V.v.n.v Lakshmi

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IN THE COURT OF ADDITIONAL JUNIOR CIVIL JUDGE :

MANGALAGIRI

PRESENT: Smt.V.V.N.V.Lakshmi,

Additional Junior Civil Judge, Mangalagiri.

Wednesday, the 23rd day of December, 2020.

C.C.No.205 of 2016

Between :

Bandlamudi Saradhi S/o. Malleswara Rao, aged about 40 years, Hindu, Cultivation, R/o. 2nd Line, Vijayapuri, Guntur.

...Complainant.

And

Yarlagadda Prameela W/o. Narasimha Rao, aged about 40 years, Hindu, Business, R/o. 3rd Line, Naidupet, Guntur.

...Accused.

This case coming before me for final hearing on 22.12.2020 in the presence of Smt. M. Charulatha, Advocate for Complainant and of Sri Prathipati Nageswara Rao, Advocate for the Accused and upon hearing both sides and the matter having stood upon for consideration to this day, this Court delivered the following :

J U D G M E N T

1.The present complaint was filed by the complainant under Section 190 and 200 of Cr.P.C. against the accused under Sections 138 and 142 of the Negotiable

Instruments Act.

2.That the accused borrowed an amount of Rs.2,00,000/- on 2.2.2013 from the complainant for his family expenses and executed a promissory note in favour of the complainant on the even date agreeing to repay the same with interest @ 24% p.a., either to the complainant or his order on demand at Guntur.

Later the accused made a part payment of Rs. 10,000/- on 4.5.2013 and endorsed the same on the backside of the above said promissory note.

a) Inspite of repeated demands made by the complainant, the accused issued a cheque bearing No.203434 of UCO Bank, Mid Corporate, Guntur for Rs.

1,50,000/- dt.11.11.2013 towards the part payment of the above said debt.

Believing the representations made by the accused, the complainant presented the said cheque with his banker i.e., Corporation Bank, Mangalagiri Branch for collection on 12.11.2013. However the said cheque was returned unpaid to the 2 complainant with a return memo dt.13.11.2013 stating that the above said cheque was returned for the reasons” Account closed”. The complainant issued a notice dt.21.11.2013 to the accused demanding to discharge the amount under the above said cheque. The accused having received the said notice on 22.11.2013, failed to pay the cheque amount. Hence, the complaint.

3.This case was taken on file against the accused for the offence U/sec. 138 of Negotiable Instruments Act.

4.After appearance of accused, case copies and relevant documents were furnished to the accused as contemplated under section 207 of Criminal

Procedure Code, 1973.

5.The accused was examined under section 251 of Cr.P.C. Particulars of the offence punishable under Section 138 of the Negotiable Instruments Act is read over and explained to her in Telugu language, for which, she pleaded not guilty and claimed to be tried.

6.To substantiate its case, the prosecution examined P.ws.1 and 2 and got marked Exs.P1 to P.6 on its behalf.

7. After closure of prosecution evidence, the accused was examined U/s. 313

Cr.P.C. and the incriminating evidence from the testimony of P.ws.1 and 2 were read over and explained to her, for which, she denied the same and reported no defence evidence.

8.Heard arguments of both sides.

9. Now the points for determination is :-

Whether the complainant has proved the guilt of the accused beyond reasonable doubt that accused issued a cheque in favour of complainant in respect of legally enforceable debt, same is dishonored and inspite of issuance of notice by complainant 3 accused failed to repay the amount within 15 days and thereby committed an offence punishable under Section 138 of Negotiable Instruments Act?

10.Learned counsel for the complainant argued that to prove their case, they have examined Pws. 1 and 2 and got marked Exs. P1 to P6. Accused has taken the defence that Exs.P1 and P2 were issued in respect of chit transaction to one

Narasimha Rao and basing on that the complainant filed this case without any locus-standi. Except bare contention, the accused failed to rebut the presumption in favour of complainant either by cross examining Pws. 1 and 2 or by adducing evidence on her behalf. On the other hand, Ex.P1 reveals that accused is indebted to the complainant and Ex.P2 was issued in respect of a legally enforceable debt. On perusal of Ex.P4, it divulges that cheque was dishonored with an endorsement of “Account closed”. Inspite of issuance of

Ex.P5 legal notice accused did not repay the amount. Thus, the documentary evidence coupled with oral evidence clinchingly establishes the case of the complainant beyond reasonable doubt. Hence, prayed this Hon'ble Court to convict the accused.

11.Learned defence counsel vehemently argued that Exs.P1 and P2 were issued to one Narasimha Rao in a chit transaction, the said Narasimha Rao got filed this suit through the complainant. The complainant is not aware of the facts of this case. The said fact draws support from the cross-examination of Pw.1 wherein she has deposed that notice was issued to the accused through her counsel by name Smt. M. Charu Latha whereas, it is evident from the record that notice was issued to the accused by an Advocate Sri Konda Siva Reddy. This itself shows that complainant had no knowledge either about the transaction or about this case. Further, complainant failed to establish the means of income which was given to accused as loan. Thus, it is fatal to the case of complainant. By cross-examining Pws. 1 and 2, accused successfully rebutted the presumptions in favour of the complainant and created suspicion over the case of the complainant. Further complainant failed to comply the Proviso of Section 138 of

N.I Act. Hence, accused prayed this Hon'ble Court to acquit the accused.

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12. Section 138 of Negotiable Instruments Act reads as here under:-

Section 138 of N.I Act:- “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 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 provision 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----.

(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 is 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 purpose of this section, “ debt or other liability” means a legally enforceable debt or other liability.

13. Point:

In support of the case of the complainant, the complainant during her evidence as Pw.1 in chief-examination re-iterated the averments mentioned in the complaint. During cross-examination, Pw.1 deposed that she had given loan to 5 accused from the income derived from cultivation. She does not have evidence for procurement of amount to give loan. She did not file any civil suit basing on

Ex.P1. She issued Ex.P5 on 21.11.2013 through her counsel by name Smt. M.

Charulatha. Notice was served to accused. After receipt of notice by accused she filed this case after one week. She lent amount to accused on 2.2.2013. Herself, accused, attestor and scribe were present at the time of Ex.P1 transaction which was taken place at her house. She does not have license for finance business and she is not an income tax assessee. She denied all the suggestions given by defence counsel that she does not know the accused, one Narasimha Rao got filed this suit through Advocate by name K. Siva Reddy, she does not know the facts of this case and Nara Simharao failed to return Exs.P1 and P2 after payment of chit amount. She also denied the suggestion that accused never issued cheque to her and she never borrowed amount of Ex.P1.

14.One N. Srinivasa Rao was examined as Pw.2, in chief examination he deposed that he was present at the time of Ex.P1 transaction and Ex.P1 transaction taken place in his presence i.e., passing of consideration under

Ex.P1, execution of Ex.P1 by accused and attestation of Ex.P1 by him. During cross-examination, he deposed that complainant is doing cultivation at

Tadikonda. He can identify the accused. He does not know the purpose for which loan was obtained. One P. Bhaskara Rao scribed the promissory note, he does not know Narasimha Rao. He denied the suggestion given by defence counsel that this complaint was filed by Narasimharao through complainant.

15.It is the contention of the accused that Exs.P1 and P2 were taken by

Narasimharao by accused during chits transaction. Inspite of cross-examination of Pws. 1 and 2, they categorically deposed that they do not know Narasimha

Rao. It is not the case of the accused that blank promissory note and blank cheque were issued to Narasimha Rao. If at all, Exs.P1 and P2 were issued to

Narasimharao how the name of accused appeared on Exs.P1 and P2 and on part payment endorsement. More particularly, the signatures on Exs.P1 and P2 were 6 not denied by the accused. Further, it is the evidence of Pws. 1 that Ex.P1 transaction taken place and Ex.P1 was executed by the accused on receipt of consideration under Ex.P1. Pw.2 also categorically supported the case of the complainant in this respect. Hence, this Court vividly infer that Ex.P1 transaction taken place and Ex.P1 was handed over the accused duly filled at the time of transaction and Ex.P2 was issued by accused towards legally enforceable debt.

