 2006.

2.The Complainant Sri.P.Murthy Raju, Food Safety Officer (PW-1), South Zone,

GHMC, Hyderabad notified as Food Safety Officer vide G.O.Ms.No.243, Health,

Medical and Family Welfare (L1) Department, dated 25.08.2011 and published in the

A.P. Gazette for the local area of entire Greater Hyderabad Municipal Corporation jurisdiction.

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3. The case of the prosecution in nut shell : On 12-04-2017 at about 3:30 p.m., PW1 accompanied with P.Sathyanarayana visited the business premises of

M/s.Heritage Fresh Supermarket, Santhosh Nagar, Hyderabad for the purpose of inspection. At the time of inspection, accused was present and claimed himself as the Proprietor of said business and conducting the business and responsible for the business. PW1 secured the mediator by name R.Prem Kumar (PW2). In the presence of accused and PW2, PW1 inspected the said premises. During the course of inspection, PW1 found fruits kept in super market which are kept for sale to public for human consumption.

4.On suspicion PW1 purchased 2 kgs of Mango Alphonso fruits for the purpose of taking the sample and paid Rs.194/- towards its cost and obtained cash receipt. Then PW1 served Form VA notice to the accused to send the sample to the State Food Laboratory for analysis and took the acknowledgment. PW1 divided the said sample into four parts and completed the sampling procedure as per the provisions of the Act. After that PW1 drafted the panchanama in presence of accused and witness and obtained the signatures. On 13.04.2017,

PW1 sent one part of the sample along with Form VI Memorandum to the Food

Analyst, State Food Laboratory, Hyderabad for analysis. On 12.04.2017, other parts of the sample is deposited with the Designated Officer and obtained the acknowledgment.

5.On 25.04.2017, the Designated Officer has received the Food Analyst report bearing No.21/2017-18, Dt.25.04.2017 in that report the Food Analyst opined that the sample contains Calcium Hydroxide on the surface of the fruit.

Hence it is unsafe. After receiving the report, the Designated Officer has served a notice under Rule 2.4.6(1) along with food analyst report to the accused. The

Designated officer has submitted the detailed report to the Commissioner of

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Food Safety for according sanction for launching the prosecution against the accused person. Basing on the report submitted by the Designated Officer, the

Commissioner of Food Safety accorded the sanction to prosecution against accused. Accordingly, PW-1 has filed this present complaint before this court on 31.12.2020.

6.This Court took cognizance of the offence under Sections 3(1)(zz)(iii),

Section 21(1) and 26(2)(1) as per 3.1.2(6) of Food Safety and Standards (Food

Products and Food Additives) Regulations, 2011, punishable under Section 59(i) of Food Safety and Standards Act, 2006 and issued summons to accused. On receipt of summons, accused appeared before this court and copies of documents furnished under section 207 Cr.P.C.

7.The accused was examined under section 251 Cr.P.C for the offences under

Sections 3(1)(zz)(iii), Section 21(1) and 26(2)(i) as per 3.1.2(6) of Food Safety and

Standards (Food Products and Food Additives) Regulations, 2011 for which the accused pleaded not guilty and claimed to be tried.

8.In order to support its case the prosecution has examined PW-1 to PW-3 and got marked exhibits Ex.P-1 to Ex.P-29.

9.After closure of the prosecution evidence the accused was examined under section 313 Cr.P.C explaining the incrimating evidence available on recored and denied the same and reported no defence.

10.Heard learned A.P.P for the complainant/State and Sri.M.Ramu, Learned

Counsel of accused.

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11. Now the crux of the point for determination is:

Whether the prosecution has proved the guilt of accused for the

offences under Sections 3(1)(zz)(iii), Section 21(1) and 26(2)(i) as per

3.1.2(6) of Food Safety and Standards (Food Products and Food

Additives) Regulations, 2011 beyond all reasonable doubt?

12.In order to establish the case, the prosecution examined PW-1 to PW3 and marked exhibits Ex.P-1 to P-29.

13.PW1 evidence reveals that he inspected the M/s.Heritage

Supermarket on 12.04.2017 and conducting the inspection in the presence of accused and PW2. PW1 lifted the sample of mango alphonso fruits and completed all the sampling procedure in the presence of accused and witness, drafted the panchanama by incorporating the whole sampling procedure. PW1 evidence further reveals that he sent one part of the sample to the Food Analyst, SFL, Nacharam. After causing of analysis the

Food Analyst sent his report No.21/2017-18, Dated 25.04.2017 opining that “the surface of the fruit is positive presence of calcium hydroxide residue on the surface of the fruit indicates that the use of the calcium carbide for ripening of fruit. Hence it is unsafe”. After that Designated

Officer served the notice under Rule 2.4.6(1) to the accused along with food analyst report and intimated about the appeal to test the sample by any accredited laboratory but the accused did not prefer an appeal within a stipulated period. PW1 evidence further reveals that the Designated

Officer recommended sanction for launching prosecution against the accused to the Commissioner of Food Safety. Basing on the recommendation submitted by the Designated Officer, the Commissioner of Food Safety accorded sanction against accused for the alleged offences.

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14.PW2 evidence also reveals that in his presence the whole sample was done by PW1. PW3 evidence also reveals that the sampling procedure was done in his presence and he is the eye witness to the said procedure.

15. The learned APP has submitted his arguments orally and stated that PW1 filed this present complaint against accused person after following the due procedure prescribed under the FSS Act. The learned APP further submitted that after causing of analysis the Food Analyst given report as the mango fruit sample is contains calcium carbide and which is unsafe. The learned APP argued that the conviction may be accorded based on the food analyst report.

16.On the other hand the learned counsel for the accused argued that PW1 without including the firm as an accused, he only made the accused person who is the party in the said firm. The learned counsel relied on Section 66 of Food

Safety and Standards Act 2006.

Section 66 of FSS Act 2006-Offences by companies:- “(1) Where an offence under this Act which has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly”.

On perusing the evidence, it is clear that PW1 included only accused in the present case but not included firm as an accused. Under Section 66 of Food

Safety and Standards Act it is mandatory to include company as an accused. On perusing Ex.P19 it is disclosing that the Commissioner of Food Safety has accorded sanction to prosecute M/s.Heritage Supermarket, licensee as Accused

No.2. But the PW1 did not make as an accused. PW1 filed the present case by disobeying the orders of the Commissioner of Food Safety. According to this section company includes firm also. Here PW1 does not included the firm as an accused and it can be go to the root of the prosecution.

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17.The learned counsel for the accused argued that the PW1 purchased only 500 grams of mango alphonso fruit and completed all the sampling procedure with 500 grams of mango alphonso fruits only.

18.As per the evidence of PW1, in his chief he stated that he purchased 2 kgs of mango alphonso fruits from the accused person and paid Rs.281/- towards the cost but in the cross of the PW1, he admitted that he purchased 500 grams of mango alphonso fruits. In this connection I would like to through light upon Ex.P4 i.e., cash receipt it is disclosed that details about the sample of mango alphonso fruits purchased from the accused and containing the seal of M/s.Heritage Foods

India Limited which discloses that PW1 paid Rs.281/- towards the cost. Ex.P4 discloses that PW1 purchased 500 grams x 4 = 2 kgs of mango alphonso fruits as admitted by the PW1 in his cross. Ex.P5 to Ex.P8 discloses that PW1 purchased 500 grams of mango alphonso fruits only but in the evidence of PW1, he stated that he purchased 2 kgs of mango alphonso fruits from the accused person. With the help of documentary evidence and admission in cross of PW1 it is made clear that PW1 purchased 500 grams of mango alphonso fruits from the accused person and he lifted the sample of 500 grams of mango alphonso fruits only instead of 2 kgs mango alphonso fruits.