16.The other contention of the accused is that complainant failed to establish the means of income to the amount given as loan to accused.

In Basalingappa Vs. Mudibasappa, dated 09.04.2019 at

Paragraph No.24. where in it was observed by Hon'ble Supreme Court of

India that “when financial capacity to pay Rs. 6 lakhs to the accused was questioned, there was no satisfactory reply given by the complainant. The evidence on record, thus it is a probable defence on behalf of accused, which shifted the burden on the complainant to prove his financial capacity and other facts.”

17.Pw.1 deposed that she had given loan to accused from the income derived from cultivation. Pw.2 deposed that Pw.1 was doing cultivation at

Tadikonda. It is not obviously possible to every cultivator to maintain accounts in respect of the income derived from field produce and it is an acceptable truth in

India. In these circumstances, the reasons adduced by complainant and the means stated by the complainant seems to be plausible. Hence, this contention of the accused is also held not tenable.

18.Complainant gave the whole evidence in chief and cross-examination in categorical terms. Wrong mentioning of Advocate name itself does not throw the evidence of Pw.1 into suspicion. She might have consulted one Advocate and the other Advocate in the same firm or other Advocate with friendship might have filed this case after taking memo of appearance. Therefore, this part of 7 evidence of Pw.1 is not fatal to the case of the complainant.

19.Thus, from the above discussion and evidence of Pws. 1 and 2 coupled with Ex.P1 and part payment endorsement, complainant established that accused borrowed an amount under Ex.P1. From the evidence of Pw.1 coupled with Exs.P1 to P4 complainant established that Ex.P2 was issued by the complainant in respect of a legally enforceable debt and the same is dishonoured with an endorsement of “account closed”. Ex.P5 reveals that after dishonour of cheque complainant duly issued notice to accused and accused received the same. The accused did not expressly deny the receipt of notice at any point of time.

20.The notice was received by accused on 22.11.2013 and then this case was filed on 27.11.2013. Pw.1 during cross-examination deposed that after receipt of notice by accused, she filed this case after one week.

21.According to Section 138 proviso (c) of Negotiable Instruments Act, if the drawer of such cheque fails to make payment of money within 15 days of receipt of said notice, according to Section 142 (I) (b) of Negotiable Instruments

Act such complaint is made within one month of the date on which cause of action arises under Section-(c) of the Provision of Section 138 of Negotiable

Instruments Act.

22.On conjoint reading of above sections, it reveals that complainant has to file the complaint within one month after cause of action arises under Clause

(c) of Proviso of Section 138 of Negotiable Instruments Act i.e., if drawer of cheque failed to make payment within 15 days after receipt of notice. In this case, notice was received on 22.11.2013 and the case was filed on 27.11.2013

Thus, apparently complainant failed to give statutory period of 15 days to accused after receipt of notice to repay the amount.

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In Dashrath Rupsingh Rathod Vs. State of Maharashtra & Another

dt.01.08.2014 Hon'ble Supreme Court of India observed that :

" A proper understanding of the scheme underlying the provision would thus make it abundantly clear that while the offence is complete upon dishonour, prosecution for such offence is deferred till the time the cause of action for such prosecution accrues to the complainant. The proviso in that sense, simply postpones the actual prosecution of the offender till such time he fails to pay the amount within the statutory period prescribed for such payment. There is, in our opinion, a plausible reason why this was done. The parliament in its wisdom considered it just and proper to give to the drawer of a dishonoured cheque an opportunity to pay up the amount, before permitting his prosecution no matter the offence is complete, the moment the cheque was dishonoured. The law has to that extent granted a concession and prescribed a scheme under which dishonour need not necessarily lead to penal consequence if the drawer makes amends by making payment within the time stipulated once the dishonour is notified to him. Payment of the cheque amount within the stipulated period will in such cases diffuse the element of criminality that Section 138 attributes to dishonour by way of a legal fiction implicit in the use of the words--”shall be deemed to have committed an offence”. The drawer have committed an offence”.

The drawer would by such payment stand absolved by the penal consequences of dishonour. This scheme may be unique to Section 138 of N.I Act, but there is hardly any doubt that the parliament is competent to legislate so to provide for situations where a cheque is dishonoured even without any criminal intention on the part of the drawer.

The scheme of section 138 thus not only saves the honest drawer but gives a chance to even the dishonest ones to make amends and escape prosecution.

Compliance with the provision is, in that view, a mandatory requirement.

Harman in that view correctly held that “what would constitute an offence is stated in the main provision. The proviso appended thereto however imposes 9 certain further conditions which are required to be fulfilled before cognizable of the offence can be taken”. If the parliament intended to make the conditions stipulated in the proviso, also as ingredients of the offence, the provision would have read differently. It would then have specifically added the words and “ and the drawer has despite receipt of a notice demanding the payment of the amount, failed to pay the same within a period of fifteen days from the date of such demand made in writing by a notice”. That, however, is not how the enacting provision of Section 138 reads. The legislature has, it is obvious, made a clear distinction between what would constitute an offence and what would give to the complainant the cause of action to file a complaint for the Court competent to take cognizance. That a provision is an exception to the general rule is well settled. A provision is added to an enactment to qualify or create an exception to what is contained in the enactment. It does not by itself state a general rule. It simply qualifies the generality of the main enactment, a portion which but for the proviso would fall within the main enactment.

To Sum Up :

(i).An offence under section 138 of the Negotiable Instruments Act, 1881 is committed no sooner a cheque drawn by the accused on an account being maintained by him in a bank for discharge of debt/liability is returned unpaid for insufficiency of funds or for the reason that the amount exceeds the arrangement made with the bank.

(ii).Cognizable of any such offence is however forbidden under section 142 of the Act except upon a complaint in writing made by the payee or holder of the exchequer in due course within a period of one month from the date the cause of action accrues to such payee or holder under clause © of proviso to

Section 138.

(iii). The cause of action to file a complaint accrues to a complainant/payee/holder of a cheque in due course if

(a).the dishonoroued cheque is presented to the drawee bank within a period of six months from the date of its issue.

(b) If the complainant has demanded payment of cheque amount within 10 thirty days of receipt of information by him from the bank regarding the dishonour of the cheque and

(c) If the drawer has failed to pay the exchequer amount within fifteen days of receipt of such notice.

(iv) The facts constituting cause of action do not constitute the ingredients of the offence under section 138 of the N.I Act.

(v) The proviso to Section 138 simply postpones/defers institution of criminal proceedings and taking of cognizance by the Court till such time cause of action in terms of clause (c) of proviso accrues to the complainant.

(vi). Once the cause of action accrues to the complainant, the jurisdiction of the Court to try the case will be determined by reference to the place where the cheque is dishonoured."

23. In view of above discussion and ratio-decidendi of the Hon'ble Supreme

Court of India, this Court undoubtedly holds that since complainant failed to give 15 days time to accused before filing this complaint cause of action as contemplated under Section 138 (c) proviso of Negotiable Instruments Act was not arise and this case is liable to be dismissed and accused is to be acquitted .

24. In the result, the accused is found not guilty of the offence punishable under sections 138, 142 of Negotiable Instruments Act and accordingly she is acquitted for the same under Section 255 (1) of Cr.P.C. The bail bonds of the accused are ordered to be in force for a period of six months along with surety bonds as per Section 437-A Cr.P.C.

Dictated to the Stenographer Grade-III, transcribed by her, corrected and

pronounced by me in the open Court on this the 23rd Day of December, 2020.

Sd/-Smt.VVNV. Lakshmi.

ADDITIONAL JUNIOR CIVIL JUDGE,

MANGALAGIRI.

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APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Complainant :

Pw1: Bandlamudi Saradhi Pw2: N. Srinivasa Rao

For Defence:None

DOCUMENTS MARKED

For complainant :

Ex.P.1 is the original promissory note dated 2.2.2013. Ex.P.2 is the original cheque bearing No.203434, dated 11.11.2013. Ex.P3 is original counter foil of Corporation bank, Manglagiri, dated 12.11.2013. Ex.P.4 is the return memo dated 13.11.2013. Ex.P.5 is the office copy of legal notice dated 21.11.2013 Ex.P.6 is the postal acknowledgement dated 22.11.2013.

For Defence:NIL

Sd/-Smt.VVNV. Lakshmi.

ADDITIONAL JUNIOR CIVIL JUDGE,

MANGALAGIRI.

//True Copy//

Addl. Junior Civil Judge,

Mangalagiri.

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CALENDAR AND JUDGMENT

IN THE COURT OF THE ADDITIONAL JUNIOR CIVIL JUDGE ::

MANGALAGIRI

Calendar in C.C.205 of 2016

Date of Offence :02.02.2013 Date of arrest of Accused : - Date of Release of accused on bail : - Date of commencement of Trial :04.02.2020 Date of close of Trial : 17.03.2020 Date of sentence or order : 23.12.2020 Crime No. and Name of P.S. :Private complaint Name of the Complainant :

Bandlamudi Saradhi S/o. Malleswara Rao, aged about 40 years, Hindu, Cultivation, R/o. 2nd Line, Vijayapuri, Guntur.

And

Description of the accused.:

Yarlagadda Prameela W/o. Narasimha Rao, aged about 40 years, Hindu, Busienss, R/o. 3rd Line, Naidupet, Guntur.

Explanation for delay : On 5.3.2016, record is received by transfer from the Special Judicial Magistrate of I Class for Proh., & Excise, Guntur, as per the Negotiable Instruments (Amendment) Ordinance, 2015 in Dis No.1496, dt.21.8.2015 and the same is renumbered as CC NO.205/2016 on the file of Junior Civil Judge's Court, Mangalagiri. The case is posted from time to time and posted on 4.2.2020 for examination of Pw.1. On 4.2.2020 Exs.P1 to P6 marked and Pw.1 was cross-examined. On 14.2.2020 Pw.2 chief filed. On 11.3.2020 Pw.2 cross examined. On 19.10.2020 Accused is examined under Section 313 Cr.P.C. On 14.12.2020 complainant's side arguments heard. On 22.12.2020 defendant side arguments heard. On 23.12.2020 Judgment pronounced. Hence, the delay.

Section of Law : U/Section 138 of N.I.Act Finding of Court : Found not guilty

Sentence or Order :

In the result, the accused is found not guilty of the offence punishable under sections 138, 142 of Negotiable Instruments Act and accordingly she is acquitted for the same under Section 255 (1) of Cr.P.C. The bail bonds of the accused are ordered to be in force for a period of six months along with surety bonds as per Section 437-A Cr.P.C.

Sd/-Smt.VVNV. Lakshmi.

ADDITIONAL JUNIOR CIVIL JUDGE,

MANGALAGIRI.

Copy submitted to: The Hon’ble Chief Judicial Magistrate, Guntur.

//True Copy//

Addl. Junior Civil Judge,

Mangalagiri.

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IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE :: PONNUR

Present:Smt.V.V.N.V.Lakshmi Prl. Junior Civil Judge, Ponnur

Thursday, this the 29th day of August, 2019.

O.S. No. 103 / 2017

Between:

1. Kesineni Seethamma @ Seetharavamma W/o Late K.Veeraiah, Hindu, aged about 60 years, R/o Armanda Village of Ponnur Mandal, Guntur District.

2. Kesineni Srinivasa Rao, S/o late K.Veeraiah, Hindu, aged about 40 years, Coconut Business, R/o Armanda Village of Ponnur Mandal, Guntur District.

... Plaintiffs

and

1. Besabathina Venkateswara Rao, S/o late Seetharamaiah, Hindu, aged about 50 years, Cultivation and Political Leader, R/o Armanda Village of Ponnur Mandal, Guntur District.

2. Besabathina Poorniah, S/o late Ramaiah, Hindu, aged about 70 years, Political Leader, R/o Armanda Village of Ponnur Mandal, Guntur District.

3. Indla Mangamma, W/o not known, Hindu, Presently working as a Surpanch of Armanda Panchyathi, R/o Armanda Village of Ponnur Mandal, Guntur District.

4. Sri Mandala Parishad Development Officer, Ponnur Town and Mandal, Guntur District.

5. The Tahsildar, Ponnur Mandal, Guntur District.

6. The Divisional Panchyathi Officer, Tenali Town, Guntur District.

7. District Collector, Guntur Town and District.

8. The Chairman, District Project Committee, Guntur District.

9. The Revenue Divisional Officer (R.D.O) Tenali Town, Guntur District.

10. The Armanda Gram Panchayat, Represented by its Panchayat Secretary, Armanda Village, Ponnur Mandal, Guntur District. … Defendants

This case is coming on 28-08-2019 in the presence of Sri I.Suresh Babu, Advocate for the plaintiffs and of Sri.V.Leelaw Prasad, Advocate for the defendants 1 to 3 and of Sri Assistant Government Pleader, Advocate for the 4th defendant and 5 to 10 defendants were set exparte and upon considering the material on record and having stood over this day for consideration, this court delivered the following :-

J U D G M E N T

The present suit was filed by the plaintiff praying this Hon’ble court to declare themselves as owners of plaint schedule property and consequential relief of permanent injunction.

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2.Brief facts of the plaintiff's case are as follows :- a. Originally suit schedule property belongs to one M.Punnaiah, 1st plaintiff's husband purchased the same from Punnaiah at about 46 years ago. During the life time of P1’s husband he executed a Will in favour of plaintiffs and died on 18.08.2008. The said facts were proved by plaintiffs in O.S.No.67/2011 which was filed by them against one

G.Saibaba and SK.Saidulu and decreed on 21.03.2017.

b. D3 issued notice on 27.06.2017 to the plaintiffs to vacate suit schedule land within a week days. Later on D10 issued notices on 20.09.2017 and 16.08.2017 demanding the plaintiff to vacate the suit schedule land. D10 also issued notice on 20.09.2017. Thus 4th and 10th defendants are giving threat to plaintiffs, without following due procedure of law. Thereupon plaintiffs issued reply notice to D4 and

D10 and also approached Hon’ble High Court of Andhra Pradesh on 15.09.2017 and the Hon’ble Court pleased to grant stay for a period of 30 days.

C. Plaintiffs are residing in the suit schedule property for more than 46 years and they are paying necessary taxes to the government regularly and also paying electricity bills. The defendants who have no manner of right over the suit schedule property proclaimed in the village from 10 days onwards, that they are going to demolish the house in plaint schedule property. Hence, the suit.

3.a. D1 filed written statement and same is adopted by D2 and D3 and they further submitted that O.S.No.67/2011 was not filed against this defendants and therefore the decree of permanent injunction granted by the Hon’ble Court in O.S.No.67/2011 is not binding on defendants herein. The plaintiffs got filed the present suit with false boundaries.

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The boundaries mentioned in O.S.No.67/2011 were not tallying with the boundaries of the plaint schedule property. The plaintiffs encroached 1¼ cent site only which is on the eastern side of the panchayat office in the year 2000 and raised a thatched house therein. Plaintiffs intentionally mentioned the entire 4½ cents site as plaint schedule property by suppressing the real facts, from time immemorial the Aremanda

Panchayat office is in existence in an extent of Ac.0.04½ cents in

D.No.68 which was marked as Gramakantam poramboke. Old building of panchayat office was removed in order to construct new building in the same place. At this juncture the then Sarpanch and the then Panchayat

Secretary requested the plaintiffs herein to vacate the part of plaint schedule property. Plaintiffs are not in possession of whole of the plaint schedule property and they encroached 1 ¼ cents in plaint schedule property. Plaintiffs have no right over plaint schedule property. Hence,

D1 to D3 prayed to dismiss the suit.