19.The learned counsel for accused further argued the notice under Rule 2.4.2(6) which is mandatory did not sent to the accused person. It is the violation of Rules made under the FSS Act and due to which accused is deprived of his right.

20.In connection to it, my attention was drawn to evidence of PW1, he stated that the Designated Officer has issued notice under Rule 2.4.2 (6) of FSS Rules enclosing the food analyst report to the accused and the same was dispatched to accused through post and in cross of PW1 he admitted that he did not file any

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acknowledgment to show that the food analyst report was served to the accused. The PW1 failed to show any document i.e., any postal acknowledgment.

In the absence of postal receipt it is not believable that the notice has been served on the accused. In the absence of documentary evidence as proof of sending the mandatory notice to the accused, it is made clear that accused did not receive the mandatory notice along with food analyst report to file an appeal. Not receiving mandatory notice and food analyst report would cause serious prejudice to the accused as he could not prefer any appeal and could not send the 4th part of the sampel to accredited laboratories. Therefore it implied that without serving of notice along with food analyst report, the Designated

Officer has forwarded the detailed report.

21.Learned counsel for accused vehemently argued that the complaint is filed after expiry of one year and as per Section 77 of the FSS Act the case is not maintainable.

22.My attention was drawn to Ex.P19 i.e., Prosecution order issued by the

Commissioner of Food Safety. On perusal it is discloses that which was issued on 26.11.2020 and duly signed and sealed properly. My attention was further drawn to evidence of PW1, in his evidence he deposed that he inspected the business premises of M/s.Heritage supermarket and lifted the sample on 12.04.2017. In this connection I would like to throw light upon the case record which dislcoses that the court took cognizance on 28.01.2021.

23.In this connection I would like to throw light upon Section 77 of FSS Act:

Section 77: Notwithstanding anything contained in this Act, no court shall take cognizance of an offence under this Act after the expiry of the period of one year from the date of commission of an offence:

Provided that the Commissioner of Food Safety may, for reasons to be recorded in writing, approve prosecution within an extended period of up to three years.

C.C No. 4/2021 8 /10

As per the proviso of Section 77 the Commissioner is require to assign a reason for extending the prosecution from one year to upto three years. On perusing the Ex.P19 there is no reasoned order for the delay of 3½ years. The extending prosecution order beyond one year period is vested with

Commissioner of Food Safety only. But in the present case the Commissioner of

Food Safety did not specify any reason to that effect. It is evident from the record that the sample in question was lifted on 12.04.2017 and the sanction for prosecution was issued on 26.11.2020. It is made clear that there is 3½ years from the date of lifting of the sample to order of the Commissioner of Food

Safety. As per the proviso of Section 77, the Commissioner of Food Safety may extend time upto three years by providing reasons in writing. But in the case on hand Ex.P19 doesn’t have contain any order to that effect. Ex.P19 doesn’t contain any reasoned order for the delay caused. As per the proviso of Section 77 in the absence of written order from the Commissioner of Food Safety the time limit for prosecution cannot be extended. However, in the case on hand Commissioner has failed to give reason in writing for the delay. Without giving the proper reason and satisfactory explanation, the Commissioner has extended. It is made clear that delay in issuing the prosecution order. Basing on the evidence adduced by the PW1 and documentary evidence it is made clear that there was a delay of 3½ years from the date of lifting the sample to filing of the complaint before the court and it leads to the latches on part of the prosecution.

24.For the foregoing reasons, this court is of the firm opinion that the prosecution has miserably failed to prove guilt of the accused with cogent and convicing evidence beyond all reasonable doubt.

C.C No. 4/2021 9 /10

25.In the result, accused is found not guilty of the offence under Sections 3(1)(zz)(iii), Section 21(1) and 26(2)(i) as per 3.1.2(6) of Food Safety and Standards (Food Products and Food Additives) Regulations, 2011 and accordingly, he is acquitted under Section 255(1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months under Section 437-A Cr.P.C.

Typed by Typist on my dictation, corrected and pronounced by me in the open Court, on this the 4th day of May, 2023.

I METROPOLITAN MAGISTRATE,

(MUNICIPAL COURT), HYDERABAD.

Appendix of Evidence

Witnesss Examined

For prosection:

1. PW-1 : P.Murthy Raju, Food Safety Officer, GHMC, Hyderabad.

2. PW-2 : R.Prem Kumar, Mediator

3. PW-3 : P.Sathyanarayana, Assisted PW1

For defence: Nil.

Documents Marked

For Prosecution:

Ex.P-1 : Attested copy of G.O.Ms.NO. 243, HM& FW (L1) Dept. Dated: 25.08.2011 (appointment of Food Safety Officer)

Ex.P-2 : Attested Copy of Proc.Rc.No. 586/FSS-1/2016, dated: 29.10.2016, (appointment of Desiganted Officer)

Ex.P-3 : Attested copy of the Notification of the Commissioner of food Safety, Telangana in G.O.Ms.No. 1, Health, Medical and Family Welfare (C2) Department, dated: 04.01.2016

Ex.P-4 : Cash Receipt dated : 12.04.2017 for purchase of sample .

Ex.P-5 : Copy of Form-VA ,Notice dated 12.04.2017 served to Accused.

Ex.P-6 : Copy of letter RC. No.015/02213/2017 Dt,12.04.2017 served to accused.

Ex.P-7 : Copy of the Intimation under Rule 2.4.1 (iii) dated: 12.04.2017 served to accused.

Ex.P-8 : Copy of the label on sample container code No. RC. No.015/02213/2017

dated 12.04.2017

Ex.P-9 : Original Panchanama dt. 12.04.2017

Ex.P-10: Acknowledgement of Food Analyst Government of Telangana for receipt of sample along with memorandum.dt.13.04.2017.

C.C No. 4/2021 10 /10

Ex.P-11: Copy of Memorandum in Form-VI having the specimen impression of the seal, sent separately to the Food Analyst dated: 13.04.2017

Ex.P-12: Acknowledgment of Food Analyst for receipt of sealed cover having the specimen impressionof the seal affixed form -VI dated: 13.04.2017 sent separately.

Ex.P-13: Lr.Rc No. 015/02213/2017 Dt. 13.04.2017 , Addressed to the Designated officer, South Zone, G.H.M.C Hyd. For submission of 2nd and 3rd parts of the sample along with acknowledgment.

Ex.P-14: Lr.Rc No. 015/02213/2017 Dt. 13.04.2017 Addressed to the Designated officer, South Zone, G.H.M.C Hyd. For submission of 4th parts of the sample along with acknowledgment.

Ex.P-15: Food Analyst report No. 21/2017-18 Dt.25.04.2017.

Ex.P-16: Intimation of analysis report to FBO by Designated Office south zone along with food analysis report u/sec. 46(4) F.S.S Act-2006 dt. 05.05.2017.

Ex.P-17: Report submitted by F.S.O to the F.S.D.O dt. 08.05.2017 along with annexure.

Ex.P-18: F.S.D.O forwarded the detailed report to the Commissioner of food Safety Dt. 09.05.2017 vide RC No. 015/02213/2017.

Ex.P-19: Sanction order issused by Commissioner of food Safety, Dt. 26.11.2017

Rc.No.1116/FSS-3/2017.

Ex.P-20: Copy of aadhar (Attested) of F.B.O No. 5123 1900 9852

Ex.P-21: Copy of aadhar (Attested) of witness No. 4675 1745 4383

Ex.P-22: Copy of aadhar attested of witness No.2 9281 8102 5657

Ex.P-23: Attested copy of F.S.S.I License No.13615015000271 in favour of Heritage Food Limited, Santhosh nagar.