4.a. D10 filed written statement and same is adopted by D4 to D9, they further submitted that according to the decree passed by the Hon’ble

Court in O.S.No.67/2011, the plaintiffs can continue in the suit schedule property till their eviction by due process of law. The decree was not granted against D4 to D10 herein and not binding on them.

b. Since time immemorable Grama panchayat building is situated in

Ac.0.04 ½ cents site in D.No.68. The Gram panchayat decided to construct a new building by removing the old one. Then panchayat passed a resolution on 02.12.2010 and accordingly removed the old building.

c. Plaintiffs encroached the above said property only in an extent of 1 cent and 8 sq.yards in suit schedule property towards the East of the 4 panchayat office approximately in the year 2000 and raised brick walled thatched house. Plaintiffs are paying cist to that extent only. The plaintiffs are encroachers in the suit schedule property.

d. The extent of the property is wrongly mentioned as 3½ cents with malafide intention. But it is only 1 ¼ cent among the boundaries as mentioned in the alleged Will dated.10.07.2008.

e. It is further submitted that again funds were sanctioned for the construction of gram panchayat building as per R.C.No.695/2017/B dated.17.06.2017 issued by District Collector Guntur under the Scheme of Upadhi Hami Pathakam. The existence of the thatched house in the suit schedule property is very inconvenient for the construction of gram panchayat building and the plaintiffs are obstructing the construction with their evil acts. So the 3rd defendant issued notice to the plaintiffs on 27.06.2017 to vacate the property i.e., the schedule property mentioned in O.S.No.67/2011 within a week days. Later on 29.07.2017 the 10th defendant issued notice to the plaintiffs to vacate the same property within 15 days from date of receipt of that notice. Again the 10th defendant issued notice on 16.08.2017 to vacate the same land within 7 days from the date receipt of that notice. Again the 10th defendant issued notice on 28.08.2017 ultimating the plaintiffs to vacate the same property. All this process was done as per procedure in accordance with law. Meanwhile 4th defendant issued a patta granting a plot to an extent of one cent in favour of the plaintiffs in S.No.67/1B, 4, 5A of Aremanda Grama Panchayat as part of evicting them.

f. It is further submitted that on 13.07.2017 the plaintiffs issued reply notice only to 3rd defendant and send copies to 3rd, 4th and 5th defendants but not to 10th defendant, with all false allegations. Then 5 they approached the High of Judicature at Hyderabad and filed a writ petition 30616/2017 and the same is disposed restraining the defendants herein from taking further action for a period of 30 days from date of disposal of the petition and the 10th defendant herein shall pass a reasoned order by considering defendant herein but has not received the reply alleged to have been submitted by the plaintiffs herein, the plaintiffs herein are directed to submit a copy of the same within one week from the date of receipt of the order. Without sending copy of the notice dated.13.07.2017 to 10th defendant, the plaintiffs sent another notice by mentioning the defendant. In this case the 10th defendant has to pass the reasoned order with regard to suit schedule property and suppressing the same, the plaintiffs filed this false suit.

g. It is further submitted that the adverse possession of the plaintiffs against the Government over the suit schedule property does not arise in this case. The plaintiff filed his suit with false boundaries with regard to the suit schedule property. Hence, D4 to D10 prayed to dismiss the suit.

5. Issues:-

1. Whether plaintiffs are entitle to the relief of declaration as prayed for?

2. Whether plaintiffs are entitle to the relief of permanent injunction as prayed for?

3. To what relief?

6. Plaintiffs examined P.W.1 and P.W.2 and got marked Exs.A1 to A7.

7. D.W.1 and D.W.2 were examined on behalf of defendants 1 to 3 and no evidence was adduced by D4 to D10.

8.D4 to D9 failed to cross-examine DW2 and were set exparte on 23.07.2019.

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9. Heard arguments on both sides.

10. Issue No1 & 2:- a. Plaintiffs pleaded that originally suit schedule property belongs to one M.Punnaiah and P1’s husband purchased the same. P1’s husband executed Will in favour of plaintiffs bequeathing plaint schedule property in their favour. Plaintiffs filed a suit in O.S.No.67/2011 and the above said facts were proved in such suit.

b. Defendants contended that suit schedule property belongs to government and the plaintiffs are mere encroachers of suit schedule property to an extent of 1¼ cent.

c. To prove their case plaintiffs examined PW1 and PW2 and got marked Ex.A1 to A7. PW1 and PW2 in chief examination deposed on the lines of plaint averments. PW1 during cross-examination deposed that she has been in possession of 3½ cents. She did not file any documents showing her title over plaint schedule property, there is no vacant site in 4 directions of her property. Panchayat constructed building in part of 3½ cents highhandedly. PW2 during cross-examination deposed that panchayat constructed panchayat office in 2½ cents and rest of land is in his possession. The boundaries of plaint schedule property in earlier suit is different from the boundaries of plaint schedule property herein.

There is no title document to claim title over plaint schedule property.

d. As deposed by PW1 and PW2 there is no piece of paper on record showing the title of plaintiffs over plaint schedule property. In

Ex.A3 this Hon’ble court held "The execution of Ex.A1 Will is said to be not proved", from this observation made by the court in earlier suit in 7

O.S.No.67/2011 this court opines that plaintiffs failed to establish alleged

Will in the earlier suit and their title therefrom. However the same is not filed in this suit. Nothing was elicited in favour of plaintiffs from DW1 and DW2 cross-examination.

e. Except oral evidence of PW1 and PW2 absolutely there is no other documentary and independent evidence on record corroborating the title of plaintiffs over plaint schedule property. Therefore this court undoubtedly holds that plaintiffs failed to establish their title over plaint schedule property and not entitled to the relief of declaration as prayed for.

f. Plaintiffs in this case pleaded for consequential relief of permanent injunction. Since this court held that plaintiffs are not entitle to relief of declaration this court opines that plaintiffs are not entitle to the consequential relief of permanent injunction.

g. Defendants 1 to 10 contended that plaintiffs are in possession of 1¼ cents of site in plaint schedule property and they are encroachers.

To establish their case D4 to D10 failed to any adduce before this court.

D1 and D2 were examined as DW1 and DW2. They deposed that they did not file any documentary evidence with respect to facts pleaded by them that plaintiff is in possession of 1¼ cents in plaint schedule property. They did not know about issuance of notice and filing of cases by panchayat authorities for alleged encroachment. They did not know about permission for construction of building. This evidence of DW1 and

DW2 go to show that they have no clear knowledge about the nature of possession of plaintiffs over plaint schedule property and the rights of panchayat authorities therein. Therefore this court opines that 8 defendants failed to establish their case by adducing clear and cogent evidence to the satisfaction of the court.

h. PW1 and PW2 deposed that panchayat constructed building in 3½ cents site. This evidence itself shows that plaintiffs are not in possession of plaint schedule property. Plaintiffs relied on Ex.A3 and A6 and A7 but as deposed by PW1 and PW2 the boundaries mentioned in

Ex.A3, A6 and A7 not tallied with plaint schedule boundaries. The assessment numbers mentioned in Ex.A1 and A2 not tallied with plaint schedule. Plaintiffs pleaded that they are in possession of plaint schedule property by paying necessary taxes. But no house tax receipt was filed by plaintiffs to prove their possession over plaint schedule property. In this case the oral and documentary evidence adduced by plaintiffs failed to corroborate their case. Hence, this court hereby holds that plaintiffs failed to prove their possession over plaint schedule property and thereby not entitled to the relief of permanent injunction.

Issue No.1 and 2 are answered against the plaintiffs.

11. Issue No.3:-

IN THE RESULT, this suit is dismissed without costs.

Dictated to the Stenographer, corrected and pronounced by me in

the Open court on this the 29 th day of August, 2019.