Ex.P-24 to Ex.P-29: Signatures of PW2 in Ex.P4 to Ex.P9.

For Defence: Nil.

Materials objects Marked: Nil.

I METROPOLITAN MAGISTRATE,

(MUNICIPAL COURT), HYDERABAD.

C.C No. 2/2021 1 /10

IN THE COURT OF THE I METROPOLTIAN MAGISTRATE

(MUNICIPAL COURT): HYDERABAD:

Present: Smt. VADLURI SUSMITHA I Metropolitan Magistrate (Municipal Court), Hyderabad.

Dated this the 04th day of May, 2023

CALENDER CASE No. 02 of 2021

Between: The State of Telangana, Represented by Food Safety Officer, South Zone, GHMC, O/o. The Food Safety Designated Officer, South Zone, GHMC, Hyderabad. … Complainant

A N D

P.Surender, Junior Executive Manager of M/s.Heritage Fresh Supermarket, Plot No.12-1-210/4, Santhosh Nagar, Hyderabad. … Accused

This case is coming before me for final hearing in the presence of Smt.K.Vijaya, learned APP for the complainant/State and Sri.M.Ramu, Counsel for the accused, and having stood over till this day for consideration, this court delivered the following:

JUDGMENT

1.The complaint filed by the Food Safety Officer, South Zone, GHMC,

Hyderabad against the accused for the offences under Sections 3(1)(zz)(iii), Section 21(1) and 26(2)(i) as per 3.1.2(6) of Food Safety and Standards (Food Products and

Food Additives) Regulations, 2011, punishable under Section 59(i) of Food Safety and Standards Act, 2006.

2.The Complainant Sri.P.Murthy Raju, Food Safety Officer (PW-1), South Zone,

GHMC, Hyderabad notified as Food Safety Officer vide G.O.Ms.No.243, Health,

Medical and Family Welfare (L1) Department, dated 25.08.2011 and published in the

A.P. Gazette for the local area of entire Greater Hyderabad Municipal Corporation jurisdiction.

C.C No. 2/2021 2 /10

3. The case of the prosecution in nut shell : On 12-04-2017 at about 3:30 p.m., PW1 accompanied with P.Sathyanarayana visited the business premises of

M/s.Heritage Fresh Supermarket, Santhosh Nagar, Hyderabad for the purpose of inspection. At the time of inspection, accused was present and claimed himself as the Proprietor of said business and conducting the business and responsible for the business. PW1 secured the mediator by name R.Prem Kumar (PW2). In the presence of accused and PW2, PW1 inspected the said premises. During the course of inspection, PW1 found fruits kept in super market which are kept for sale to public for human consumption.

4.On suspicion PW1 purchased 2 kgs of Mango Banginappaly fruits for the purpose of taking the sample and paid Rs.194/- towards its cost and obtained cash receipt. Then PW1 served Form VA notice to the accused to send the sample to the State Food Laboratory for analysis and took the acknowledgment. PW1 divided the said sample into four parts and completed the sampling procedure as per the provisions of the Act. After that PW1 drafted the panchanama in presence of accused and witness and obtained the signatures. On 13.04.2017,

PW1 sent one part of the sample along with Form VI Memorandum to the Food

Analyst, State Food Laboratory, Hyderabad for analysis. On 12.04.2017, other parts of the sample is deposited with the Designated Officer and obtained the acknowledgment.

5.On 25.04.2017, the Designated Officer has received the Food Analyst report bearing No.24/2017-18, Dt.25.04.2017 in that report the Food Analyst opined that the sample contains Calcium Hydroxide on the surface of the fruit.

Hence it is unsafe. After receiving the report, the Designated Officer has served a notice under Rule 2.4.6(1) along with food analyst report to the accused. The

Designated officer has submitted the detailed report to the Commissioner of

Food Safety for according sanction for launching the prosecution against the

C.C No. 2/2021 3 /10

accused person. Basing on the report submitted by the Designated Officer, the

Commissioner of Food Safety accorded the sanction to prosecution against accused. Accordingly, PW-1 has filed this present complaint before this court on 31.12.2020.

6.This Court took cognizance of the offence under Sections 3(1)(zz)(iii),

Section 21(1) and 26(2)(1) as per 3.1.2(6) of Food Safety and Standards (Food

Products and Food Additives) Regulations, 2011, punishable under Section 59(i) of Food Safety and Standards Act, 2006 and issued summons to accused. On receipt of summons, accused appeared before this court and copies of documents furnished under section 207 Cr.P.C.

7.The accused was examined under section 251 Cr.P.C for the offences under

Sections 3(1)(zz)(iii), Section 21(1) and 26(2)(i) as per 3.1.2(6) of Food Safety and

Standards (Food Products and Food Additives) Regulations, 2011 for which the accused pleaded not guilty and claimed to be tried.

8.In order to support its case the prosecution has examined PW-1 to PW-3 and got marked exhibits Ex.P-1 to Ex.P-24.

9.After closure of the prosecution evidence the accused was examined under section 313 Cr.P.C explaining the incrimating evidence available on recored and denied the same and reported no defence.

10.Heard learned A.P.P for the complainant/State and Sri.M.Ramu, Learned

Counsel of accused.

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11. Now the crux of the point for determination is:

Whether the prosecution has proved the guilt of accused for the

offences under Sections 3(1)(zz)(iii), Section 21(1) and 26(2)(i) as per

3.1.2(6) of Food Safety and Standards (Food Products and Food

Additives) Regulations, 2011 beyond all reasonable doubt?

12.In order to establish the case, the prosecution examined PW-1 to PW3 and got marked exhibits Ex.P-1 to P-24.

13.PW1 evidence reveals that he inspected the M/s.Heritage

Supermarket on 12.04.2017 and conducting the inspection in the presence of accused and PW2. PW1 lifted the sample of banginapalli mango fruits and completed all the sampling procedure in the presence of accused and witness, drafted the panchanama by incorporating the whole sampling procedure. PW1 evidence further reveals that he sent one part of the sample to the Food Analyst, SFL, Nacharam. After causing of analysis the

Food Analyst sent his report No.24/2017-18, Dated 25.04.2017 opining that “the surface of the fruit is positive presence of calcium hydroxide residue on the surface of the fruit indicates that the use of the calcium carbide for ripening of fruit. Hence it is unsafe”. After that Designated

Officer served the notice under Rule 2.4.6(1) to the accused along with food analyst report and intimated about the appeal to test the sample by any accredited laboratory but the accused did not prefer an appeal within a stipulated period. PW1 evidence further reveals that the Designated

Officer recommended sanction for launching prosecution against the accused to the Commissioner of Food Safety. Basing on the recommendation submitted by the Designated Officer, the Commissioner of Food Safety accorded sanction against accused for the alleged offences.

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14.PW2 evidence also reveals that in his presence the whole sample was done by PW1. PW3 evidence also reveals that the sampling procedure was done in his presence and he is the eye witness to the said procedure.

15. The learned APP has submitted his arguments orally and stated that PW1 filed this present complaint against accused person after following the due procedure prescribed under the FSS Act. The learned APP further submitted that after causing of analysis the Food Analyst given report as the mango fruit sample is contains calcium carbide and which is unsafe. The learned APP argued that the conviction may be accorded based on the food analyst report.

16.On the other hand the learned counsel for the accused argued that PW1 without including the firm as an accused, he only made the accused person who is the party in the said firm. The learned counsel relied on Section 66 of Food

Safety and Standards Act 2006.

Section 66 of FSS Act 2006-Offences by companies:- “(1) Where an offence under this Act which has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly”.

On perusing the evidence, it is clear that PW1 included only accused in the present case but not included firm as an accused. Under Section 66 of Food

Safety and Standards Act it is mandatory to include company as an accused. On perusing Ex.P15 it is disclosing that the Commissioner of Food Safety has accorded sanction to prosecute M/s.Heritage Supermarket, licensee as Accused

No.2. But the PW1 did not make as an accused. PW1 filed the present case by disobeying the orders of the Commissioner of Food Safety. According to this section company includes firm also. Here PW1 does not included the firm as an accused and it can be go to the root of the prosecution.

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17.The learned counsel for the accused argued that the PW1 purchased only 500 grams of mango banginapally fruit and completed all the sampling procedure with 500 grams of mango banginapally fruits only.

18.As per the evidence of PW1, in his chief he stated that he purchased 2 kgs of mango banginapally fruits from the accused person and paid Rs.194/- towards the cost but in the cross of the PW1, he admitted that he purchased 500 grams of mango banginapally fruits. In this connection I would like to through light upon

Ex.P1 i.e., cash receipt it is disclosed that details about the sample of mango banginapally fruits purchased from the accused and containing the seal of

M/s.Heritage Foods India Limited which discloses that PW1 paid Rs.185/- towards the cost. Ex.P1 discloses that PW1 purchased 500 grams of mango banginapally fruits as admitted by the PW1 in his cross. Ex.P1 to Ex.P5 also discloses that PW1 purchased 500 grams of mango banginapally fruits only but in the evidence of

PW1, he stated that he purchased 2 kgs of mango banginapally fruits from the accused person. With the help of documentary evidence and admission in cross of PW1 it is made clear that PW1 purchased 500 grams of mango banginapally fruits from the accused person and he lifted the sample of 500 grams of mango banginapally fruits only instead of 2 kgs mango banginapally fruits.

19.The learned counsel for accused further argued the notice under Rule 2.4.2(6) which is mandatory did not sent to the accused person. It is the violation of Rules made under the FSS Act and due to which accused is deprived of his right.

20.In connection to it, my attention was drawn to evidence of PW1, he stated that the Designated Officer has issued notice under Rule 2.4.2 (6) of FSS Rules enclosing the food analyst report to the accused and the same was dispatched to accused through post and in cross of PW1 he admitted that he did not file any

C.C No. 2/2021 7 /10

acknowledgment to show that the food analyst report was served to the accused. The PW1 failed to show any document i.e., any postal acknowledgment.

In the absence of postal receipt it is not believable that the notice has been served on the accused. In the absence of documentary evidence as proof of sending the mandatory notice to the accused, it is made clear that accused did not receive the mandatory notice along with food analyst report to file an appeal. Not receiving mandatory notice and food analyst report would cause serious prejudice to the accused as he could not prefer any appeal and could not send the 4th part of the sampel to accredited laboratories. Therefore it implied that without serving of notice along with food analyst report, the Designated

Officer has forwarded the detailed report.

21.Learned counsel for accused vehemently argued that the complaint is filed after expiry of one year and as per Section 77 of the FSS Act the case is not maintainable.

22.My attention was drawn to Ex.P15 i.e., Prosecution order issued by the

Commissioner of Food Safety. On perusal it is discloses that which was issued on 26.11.2020 and duly signed and sealed properly. My attention was further drawn to evidence of PW1, in his evidence he deposed that he inspected the business premises of M/s.Heritage supermarket and lifted the sample on 12.04.2017. In this connection I would like to throw light upon the case record which dislcoses that the court took cognizance on 28.01.2021.

23.In this connection I would like to throw light upon Section 77 of FSS Act:

Section 77: Notwithstanding anything contained in this Act, no court shall take cognizance of an offence under this Act after the expiry of the period of one year from the date of commission of an offence:

Provided that the Commissioner of Food Safety may, for reasons to be recorded in writing, approve prosecution within an extended period of up to three years.

C.C No. 2/2021 8 /10

As per the proviso of Section 77 the Commissioner is require to assign a reason for extending the prosecution from one year to upto three years. On perusing the Ex.P15 there is no reasoned order for the delay of 3½ years. The extending prosecution order beyond one year period is vested with

Commissioner of Food Safety only. But in the present case the Commissioner of

Food Safety did not specify any reason to that effect. It is evident from the record that the sample in question was lifted on 12.04.2017 and the sanction for prosecution was issued on 26.11.2020. It is made clear that there is 3½ years from the date of lifting of the sample to order of the Commissioner of Food

Safety. As per the proviso of Section 77, the Commissioner of Food Safety may extend time upto three years by providing reasons in writing. But in the case on hand Ex.P15 doesn’t have contain any order to that effect. Ex.P15 doesn’t contain any reasoned order for the delay caused. As per the proviso of Section 77 in the absence of written order from the Commissioner of Food Safety the time limit for prosecution cannot be extended. However, in the case on hand Commissioner has failed to give reason in writing for the delay. Without giving the proper reason and satisfactory explanation, the Commissioner has extended. It is made clear that delay in issuing the prosecution order. Basing on the evidence adduced by the PW1 and documentary evidence it is made clear that there was a delay of 3½ years from the date of lifting the sample to filing of the complaint before the court and it leads to the latches on part of the prosecution.

24.For the foregoing reasons, this court is of the firm opinion that the prosecution has miserably failed to prove guilt of the accused with cogent and convicing evidence beyond all reasonable doubt.

C.C No. 2/2021 9 /10

25.In the result, accused is found not guilty of the offence under Sections 3(1)(zz)(iii), Section 21(1) and 26(2)(i) as per 3.1.2(6) of Food Safety and Standards (Food Products and Food Additives) Regulations, 2011 and accordingly, he is acquitted under Section 255(1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months under Section 437-A Cr.P.C.

Typed by Typist on my dictation, corrected and pronounced by me in the open Court, on this the 4th day of May, 2023.

I METROPOLITAN MAGISTRATE,

(MUNICIPAL COURT), HYDERABAD.

Appendix of Evidence

Witnesss Examined

For prosection:

1. PW-1 : P.Murthy Raju, Food Safety Officer, GHMC, Hyderabad.

2. PW-2 : R.Prem Kumar, Mediator

3. PW-3 : P.Sathyanarayana, Assisted PW1

For defence: Nil. Documents Marked For Prosecution: Ex.P-1 : Cash Receipt dated : 12.04.2017 for purchase of sample .

Ex.P-2 : Copy of Form-VA ,Notice dated 12.04.2017 served to Accused.

Ex.P-3 : Copy of letter No.015/02214/2017 Dt,12.04.2017 served to accused.

Ex.P-4 : Copy of the Intimation under Rule 2.4.1 (iii) dated: 12.04.2017 served to accused.

Ex.P-5 : Copy of the label on sample container dated 12.04.2017

Ex.P-6 : Original Panchanama dt. 12.04.2017

Ex.P-7 : Copy of Form VI Memorandum Dt.12.04.2017

Ex.P-8 : Acknowledgement of Food Analyst for receipt of sample of package of sample along with memorandum.dt.13.04.2017

Ex.P-9 : Copy of Memorandum in Form-VI having the specimen impression of the seal, sent separately to the Food Analyst dated: 13.04.2017 and is the Acknowledgment of Food Analyst for receipt of sealed cover having the specimen impressionof the seal affixed form -VI dated: 13.04.2017 sent separately.

Ex.P-10: Lr.Rc No. 015/02214/2017 Dt. 12.04.2017 , Addressed to the Designated officer, South Zone, G.H.M.C Hyd. For submission of 2nd and 3rd parts of the sample along with acknowledgment.

C.C No. 2/2021 10 /10

Ex.P11: Lr.Rc No. 015/02214/2017 Dt. 12.04.2017 Addressed to the Designated officer, South Zone, G.H.M.C Hyd. For submission of 4th parts of the sample along with acknowledgment.