Sd/-V.V.N.V.Lakshmi

PRL. JUNIOR CIVIL JUDGE,

PONNUR.

APPENDIX OF EVIDENCE

WITNESS EXAMINED

For Plaintif:

P.W.1:- Kesineni Seethamma @ Seetharavamma

P.W.2:- Kesineni Srinivasa Rao 9

For Defendant:

D.W.1:- Besabathina Venkateswara Rao

D.W.2:- Besabathina Purnachandra Rao

Documents marked For plaintifs:-

Ex.A1 : is the Current demand notices twelve in number.

Ex.A2 : is the Current bill thirteen in number.

Ex.A3:is the Certified copy of Judgment and decree in

O.S.No.67/2011.

Ex.A4:is the Received copies of notices from 4th and 10th defendants number in 6.

Ex.A5:is the Office copy of the reply legal notice two in number.

Ex.A6:is the High Court Stay order copy, dated.11.09.2017.

Ex.A7:is the Office copy of plaint in O.S.No.67/2011.

For Defendants:-

Nil

Sd/-V.V.N.V.Lakshmi

PRL. JUNIOR CIVIL JUDGE,

PONNUR.

1

IN THE COURT OF ADDITIONAL JUNIOR CIVIL JUDGE :

MANGALAGIRI

PRESENT: Smt.V.V.N.V.Lakshmi,

Additional Junior Civil Judge, Mangalagiri.

Friday, the 23rd day of October,2020.

C.C.No.476 of 2020

Between :

State : Sub-Inspector of Police, Tadepalli P.S., Guntur Urban.

...Complainant.

And

1.Shaik Basha S/o. Maqbul, aged 37 years, Musli, Edga center, Nulakapet, Tadepalli Town.

2.Dhanikonda Dundeswar S/o. Anjaneyulu, aged 19 years, Edga center, Nulakapet, Tadepalli.

...Accused.

This case coming before me for final hearing on 16.10.2020 in the presence of learned Assistant Public Prosecutor for the Complainant and of Sri Malapati Surendra Babu, learned counsel for accused Nos. 1 and 2 and upon hearing both sides and the matter having stood upon for consideration to this day, this Court delivered the following :

J U D G M E N T

01.The Sub-Inspector of Police, Tadepalli Police Station, Guntur Urban filed charge sheet against accused Nos. 1 and 2 in Crime No.427 of 2020 for the offence punishable under Sections 188, 269, 270, 271 IPC and

Section 34(a) of A.P. Excise Act.

02. In brief, the case of the prosecution as unfolded in the charge sheet is stated as follows:

The Government of Andhra Pradesh issued orders vide G.O.Rt.No.119,

HM & FW (B2) Dept, Dt:11.03.2020, G.O.Rt.No.205, HM&FW (B2) Dept.

Dt.11.03.2020 and G.O.Rt.No.203, HM&FW (B2) Dept. Dt.21.03.2020 for

Lock Down in the Andhra Pradesh state till 14.03.2020 for preventing the

Covid-19 (Corona virus) Pandemic and issued to orders, LW.6-A. Srinivasa

Rao, Sub-Inspector of Police, Tadepalli P.S., while moving in the town along

2

with LWs. 1 and 2 (Y.Naga Srinivasa Rao and A. Ganga Raju respectively) received information regarding illegal possession of liquor and secured Lws.

3 and 4 (Kancharla Ramana Babu and Bhupathi Siva Satya Kishore respectively) and reached to Edga center, Nulakapet, Tadepalli Mandal both the accused having plastic black bag and selling liquor without out wearing mask in open place and without taking any precautions likely spread the corona virus and violating the rules of Government dually promulgated by public servant. On seeing the police, they tried to fled away from the scene of offence. Later Lw.6 with the assistance of his staff accused were apprehended and found Malabar House VOSP Brandy whisky quarter bottles-7 and White & Blue Rare OAK Whisky Quarter bottles-4, and he seized liquor bottles. Basing on the mediatornama, LW.6 registered as a case in Crime No.427/2020 under Sections 188, 269, 270, 271 IPC and 34 (A) of A.P Excise Act. During the course of investigation, LW.6 visited the scene of offence, prepared rough sketch, examined the witnesses and recorded their detailed statements under section 161 (3) of Cr.P.C. During the course of investigation, Lw.5-B. Bhargav, Sub-Inspector of Police,

Tadepalli P.S., forwarded material objects to chemical examiner,

Pro.&.Excise Department, Regional Prohibition and excise laboratory,

Guntur and the report was obtained by LW.6 on 15.9.2020 and seized samples are containing alcohol and it is Indian Liquor. After completion of investigation, the Sub-Inspector of Police filed charge sheet.

03.This case was taken on file against accused for the offence punishable under Sections 269, 270, 271 IPC and Section 34 (a) of A.P. Excise Act.

04.After appearance of accused, case copies and relevant documents were furnished to them as contemplated under section 207 of Criminal

Procedure Code, 1973.

3

05.Accused were examined under section 239 of Cr.P.C., and a charge under Sections 269, 270, 271 IPC and under section 34(a) of A.P. Excise

Act, 1968 was framed against accused and the contents of the charge are read over and explained to them in Telugu language, for which they pleaded not guilty and claimed to be tried.

06. To substantiate its case, the prosecution examined P.Ws. 1 and 2 and got marked Exs.P1 to P.4 and MOs.1 and 2 on its behalf.

07.After closure of prosecution evidence, accused were examined U/s.

313 Cr.P.C. and the incriminating evidence from the testimonies of P.Ws.1 and 2 were read over and explained to them, for which, they denied the same and reported no defence evidence.

08.Heard the learned APP for State and the learned counsel for accused.

09. Now the point for determination is:-

Whether the accused possessed or sold any intoxicant in contravention of provisions of Excise Act without any valid license or permit and thereby committed offence punishable under Section 34 (a) of

A.P.Excise Act, 1968?

10.The learned APP fairly contended that the matter may be decided on merits. On the other hand, the learned defence counsel contended that the prosecution failed to follow the procedure for search and seizure of alleged contraband and that no efforts were made to secure independent witnesses, that itself shows the police foisted false case against the accused for their statistical purpose and as there is no testimony of independent witness, a benefit of doubt can be extended to the accused and they may be acquitted.

4

11. Section - 34(a) reads as follows as hereunder:

Penalties for illegal import etc .:- Whoever, in contravention of this

Act or of any rule, notification or order made, issued or passed thereunder or of any license or permit granted or issued under this

Act:-

a) imports, exports, transports, manufactures, collects or possesses or sells any intoxicant, established or continued under this Act shall on conviction be punished.

12.According to the prosecution case, accused possessed liquor bottles and tried to sell the same in contravention of provisions of Excise Act and thereby committed an offence punishable under Section 34(a) of A.P. Excise

Act, 1968.

13. P.Ws.1 and 2 in chief examination staunchly supported the prosecution case. P.W. 1 in his cross-examination has deposed that, the scene of offence is a four roads junction and liquor bottles are duty paid.

Basing on Ex.P.1 mediators report, PW2 registered the crime and arrested the accused and after receiving the analyst report. After completion of further investigation, he filed charge sheet.

14.It is the case of the prosecution is that accused selling liquor without wearing mask in open place and without taking any precautions likely spread the corona virus and violating the Rules of Government duly promulgated by public servant. It is further the case of the prosecution that the accused confessed that they possessed the liquor to sell the same at a higher price. This part of evidence deposed by P.Ws.1 and 2 with regard to

5

the confession cannot be received into evidence because of Section 25 of the Indian Evidence Act, wherein it is clearly stated that confession made to a Police Officer is not admissible. This part of evidence with regard to confession either in the evidence of P.Ws.1 and 2 or in Ex.P.1 is held inadmissible. According to Section 118 of the Indian Evidence Act, 1872 every person is competent to testify. The evidence of P.W1 and P.W.2 clearly supported the prosecution case and remained unshattered as to the facts witnessed by them.