Ex.P-12: Food Analyst report No. 24/2017-18 Dt:25.04.2017

Ex.P-13: Intimation of analysis report of FBO by Designated Office south zone along with food analysis report u/sec. 46(4) F.S.S Act-2006 dt. 05.05.2017

Ex.P-14 : Report submitted to F.S.D.O to thse Commissioner of Food Safety in RC No.015/02214/2017 Dt,.18.05.2017 along with annexure submitted by F.S.O for recommendation for prosecution dt. 9.5.2017

Ex.P-15 : Prosecution Orders in Rc.No.1119/FSS-3/2017 Dt. 26.11.2020.

Ex.P-16: Attested copy of G.O.Ms.NO. 243, HM& FW (L1) Dept. Dated: 25.08.2011(appointment of Food Safety Officer)

Ex.P-17: Attested Copy of Proc.Rc.No. 586/FSS-1/2016, dated: 29.10.2016, (appointment of Desiganted Officer)

Ex.P-18: Attested copy of the Notification of the Commissioner of food Safety, Telangana in G.O.Ms.No. 1, Health, Medical and Family Welfare (C2) Department, dated: 04.01.2016

Ex.P-19 to Ex.P-24: Signatures of PW2 in Ex.P1 to Ex.P6.

For Defence: Nil.

Materials objects Marked: Nil.

I METROPOLITAN MAGISTRATE,

(MUNICIPAL COURT), HYDERABAD.

C.C No. 16/2021 1 /10

IN THE COURT OF THE I METROPOLTIAN MAGISTRATE

(MUNICIPAL COURT): HYDERABAD

Present: Smt. VADLURI SUSMITHA I Metropolitan Magistrate (Municipal Court), Hyderabad.

Dated this the 02nd day of January, 2023

CALENDER CASE No.16 of 2021

Between: The State of Telangana, Represented by Food Safety Officer, West Zone, GHMC, O/o. The Food Safety Designated Officer, West Zone, GHMC, Hyderabad. … Complainant

A N D

Kammari Praveen Kumar, Assistant Store Manager of M/s.More Retail Ltd., Ground Floor, Door # 74, Sy.No.1092/A, 1092/C, Balaji Nagar, Kukatpally, Hyderabad. … Accused

This case is coming before me for final hearing in the presence of Smt.K.Vijaya, learned APP for the complainant/State and Sri.M.Surender and Sri.Mukhtar Mohiuddin, Counsels for accused, and having stood over till this day for consideration, this court delivered the following:

JUDGMENT

1.The complaint filed by the Food Safety Officer, West Zone, GHMC, Hyderabad against the accused for the offences under Sections 3(1)(zz)(iii), Section 21(1) and 26(2)(i) as per 3.1.2(6) of Food Safety and Standards (Food Products and Food

Additives) Regulations, 2011, punishable under Section 59(i) of Food Safety and

Standards Act, 2006.

2.The Complainant Sri.P.Murthy Raju, Food Safety Officer (PW-1), West Zone,

GHMC, Hyderabad notified as Food Safety Officer vide G.O.Ms.No.243, Health,

Medical and Family Welfare (L1) Department, dated 25.08.2011 and published in the

A.P. Gazette for the local area of entire Greater Hyderabad Municipal Corporation jurisdiction.

C.C No. 16/2021 2 /10

3. The case of the prosecution in nut shell : On 18-01-2020 at about 9:30 a.m., PW1 accompanied with P.Sathyanarayana visited the business premises of

M/s.More Retail Ltd., Kukatpally, Hyderabad for the purpose of inspection. At the time of inspection, accused was present and claimed himself as the Proprietor of said business and conducting the business and responsible for the business. PW1 secured the mediator by name M.Venkanna (LW2). In the presence of accused and LW2, PW1 inspected the said premises. During the course of inspection, PW1 found fruits in super market which are kept for sale to public for human consumption.

4.On suspicion PW1 purchased 2 kgs of Grapes (white) for the purpose of lifting the sample and paid Rs.344/- towards its cost and obtained cash receipt.

Then PW1 served Form VA notice to the accused and informed that the sample will be send to the State Food Laboratory for analysis and took the acknowledgment. PW1 divided the said sample into four parts and completed the sampling procedure as per the provisions of the Act. After that PW1 drafted the panchanama in presence of accused and witness and obtained the signatures. On 18.01.2020, PW1 sent one part of the sample along with Form VI

Memorandum to the Food Analyst, State Food Laboratory, Hyderabad for analysis. On the same day, other parts of the sample is deposited with the

Designated Officer and obtained the acknowledgment.

5.On 30.01.2020, the Designated Officer has received the Food Analyst report bearing No.510/2019-20, Dt.30.01.2020 in that report the Food Analyst opined that the sample contains Ethephon as per 2.3.1(3)(70) of Food Safety and

Standards (Contaminants, Toxins, Residues) Regulations, 2011. Hence it is unsafe.

After receiving the report, the Designated Officer has served a notice under Rule 2.4.6(1) along with food analyst report to the accused. The Designated officer has submitted the detailed report to the Commissioner of Food Safety for

C.C No. 16/2021 3 /10

according sanction to launching the prosecution against the accused person.

Basing on the report submitted by the Designated Officer, the Commissioner of

Food Safety accorded the sanction to prosecution against accused. Accordingly,

PW-1 has filed this present complaint before this court on 31.12.2020.

6.This Court took cognizance of the offence under Sections 3(1)(zz)(iii),

Section 21(1) and 26(2)(1) as per 3.1.2(6) of Food Safety and Standards (Food

Products and Food Additives) Regulations, 2011, punishable under Section 59(i) of Food Safety and Standards Act, 2006 and issued summons to accused. On receipt of summons, accused appeared before this court and copies of documents furnished under section 207 Cr.P.C.

7.The accused was examined under section 251 Cr.P.C for the offences under

Sections 3(1)(zz)(iii), Section 21(1) and 26(2)(i) as per 3.1.2(6) of Food Safety and

Standards (Food Products and Food Additives) Regulations, 2011 for which the accused pleaded not guilty and claimed to be tried.

8.In order to support its case the prosecution has examined PW-1 and PW-2 and got marked exhibits Ex.P-1 to Ex.P-26.

9.After closure of the prosecution evidence the accused was examined under section 313 Cr.P.C explaining the incrimating evidence available on recored and denied the same and reported no defence.

10.Heard learned A.P.P for the complainant/State and Sri.M.Surender,

Learned Counsel of accused.

C.C No. 16/2021 4 /10

11. Now the crux of the point for determination is:

Whether the prosecution has proved the guilt of accused for the

offences under Sections 3(1)(zz)(iii), Section 21(1) and 26(2)(i) as per

3.1.2(6) of Food Safety and Standards (Food Products and Food

Additives) Regulations, 2011 beyond all reasonable doubt?

12.In order to establish the case, the prosecution has examined PW-1, PW2 and PW3 and marked exhibits Ex.P-1 to P-26.

13.The learned APP argued that PW1 inspected and completed sampling procedure, Food Analyst given report as unsafe. Basing on the

Food Analyst report the accused liable to be convicted.

14.The learned counsel for the accused vehemently argued that the

Commissioner of Food Safety accorded sanction against one unknown person but not against the accused in the present case and filing of the case against the accused is irregular.

15.My attention was drawn to Ex.P21-Prosecution order issued by

Commissioner of Food Safety. It discloses that which was issued on 23.11.2020 vide Rc.No.775/FSS-3/2019-20 which is properly signed and sealed. On observation, it clearly appeared that the Commissioner of Food

Safety accorded sanction to prosecute against A1 namely Sk.Ashraf and A2

Licensee M/s.Paradise Food Court.

16.On perusal of the case record, evidence adduced by the PW1, PW2 and relevant exhibits it is made clear that the prosecution has made the one person Mr.Kammari Praveen Kumar as an accused person. Per contra, the Commissioner of Food Safety has issued sanctioned proceedings against some other persons. Here PW1 by violating and disobeying the

C.C No. 16/2021 5 /10

orders of the Commissioner of Food Safety filed this present case against the accused person. It is elicited from the evidence of PW1 that he has filed the present case basing on the orders of the Commissioner of Food

Safety. But as per the Commissioner of Food Safety the present accused would not have prosecuted. Instead other persons have to prosecuted as per the orders of the Commissioner of Food Safety. Basing on the oral and documentary evidence adduced by the witness it is made clear that the

Commissioner of Food Safety not accorded sanction to prosecute the accused person.

17.The learned counsel for accused further argued that there are contradictions in the evidence of PW1 relating to the office subordinate accompanied with him.

18.On perusing the evidence of PW1 in his chief he deposed that he visited the business premises along with P.Satyanarayana. As per the

Ex.P9-panchanama drafted by PW1 it discloses that he visited the shop of the accused along with PW2 namely Naresh and stated that he is office subordinate.

19.Without having clarity PW1 stated two different statements at different situations. It is made clear that PW1 has no idea with whom he accompanied at the time of sampling procedure.

20.The learned counsel for accused further argued that PW2 is not a panch witness.

C.C No. 16/2021 6 /10

21.On perusing the documents adduced by PW1 it is made clear that

PW2 is not signatory to the said documents i.e., Ex.P4 to Ex.P9. PW2 in his evidence stated that he accompanied PW1 at the time of sampling procedure. Further he admitted that PW1 lifted the sample and completed the sampling procedure in his presence. On perusing the documents no document is containing the signature of PW2. If he really act as panch witness, PW1 would have take the signature of the PW2 on relevant documents. PW1 failed to show that who prevented him from obtaining the signatures of the PW2 if he really present at the time of inspection and sampling procedure.

22.In connection to it, my attention was drawn to evidence of PW1, he stated that on 03.08.2016, the Designated Officer has issued notice under

Rule 2.4.2 (6) of FSS Rules enclosing the food analyst report to the accused and the same was dispatched to accused through RPAD and in cross of

PW1 he admitted that he did not file any acknowledgment to show that the food analyst report was served to the accused. The PW1 failed to show any document i.e., any postal acknowledgment. In the absence of postal receipt it is not believable that the notice has been served on the accused.

In the absence of documentary evidence. In the absence of documentary evidence as proof of sending the mandatory notice to the accused, it is made clear that Accused did not receive the mandatory notice along with food analyst report to file an appeal. Not receiving mandatory notice and food analyst report would cause serious prejudice to the accused as he could not prefer any appeal and could not send the 4th part of the sampel to accredited laboratories. Therefore it implied that without serving of notice along with food analyst report, the Designated Officer has

C.C No. 16/2021 7 /10

forwarded the detailed report and also PW1 failed to give accurate date on which the Designated Officer has sent notice to the accused person.

23.The learned counsel for accused placed reliance on following judgments to support his contention.

2019 (2) FAC 58 Supreme Court of India 2004 (2) FAC 248 A.P. High Court 2019 (1) FAC 547 Madras High Court

In the above judgments, the Hon’ble Apex Court and High Courts held that the accused is deprived of valuable right for sending of the sample to referred laboratory.

24.The learned counsel for the accused further argued that LW2 panch witness not examined by the prosecution and no independent witness was examined.

25.On perusing the evidence of PW1 it is elicited that he along with LW2 visited the M/s.More Retail Limited. Per contra PW1 in his chief he admitted that at the time of inspection and sampling procedure one person N.Suresh (PW2) accompanied him but no document having the signature of PW2. Here prosecution has failed produce LW2 before the court to prove the inspection and sampling procedure. And prosecution has failed to give satisfactory explanation for not examining the LW2

before the court.

26.My attention was drawn to deposition of PW1, he admitted that he inspected the business premises of PW1 in the presence of LW2. He further admitted that after completion of inspection, he drafted the

C.C No. 16/2021 8 /10

panchanama and obtained the signatures of witnesses. In this connection reliance has to be placed on Ex.P9 i.e., panchanama dated 18.01.2020 which is admittedly having the signatures of the panch witnesses. As per the evidence of PW1 and Ex.P9 it is evident that LW2 was very much present at the time of inspection. But in the case on hand, prosecution has failed to examine the LW2 before the court and no explanation given by the prosecution has to why the panch witness was not examined. In the absence of panch witness evidence, the panchanama under the procedure was adopted itself is not proved, in as much as the panch witness was not examined. This can be goes to the case of the prosecution. Once the panchanama was not proved the entire edifice basing on the inspection and sampling procedure would have no sanctity at all.

27.For the foregoing reasons, this court is of the firm opinion that the prosecution has miserably failed to prove guilt of the accused with cogent and convicing evidence beyond all reasonable doubt.

28.In the result, accused is found not guilty of the offence under Sections 3(1)(zz)(iii), Section 21(1) and 26(2)(i) as per 3.1.2(6) of Food Safety and Standards (Food Products and Food Additives) Regulations, 2011 and accordingly, he is acquitted under Section 255(1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months under Section 437-A Cr.P.C.

Typed by Typist on my dictation, corrected and pronounced by me in the open Court, on this the 2nd day of January, 2023.

I METROPOLITAN MAGISTRATE,

(MUNICIPAL COURT), HYDERABAD.

C.C No. 16/2021 9 /10

Appendix of Evidence

Witnesss Examined

For prosection:

1. PW-1 : P.Murthy Raju, Food Safety Officer, GHMC, Hyderabad.

2. PW-2 : N.Suresh For defence: Nil.

Documents Marked

For Prosecution:

Ex.P-1 : Attested Xerox Copy of G.O Ms NO. 243, HM& FW(L1) dept. dated 25.08.2011. (appointment of Food Safety Officer)

Ex.P-2 : Attested Xerox copy of Proc. Rc.No.1091/F1/2011-12-1 dated 19.08.2017 (appointment of Designated Officer).

Ex.P-3 : Atested Xerox Copy of the notification of the commissioner of Food Safety, Telangana in g.O Ms.No.1 Health, Medical & Family Welfare (C2) Department, dated 04.01.2016.

Ex.P-4 : Cash Receipt dated 18.01.2020 for purchase of sample .

Ex.P-5 : Copy of Form-VA , dated 18.01.2020 served to Accused.

Ex.P-6 : Copy of letter No. 0130/03413/2020 dated:18.01.2020 served to accused.

Ex.P-7 : Copy of the Intimation under Rule 2.4.1 (iii) dated: 18.01.2020 served to accused.

Ex.P-8 : Copy of the label on sample container dated 18.01.2020

Ex.P-9 : Original Panchanama dt. 18.01.2020.

Ex.P-10: Copy of Form VI Memorandum Dt.18.01.2020

Ex.P-11: Acknowledgement of Food Analyst for receipt of sample of package of sample along with memorandum.

Ex.P-12: Copy of Memorandum in Form-VI having the specimen impression of the seal, sent separately to the Food Analyst dated: 18.01.2020

Ex.P-13: Acknowledgment of Food Analyst for receipt of sealed cover having the specimen impressionof the seal affixed form -VI dated: 18.01.2020 sent separately.

Ex.P-14: Lr.Rc No. 0130/03413/2020 Dt. 18.01.2020 , Addressed to the Designated officer, West Zone, G.H.M.C Hyd. For submission of 2nd and 3rd parts of the sample along with acknowledgment.