15.P.Ws.1 and 2 categorically deposed that they witnessed the possession of liquor by accused and they seized them. But, according to

Section 59 of A.P. Excise Act, 1968, the police at the time of seizure of property, must follow the procedure enshrined in Section 100(4) of

Cr.P.C. i.e., the police shall secure the presence of independent witnesses and during their presence as mediators, the police shall seize the contraband. But, there is no piece of evidence on record that police tried to secure the presence of independent witnesses. No reason was specified either in the charge sheet or in the prosecution evidence for non-issuance of written notices to the persons around the scene of offence. P.W.1 deposed that the scene of offence is a four roads junction. At this juncture, it is pertinent to note that, the non-presence of independent witnesses creates doubt as to the genuineness of case of prosecution. The failure of the prosecution to comply Section 59 of A.P. Excise Act and Section 100(4) of

Cr.P.C. adds strength to the argument on behalf of the accused that an hefty attempt was made by the police to drag the accused into the alleged web of crime.

16.No independent witnesses were present and were examined in this case. Except police officials, no other independent evidence supported the

6

prosecution case. MOs.1 and 2 and Ex.P.3 merely shows that the contraband seized is Indian made liquor, that itself does not mean that the accused possessed or sold the same. Absolutely there is no evidence on record that accused selling liquor without wearing mask in open place and without taking any precautions likely spread the corona virus and violating the Rules of Government duly promulgated by public servant. Hence, prosecution failed to made out case against accused for the offences punishable under

Sections 269, 279, 271 IPC and under Section 34 (a) of A.P Excise Act.

Therefore, this Court opines that, prosecution failed to establish the guilt of the accused beyond all reasonable doubt and the accused are entitled for

Acquittal.

17. In the result, accused Nos. 1 and 2 are found not guilty for the offence punishable under Sections 269, 270, 271 IPC and under Section 34

(a) of A.P. Excise Act, 1968 and accordingly they are acquitted under

Section 248(1) of Cr.P.C . The bail bonds of the accused are ordered to be in force for a period of six months along with surety bonds as per Section 437-A Cr.P.C. MOs.1 and 2 shall be destroyed after lapse of appeal time.

Typed to my dictation to the Stenographer Grade-III, pronounced by me in the open Court on this the 23rd day of October, 2020.

Sd/-. Smt. VVNV. Lakshmi.

ADDITIONAL JUNIOR CIVIL JUDGE,

MANGALAGIRI.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution : Pw1: A. Ganga Raju Pw2: A. Srinivasa Rao

For Defence:None

DOCUMENTS MARKED

For Prosecution : Ex.P.1 Mediators Report Ex.P.2 First Information Report Ex.P3 Chemical Analysis report.

7

Ex.P4 Rough Sketch For Defence:NIL.

Material Objects Marked

MO1 is the Malabar House VOSP Brandy Whiskey sample bottle. MO2 is the White & Blue Rare OAK Whisky sample bottle.

Sd/-. Smt. VVNV. Lakshmi.

ADDITIONAL JUNIOR CIVIL JUDGE,

MANGALAGIRI.

//True Copy//

Additional Junior Civil Judge,

Mangalagiri

8

CALENDAR AND JUDGMENT

IN THE COURT OF THE ADDITIONAL JUNIOR CIVIL JUDGE ::

MANGALAGIRI

Calendar Case No. 476 of 2020

Date of Offence : 30.05.2020 Date of arrest of Accused : 30.05.2020 Date of Release of accused on bail : Section 41-A Cr.P.C., notice. Date of commencement of Trial : 15.10.2020 Date of close of Trial : 15.10.2020 Date of sentence or order : 23.10.2020 Crime No. and Name of P.S. : Cr.No.427 of 2020 of Tadepalli P.S., Guntur Urban.

Name of the Complainant : State: Sub-Inspector of Police, Tadepalli P.S., Guntur Urban.

Description of Accused :

1.Shaik Basha S/o. Maqbul, aged 37 years, Musli, Edga center, Nulakapet, Tadepalli Town.

2.Dhanikonda Dundeswar S/o. Anjaneyulu, aged 19 years, Edga center, Nulakapet, Tadepalli.

Explanation for delay : NIL Section of Law : U/Section 188, 269, 270, 271 IPC and under Section 34(a) of A.P. Excise Act,1968.

Finding of Court : Found not guilty

Sentence or Order :

In the result, accused Nos. 1 and 2 are found not guilty for the offence punishable under Sections 269, 270, 271 IPC and under Section 34

(a) of A.P. Excise Act, 1968 and accordingly they are acquitted under Section 248(1) of Cr.P.C . The bail bonds of the accused are ordered to be in force for a period of six months along with surety bonds as per Section 437-A Cr.P.C. MOs.1 and 2 shall be destroyed after lapse of appeal time.

Sd/- Smt. V.V.N.V.Lakshmi

ADDITIONAL JUNIOR CIVIL JUDGE,

MANGALAGIRI.

Copy submitted to: The Hon'ble Chief Judicial Magistrate,Guntur.

//True Copy//

Additional Junior Civil Judge,

Mangalagiri.

9

Absolutely there is no evidence on record pointing towards guilt of the accused for the offences levelled against him.

1

IN THE COURT OF ADDITIONAL JUNIOR CIVIL JUDGE :

MANGALAGIRI

PRESENT: Smt.V.V.N.V.Lakshmi,

Additional Junior Civil Judge, Mangalagiri.

Friday, the 23rd day of October,2020.

C.C.No.472 of 2020

Between :

State : Sub-Inspector of Police, Tadepalli P.S., Guntur Urban.

...Complainant.

And

Lokam Siva Nagaraju S/o. Ramakoteswara Rao, aged 35 years, C/Perika, Chiluvuru Village, Duggirala Mandal.

...Accused.

This case coming before me for final hearing on 16.10.2020 in the presence of learned Assistant Public Prosecutor for the Complainant and of Sri P. Nageswara Rao, learned counsel for the accused and upon hearing both sides and the matter having stood upon for consideration to this day, this Court delivered the following :

J U D G M E N T

01.The Sub-Inspector of Police, Tadepalli Police Station, Guntur Urban filed charge sheet against the accused in Crime No.413 of 2020 for the offence punishable under Sections 188, 269, 270, 271 IPC and Section 34(a) of A.P. Excise Act.

02. In brief, the case of the prosecution as unfolded in the charge sheet is stated as follows:

The Government of Andhra Pradesh issued orders vide G.O.Rt.No.119,

HM & FW (B2) Dept, Dt:11.03.2020, G.O.Rt.No.205, HM&FW (B2) Dept.

Dt.11.03.2020 and G.O.Rt.No.203, HM&FW (B2) Dept. Dt.21.03.2020 for

Lock Down in the Andhra Pradesh state till 14.03.2020 for preventing the

Covid-19 (Corona virus) Pandemic and issued to orders, LW.4-A. Srinivasa

Rao, Sub-Inspector of Police, Tadepalli P.S., while moving in the town along with staff and reached to the Bucking home canal bridge, Vaddeswaram

Village, Tadepalli Mandal, one person having black plastic bag his hand and

2

selling liquor without wearing mask in open place and without taking any precautions likely spread the corona virus and violating the rules of

Government dually promulgated by public servant. On seeing the police, accused tried to fled away from the scene of offence. Later Lw.4 with the assistance of his staff accused was apprehended and found 17- Old

Admiral Deluxe VSOP Brandy quarter liquor bottles in the bag, and he seized liquor bottles. Basing on the police proceedings, LW.4 registered as a case in Crime No.413/2020 under Sections 188, 269, 270, 271 IPC and 34 (A) of A.P Excise Act. During the course of investigation LW.4 visited the scene of offence, prepared rough sketch, examined the witnesses and recorded their detailed statements under section 161 (3) of Cr.P.C. During the course of investigation LW.3-B. Bhargav, Sub-Inspector of Police,

Tadepalli P.S., forwarded material objects to chemical examiner,

Pro.&Excise Department, Regional Prohibition and excise laboratory,

Guntur and the report was obtained by LW.4 on 15.9.2020 and seized sample is containing alcohol and it is Indian Liquor. After completion of investigation, the Sub-Inspector of Police filed charge sheet.

03.This case was taken on file against accused for the offence punishable under Sections 269, 270, 271 IPC and Section 34(a) of A.P. Excise Act.

04.After appearance of accused, case copies and relevant documents were furnished to him as contemplated under section 207 of Criminal

Procedure Code, 1973.

05.Accused was examined under section 239 of Cr.P.C., and a charge under Sections 269, 270, 271 IPC and under section 34(a) of A.P. Excise

Act, 1968 was framed against accused and the contents of the charge are

3

read over and explained to him in Telugu language, for which he pleaded not guilty and claimed to be tried.

06. To substantiate its case, the prosecution examined P.Ws. 1 and 2 and got marked Exs.P1 to P.4 and MO.1 on its behalf.

07.After closure of prosecution evidence, accused was examined U/s. 313

Cr.P.C. and the incriminating evidence from the testimonies of P.Ws.1 and 2 were read over and explained to him, for which, he denied the same and reported no defence evidence.

08.Heard the learned APP for State and the learned counsel for accused.

09. Now the point for determination is:-

Whether the accused possessed or sold any intoxicant in contravention of provisions of Excise Act without any valid license or permit and thereby committed offence punishable under Section 34 (a) of

A.P.Excise Act, 1968?

10.The learned APP fairly contended that the matter may be decided on merits. On the other hand, the learned defence counsel contended that the prosecution failed to follow the procedure for search and seizure of alleged contraband and that no efforts were made to secure independent witnesses, that itself shows the police foisted false case against the accused for their statistical purpose and as there is no testimony of independent witness, a benefit of doubt can be extended to the accused and he may be acquitted.

4

11. Section - 34(a) reads as follows as hereunder:

Penalties for illegal import etc .:- Whoever, in contravention of this

Act or of any rule, notification or order made, issued or passed thereunder or of any license or permit granted or issued under this

Act:-

a) imports, exports, transports, manufactures, collects or possesses or sells any intoxicant, established or continued under this Act shall on conviction be punished.

12.According to the prosecution case, accused possessed liquor bottles and tried to sell the same in contravention of provisions of Excise Act and thereby committed an offence punishable under Section 34(a) of A.P. Excise

Act, 1968.

13. P.Ws.1 and 2 in chief examination staunchly supported the prosecution case. P.W. 1 in his cross-examination has deposed that, the scene of offence is a four roads junction and liquor bottles are duty paid.

Basing on Ex.P.1 mediators report, PW2 registered the crime and arrested the accused and after receiving the analyst report. After completion of further investigation, he filed charge sheet.

14. It is the case of the prosecution is that accused selling liquor without wearing mask in open place and without taking any precautions likely spread the corona virus and violating the Rules of Government duly promulgated by public servant. It is further the case of the prosecution that the accused confessed that they possessed the liquor to sell the same at a higher price. This part of evidence deposed by P.Ws.1 and 2 with regard to the confession cannot be received into evidence because of Section 25 of

5

the Indian Evidence Act, wherein it is clearly stated that confession made to a Police Officer is not admissible. This part of evidence with regard to confession either in the evidence of P.Ws.1 and 2 or in Ex.P.1 is held inadmissible. According to Section 118 of the Indian Evidence Act, 1872 every person is competent to testify. The evidence of P.W1 and P.W.2 clearly supported the prosecution case and remained unshattered as to the facts witnessed by them.

15.P.Ws.1 and 2 categorically deposed that they witnessed the possession of liquor by accused and they seized them. But, according to

Section 59 of A.P.Excise Act, 1968, the police at the time of seizure of property, must follow the procedure enshrined in Section 100(4) of

Cr.P.C. i.e., the police shall secure the presence of independent witnesses and during their presence as mediators, the police shall seize the contraband. But, there is no piece of evidence on record that police tried to secure the presence of independent witnesses. No reason was specified either in the charge sheet or in the prosecution evidence for non-issuance of written notices to the persons around the scene of offence. P.W.1 deposed that the scene of offence is a four roads junction. At this juncture, it is pertinent to note that, the non-presence of independent witnesses creates doubt as to the genuineness of case of prosecution. The failure of the prosecution to comply Section 59 of A.P. Excise Act and Section 100(4) of

Cr.P.C. adds strength to the argument on behalf of the accused that an hefty attempt was made by the police to drag the accused into the alleged web of crime.

16.No independent witnesses were present and were examined in this case. Except police officials, no other independent evidence supported the prosecution case. MO.1 and Ex.P.3 merely shows that the contraband seized

6

is Indian made liquor, that itself does not mean that the accused possessed or sold the same. Absolutely there is no evidence on record that accused selling liquor without wearing mask in open place and without taking any precautions likely spread the corona virus and violating the Rules of Government duly promulgated by public servant. Hence, prosecution failed to made out case against accused for the offences punishable under

Sections 269, 270, 271 IPC and under sections 34 (a) of A.P Excise Act.

Therefore, this Court opines that, prosecution failed to establish the guilt of the accused beyond all reasonable doubt and the accused is entitled for

Acquittal.

17. In the result, accused is found not guilty for the offence punishable under Sections 269, 270, 271 IPC and under Section 34 (a) of A.P. Excise

Act, 1968 and accordingly he is acquitted under Section 248(1) of Cr.P.C .

The bail bonds of the accused are ordered to be in force for a period of six months along with surety bonds as per Section 437-A Cr.P.C. MO.1 shall be destroyed after lapse of appeal time.

Typed to my dictation to the Stenographer Grade-III, pronounced by me in the open Court on this the 23rd day of October, 2020.

Sd/- Smt. V.V.N.V.Lakshmi

ADDITIONAL JUNIOR CIVIL JUDGE,

MANGALAGIRI.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution : Pw1: A. Ganga Raju Pw2: A. Srinivasa Rao

For Defence:None

DOCUMENTS MARKED

For Prosecution : Ex.P.1 Police Proceedings Ex.P.2 First Information Report Ex.P3 Chemical Analysis report. Ex.P4 Rough Sketch

7

For Defence:NIL.

Material Objects Marked

MO1 is the Old Admiral Deluxe VSOP Brandy quarter liquor bottle.

Sd/- Smt. V.V.N.V.Lakshmi

ADDITIONAL JUNIOR CIVIL JUDGE,

MANGALAGIRI.

//True Copy//

Additional Junior Civil Judge,

Mangalagiri.

8

CALENDAR AND JUDGMENT

IN THE COURT OF THE ADDITIONAL JUNIOR CIVIL JUDGE ::

MANGALAGIRI

Calendar Case No. 472 of 2020

Date of Offence : 23.05.2020 Date of arrest of Accused : 23.05.2020 Date of Release of accused on bail : Section 41-A Cr.P.C., notice. Date of commencement of Trial : 15.10.2020 Date of close of Trial : 15.10.2020 Date of sentence or order : 23.10.2020 Crime No. and Name of P.S. : Cr.No.413 of 2020 of Tadepalli P.S., Guntur Urban.

Name of the Complainant : State: Sub-Inspector of Police, Tadepalli P.S., Guntur Urban.

Description of Accused :

Lokam Siva Nagaraju S/o. Ramakoteswara Rao, aged 35 years, C/Perika, Chiluvuru Village, Duggirala Mandal.

Explanation for delay : NIL Section of Law : U/Section 188, 269, 270, 271 IPC and under Section 34(a) of A.P. Excise Act,1968.