Ex.P-15: Lr.Rc No. 0130/03413/2020 Dt. 18.01.2020 , Addressed to the Designated officer, West Zone, G.H.M.C Hyd. For submission of 4th parts of the sample along with acknowledgment.

Ex.P-16: Food Analyst report No. 510/2019-20, Dt. 30.01.2020

Ex.P-17: Covering letter of the Food analyst No. 3095/SFL/2020 dt.30.01.2020

Ex.P-18: Copy of the intimation of analysis report to FBO by the D.O West Zone along with food Analyst report under section 46(4) of F.S.S Act-2006 Dt. 03.02.2020

Ex.P-19 : Copy of the report submitted by FSDO to the Commissioner of Food Safety in RC No. 0130/03413/2020 Dt. 05.03.2020 along with annexure submitted by the F.S.O

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Ex.P-20: Copy of the report submitted by FSDO to the Commissioner of Food Safety in RC No. 0130/03413/2020 Dt. 05.03.2020 along with annexure recommendation prosecution dt. 14.02.2020

Ex.P21: Prosecution Orders in Rc.No.775/FSS-3/2019 Dt. 23.11.2020

Ex.P22: Details of F.B.O Aadhar Card No. 7579 2872 1342

Ex.P23 : Details of LW-2 A adhar Card No. 7392 9018 4687

Ex.P24: Copy of FSSAI No. 13616013000466.

Ex.P25: Attested copy of Rc .No. 540/FSS-1/2020 Dt.18.11.2020 delegation of power to sanction prosecution.

Ex.P26: Copy of Order dt. 23.03.2020 W.P.(CIVIL) No’s 3/2020 by Supreme Court.

For Defence: Nil.

Materials objects Marked: Nil.

I METROPOLITAN MAGISTRATE,

(MUNICIPAL COURT), HYDERABAD.

C.C NI No. 494/2024 1 /12

IN THE COURT OF THE I JUDICIAL MAGISTRATE OF FIRST CLASS

(MUNICIPAL COURT): HYDERABAD

Present: Smt. VADLURI SUSMITHA I Judicial Magistrate of First Class (Municipal Court), Hyderabad.

Dated this the 12th day of February, 2025

CALENDER CASE NI No. 494 of 2024

Between:

Kamatam Venkureddy, S/o. Venkataswamy Reddy, Age: 50 years, occ: CRM in Suvarnabhoomi Infra Pvt., Ltd., R/o. Singh’s Residency, H.No. 8-2-676/1/B/30/A/2, Sri Ram Nagar , road No. 12, Banjarahills, Hyderabad. 34. … Complainant

A N D

M/S. Abhi Marine Resources, Rep. By N. Banu Prasad, Occ: business, H.No. 16-7-130, Ramurthi nagar, Nellore 524001. … Accused

Section of Law: 138 of the Negotiable Instrument Act.

Plea of the accused : Pleaded not guilty

Finding of the court : In the result, the accused found not guilty for the offence Under Section 138 of the Negotiable Instruments Act 1881, as such the accused is acquitted U/S 255 (1) Cr.P.C for the said offence.

This case is came before me for final hearing in the presence of Sri. Jyothi Lakshmi, learned advocate for the complainant/State and Sri. MD.Ali & Associates, Counsel for accused, and having stood over till this day for consideration, this court delivered the following:

C.C NI No. 494/2024 2 /12

JUDGMENT

1.The complainant has filed the complaint agaisnt the accused under the provisions of 200 of Cr.P.C for the offence punishable U/S 138 of Negotiable

Instrument Act.

2.The factual matrix of the case is that:- The complainant and accused are well acquinted with each other since long time. The accused has approached the complainant for the hand loan. At request of the accused the complainant gave hand loan of Rs. 4,00,000/- on 20-07-2019 and accused agreed to discharge the liability and promised to repay the same in that connection accused has issued a cheque bearing No. 907034 dated 05-11-2019 for Rs. 86,000/- drawn on Andhra

Bank, Dargamitta branch, Nellore, AP.

3.Upon the assurance of the accused, the complainant has presented the said cheque dated 05-11-2019 with his banker Axis Bank, Banjarahills branch,

Hyderabad on 06-11-2019. But the same was dishonoured and returned unpaid for the reason “funds insufficient” vide cheque return memo dated 07-11-2019.

Therefore, a legal notice dated 18-11-2019 was also issued to the accused through RPAD the same was received by the accused on 22-11-2019. Inspite of receiving of legal notice the accused has failed to repay the cheque amount within the stipulated period and thereby committed an offence punishable U/S 138 of NI Act.

C.C NI No. 494/2024 3 /12

4.The complainant filed the complaint before Hon’ble XI Metropolitan

Magistrate Court, Hyderabad, on 10-01-2020 and numbered as STC NI 6558/2022

and the same is transferred to this court and renumbered as CC NI No.494/2024.

5.On appearance of accused, copy of complaint and documents filed along with complaint are furnished to accused.

6.The accused was examined U/S 251 Cr.P.C and accused denied the accusations mentioned in the complaint, pleaded not guilty for the offence punishable U/S 138 of Negotiable Instrument Act and claimed to be tried. Hence the trial. The complainant in order to establish his case has got examined as PW 1 and Ex.P 1 to P 6 were marked on behalf of the complainant through PW 1.

7.After closing of complainant evidence the accused was examined under section 313 Cr.P.C by notifing him the incriminating material against him from the evidence of complainant/PW 1 for which the accused denied the same and reported defence evidence, consequently accused got examined as DW1, then posted for arguments.

8.Heard the arguments of learned counsel of both sides. The learned counsel for complainant has also filed notes of arguments and memo with decisions.

C.C NI No. 494/2024 4 /12

9.In the light of the arguments canvassed by the learned counsel of both sides, I have carefully perused the oral and documentary evidence placed on record and also principles laid down in the decisions.

Now the points that would arise for my consideration are as under :-

1. Whether the subject cheque was issued for legally enforceable debt?

2. If so, to what order?

Before appraciating the facts of the case in detail for the purpose of decision, let

relevant position of law be discussed first .

For the offence U/S 138 of NI Act to be made out against the accused the complainant must prove the following points.

(I) Accused issued a cheque an account maintained by the with his banker

(ii) The said cheque has been issued in discharge , in whole or in part, of any legal debt or other liability.

(iii) The said cheques had been presented to the bank within a period of three months from the date of cheque or within the period of its validity.

(iv) The aforesaid cheque, when presented for encashment was returned unpaid/dishonoured.

(v) The payee of the cheque issued a legal notice of demand to the drawer within 30 days from the date of receipt of information by the bank regarding the return of cheque .

(vi) The drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.

C.C NI No. 494/2024 5 /12

10.The Act also raises to presumptions in favour of the holder of the cheque ie., the complainant:

Presumptions :-

11.Section 118 of Negotiable Instrument Act, unless the contrary is proves, it is to be presumped that the Negotiable Instrument (including cheque) has been made or drawn for consideration.

12.Section 139 of Negotiable Instrument Act the court has to presume, unless the contrary was proved, that the cheque or holder of the cheque received the cheque for discauyhrge, in whole or in pat of a debt or liability. Thuys, incomlaints U/S 138 of Negotiable Instrument Act the court hs to presume that the cheque has beenissued for a debt or liability. Thispresumption is rebuttal.

However, the burden of proving that a cheque has not been issued for a debt or liability is on the accused.

13. The main contention of the PW 1 is that he has lent an amount of Rs.

4,00,000/- to the accused and he received cheque of Rs. 86,000/-from the accused, also contended that accused has paid part payment of Rs.38,000/- but there remains outstanding balance. It is well settled law that to attract offence

U/ S 138 of NI Act., the cheque must be presented for a legally enforceable debt on the date of its presentation. It is mandatory that the cheque must be accurately reflect the amount of debt payable by the drawer. The cheque must

C.C NI No. 494/2024 6 /12

have drawn towards discharge of either whole or part of any debt or other liability.

14.Learned counsel for accused argued that accused received a sum of Rs.

86,000/- from the complainant on various dates and he also agreed to repay the same with 30% within one month and further stated that on 28.07.2019 accused has paid an amount of Rs. 20,000/- & 18,000/- and in last week of July he also paid 25,000/- to the complainant and no debt with regard to allegdly transacted amount of Rs. 4,00,000/-.

15. The learned counsel for accused extensively cross examined the complainant / PW 1. During cross examination PW 1, he admitted that he did not file any document to show that he has given hand loan of Rs. 4,00,000/- to the accused and also PW 1 admitted that as part payment accused has given Rs.

18,000/- and Rs. 20,000/- to him and further admitted that he received total amount of Rs. 38,000/- from the accused as part payment.

16.On perusing Ex P 3 legal notice it is admitted by the complainant the accused made a part payment of Rs. 18,000/- & Rs. 20,000/- on 20.07.2019 and issued a cheque bearing No. 907034 on 5.11.2019 for an amount of Rs. 86,000/- as part payment out of Rs. 3,62,000/-.

17.For a movement it is assumed that the versions of the complainant is

C.C NI No. 494/2024 7 /12

true that he has lent an amount of Rs. 4,00,000/- to the accused and received a cheque of Rs. 86,000/- in return. According to the complainant, accused has paid Rs. 38,000/- but there remains an outstanding balance .

18.Whereas the accused choose to lead evidence in his defence and examined as DW 1 and marked Ex D1 in his support. Thereafter the learned counsel for complainant also cross examined the accused.

19.The accused while deposing his evidence as DW 1 during his chief examination deposed that he know the complainant since twenty years and he took financial assistance from the complainant on different dates total amount of Rs. 84,000/- and promised to repay the same within one month with 30% . For the purpose of repayment of Rs. 84,000/-along with interest he has issued blank signed cheque to the complainant in the first week of July, 2019.

20.He further deposed that in last week of June, 2019 he has paid Rs.

25,000/- to the complainant by way of cash through one Mr. Venkat and on 20.07.2019 he has also paid Rs. 20,000/- and Rs. 18,000/- by way of bank transaction. He contended that he has paid total amount of Rs. 63,000/- to the complainant .

21.In support of his contention he has relied upon Ex D1 ie., whatsapp chat

C.C NI No. 494/2024 8 /12

between complainant and accused along with 65 B certificate. The learned counsel for complainant cross examined DW 1, during the cross examination he denied the suggestion that the payments were made as part payment of

Rs. 4,00,000/- also denied that he had issued subject cheque for the purpose of part payment of Rs. 4,00,000/- transaction. It is elicited from the cross examination of DW 1 that he has admitted his signature on the subject cheque.

22.On perusing the Ex D1 whatsapp chats it discloses that they are manually typed papers and Sec. 65 B certificate also does not disclose the name of the phone or details of the source from where they are extracted. On bare perusal it looks like that they are manually typed papers. If the whats app chats are really true the DW 1 would have furnish atleast screen shorts of the said conversation.

23.Hence, relience cannot be placed on document. Moreover there is no proof of part payment of Rs. 25,000/- to the complainant by accused. He simply stated that he has paid Rs. 25,000/- to the complainant by way of cash in the last week of June, 2019.However, there is no dispute with regard to the part payment of Rs. 18,000/- and Rs. 20,000/- as it is admitted by both the parties.

24.Upon perusal of entire evidence of DW 1 it can be said that he obtained

C.C NI No. 494/2024 9 /12

Rs. 86,000/- from the complainant and agreed to repay the same with 30% interest and also made part payment of Rs. 18,000/- and Rs. 20,000/- to the complainant as interest for final payment of actual amount he has issued cheque of Rs. 86,000/- to the complainant.

25.Moreover it is clear that he has issued a blank signed cheque and there is no dispute with regard to the signature of accused on the subject cheque.

The present case is filed based on Ex P 1 cheque. The version of DW 1 are consistent with the subject cheque and also consistent with regard to the part payments made by him.

26.For a moment it can be assumed that the assertion of complainant that he has lent an amount of Rs. 4,00,000/- to the accused is to be true and considered valid, it raises a significane questions regarding his failure to secure any written acknowledgement or receipt for the balance amount of

Rs. 4,00,000/- particulars following the accused repayment of Rs. 18,000/- and 20,000/- and the issueance of cheque of Rs. 86,000/-.

27.On perusing the entire evidence, except oral contention, the complainant has not provided any documentary evidence to sustantiate his claim that the 4,00,000/- is owed by the accued nor he has presented any receipts or acknowledgement letters for the total amount or the balance due. In the absence of documentary evidence casts doubt on the credibility of

C.C NI No. 494/2024 10 /12

the complainant’s assertion are separately specified.

The learned counsel for complainant has relied upon following judgments. They are (i) Suman Sethi Vs Ajay K Churiwal and (ii) Upasana

Mishra Vs Trek Technology India Pvt Ltd., on point that demand has to be made for the cheque amount and in a notice while giving the breakup of the claim the cheque amount interest, etc., are seperately specified and these

additional claims would be severable will not invalid date to the notice.

But the above judgments are not applicable to the present case and will not rescue the complainant as the complailnant demanded more than the cheque amounts. In the present case the cheque was presented is not legally enforceable debt as the complainant has received Rs. 38,000/- as part payment out of Rs. 86,000/- of cheque amount.

28.Hence accused cannot be prosecuted for dishonour of Ex P 1 cheque since as part of the debt was paid by the accused to the complainant.

29.Therefore, as debt under Ex P 1 cheque held to be not legally enforceable. It is held that all the essential ingredients are the mandatory requirements for an offence to be constituted U/S 138 of the Negotiable

Instruments Act, 1881, are held to be not satisfied there is no question of raising the presumption U/S 139 of the Negotiable Instruments Act, 1881 in favour of the complainant.

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30.Hence as the mandatory requirements for an offence to be constitued

U/S 138 of the Negotiable Instruments Act, 1881 are held to be not satisfied, the presumption U/S 139 of the Negotiable Instruments Act, 1881 cannot be raised as such the question of accused rebutting the presumption would not arise.

In view of the findings to point Nos (i) and (ii) this point is answered as here under:

In the result accused is found not guilty for the offence U/S 138 of the

Negotiable Instruments Act, 1881, and therefore the accused is acquitted U/S 255 (1) Cr.P.C. for the offence U/S 138 of NI Act. The surety bonds of the accused shall stand cancelled after laps of appeal .

Typed by Typist on my dictation, corrected and pronounced by me in the open Court, on this the 12th day of February, 2025.

Sd/-

I JUDICIAL MAGISTRATE OF FIRST CLASS

(MUNICIPAL COURT), HYDERABAD.

C.C NI No. 494/2024 12 /12

Appendix of Evidence

Witnesss Examined

For prosection: PW-1 : Venku Reddy

For defence: Nil. Documents Marked For Prosecution: Ex.P1: Original cheque bearing No. 907034 dated 05-11-2019 for Rs. 86,000/-

Ex.P2: cheque return memo dated 06-11-2019

Ex.P3: O/c of legal notice dated 18-11-2019

Ex.P4: two postal receipts dated 18-11-2019

Ex.P5: two postal acknowledgements

Ex.P6: reply notice dated 08-12-2019

For Defence: Nil.

Materials objects Marked: Nil.

Sd/-

I JUDICIAL MAGISTRATE OF FIRST CLASS

(MUNICIPAL COURT), HYDERABAD.