Finding of Court : Found not guilty

Sentence or Order :

In the result, accused is found not guilty for the offence punishable under Sections 269, 270, 271 IPC and under Section 34 (a) of A.P. Excise Act, 1968 and accordingly he is acquitted under Section 248(1) of Cr.P.C . The bail bonds of the accused are ordered to be in force for a period of six months along with surety bonds as per Section 437-A Cr.P.C. MO.1 shall be destroyed after lapse of appeal time.

Sd/- Smt. V.V.N.V.Lakshmi

ADDITIONAL JUNIOR CIVIL JUDGE,

MANGALAGIRI.

Copy submitted to: The Hon'ble Chief Judicial Magistrate,Guntur.

//True Copy//

Additional Junior Civil Judge,

Mangalagiri.

1

IN THE COURT OF ADDITIONAL JUNIOR CIVIL JUDGE :

MANGALAGIRI

PRESENT: Smt.V.V.N.V.Lakshmi,

Additional Junior Civil Judge, Mangalagiri.

Tuesday, the 20th day of October,2020.

C.C.No. 270 of 2020

Between :

State : Prohibition & Excise Inspector,

Mangalagiri. ...Complainant.

And

Kolanati Ramesh S/o. Krishna Murthy, aged about 47 years, Caste-Pallekaru, R/o. 18Th ward, Pulakampadu, Tadikonda Municipality and Mandal.

...Accused.

This case coming before me for final hearing on 15.10.2020 in the presence of learned Assistant Public Prosecutor for the Complainant and of Sri P. Nageswara Rao, learned counsel for the accused and upon hearing both sides and the matter having stood upon for consideration to this day, this Court delivered the following :

J U D G M E N T

01.The Prohibition & Excise Inspector, Mangalagiri Police Station filed charge sheet against the accused in Crime No.21 of 2020 for the offence punishable under Section under Section 34(a) of A.P. Excise Act.

02. In brief, the case of the prosecution as unfolded in the charge sheet is stated as follows:

On 18.3.2020, as per the orders of LW.4-Ch. Prameela Rani, P&E

Inspector, L.Ws.1 to 3 (P. Narayana Rao, P&E Constable, K. Nancharaiah,

P&E Head Constable, Mangalagiri, and G. Venkateswarlu P&E Sub-

Inspector of Police, Mangalagiri respectively) and along with other staff were conducting patrolling for prohibition & excise offences and reached the scene of offence i.e., Muslim burial ground gate, on right side to

Mangalgiri to Vijayawada road, 18th ward, which is within the limits of

Tadepalli Municipality, at about 6-00 a.m., and noticed the accused standing there, by holding a white polythene bag in his right hand. On suspicion,

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L.W.3 detained accused with the help of other staff and on enquiry, accused admitted possession of liquor bottlesin the bag. Then, L.W.3 sent L.W1 to secure mediators and after some time, he returned and reported that, none were come forward to act as mediators. LW.3 decided to draft special report and on verification of the polythene bag, which was in possession of accused, he found it contains 7-180 ml. Green Choice Superior Whisky pet bottles with full of liquor, company seals and labels with inscriptions as for sale in Andhra Pradesh only, and their HEAL numbers were tearing out and the accused confessed that, he purchased the liquor bottles from in various liquor shops in Mangalagiri, in order to sell the same at higher rate for his livelihood. LW.3 took one bottle for sample for analysis and kept the remaining bottles in the same bag and sent the same to Analyst and on 21.4.2020, after completion of proceedings at the place of offence, he returned to the station and that he registered the special report, and after completion of investigation, LW.4-Ch. Prameela Rani, P&E Inspector filed charge sheet.

03.This case was taken on file against accused for the offence punishable

U/sec.34(a) of A.P. Excise Act.

04.After appearance of accused, case copies and relevant documents were furnished to him as contemplated under section 207 of Criminal

Procedure Code, 1973.

05.Accused was examined under section 239 of Cr.P.C., and a charge under section 34(a) of A.P. Excise Act,1968 was framed against accused and the contents of the charge are read over and explained to him in Telugu language, for which he pleaded not guilty and claimed to be tried.

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06. To substantiate its case, the prosecution examined P.Ws. 1 and 2 and got marked Exs.P1 to P.3 and MO.1 on its behalf.

07.After closure of prosecution evidence, accused was examined U/s. 313

Cr.P.C. and the incriminating evidence from the testimonies of P.Ws.1 and 2 were read over and explained to him, for which, he denied the same and reported no defence evidence.

08.Heard the learned APP for State and the learned counsel for accused.

09. Now the point for determination is:-

Whether the accused possessed or sold any intoxicant in contravention of provisions of Excise Act without any valid license or permit and thereby committed offence punishable under Section 34 (a) of

A.P.Excise Act, 1968?

10.The learned APP fairly contended that the matter may be decided on merits. On the other hand, the learned defence counsel contended that the prosecution failed to follow the procedure for search and seizure of alleged contraband and that no efforts were made to secure independent witnesses, that itself shows the police foisted false case against the accused for their statistical purpose and as there is no testimony of independent witness, a benefit of doubt can be extended to the accused and he may be acquitted.

11. Section - 34(a) reads as follows as hereunder:

Penalties for illegal import etc .:- Whoever, in contravention of this

Act or of any rule, notification or order made, issued or passed

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thereunder or of any license or permit granted or issued under this

Act:-

a) imports, exports, transports, manufactures, collects or possesses or sells any intoxicant, established or continued under this Act shall on conviction be punished.

12.According to the prosecution case, accused possessed liquor bottles and tried to sell the same in contravention of provisions of Excise Act and thereby committed an offence punishable under Section 34(a) of A.P. Excise

Act, 1968.

13. P.Ws.1 and 2 in chief examination staunchly supported the prosecution case. P.W. 1 in his cross-examination has deposed that, the scene of offence is a busy area and liquor bottles are duty paid. Basing on

Ex.P.1 Special Report, PW2 registered the crime and arrested the accused and after receiving the analyst report. After completion of further investigation, Lw.4-Ch. Prameela Rani, P&E Inspector filed charge sheet.

14. Prosecution's case is that the accused confessed that they possessed the liquor to sell the same at a higher price. This part of evidence deposed by P.Ws.1 and 2 with regard to the confession cannot be received into evidence because of Section 25 of the Indian Evidence Act, wherein it is clearly stated that confession made to a Police Officer is not admissible.

This part of evidence with regard to confession either in the evidence of

P.Ws.1 and 2 or in Ex.P.1 is held inadmissible. According to Section 118 of the Indian Evidence Act, 1872 every person is competent to testify. The evidence of P.W1 and P.W.2 clearly supported the prosecution case and remained unshattered as to the facts witnessed by them.

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15.P.Ws.1 and 2 categorically deposed that they witnessed the possession of liquor by accused and they seized them. But, according to

Section 59 of A.P.Excise Act, 1968, the police at the time of seizure of property, must follow the procedure enshrined in Section 100(4) of

Cr.P.C. i.e., the police shall secure the presence of independent witnesses and during their presence as mediators, the police shall seize the contraband. But, there is no piece of evidence on record that police tried to secure the presence of independent witnesses. No reason was specified either in the charge sheet or in the prosecution evidence for non-issuance of written notices to the persons around the scene of offence. P.W.1 deposed that the scene of offence is a busy area. At this juncture, it is pertinent to note that, the non-presence of independent witnesses creates doubt as to the genuineness of case of prosecution. The failure of the prosecution to comply Section 59 of A.P. Excise Act and Section 100(4) of Cr.P.C. adds strength to the argument on behalf of the accused that an hefty attempt was made by the police to drag the accused into the alleged web of crime.

16.No independent witnesses were present and were examined in this case. Except police officials, no other independent evidence supported the prosecution case. MO.1 and Ex.P.3 merely shows that the contraband seized is Indian made liquor, that itself does not mean that the accused possessed or sold the same. In these circumstances, this Court is of opinion that it is not safe to rely upon the evidence of police officials and to convict the accused. Therefore, this Court opines that, prosecution failed to establish the guilt of the accused beyond all reasonable doubt and the accused is entitled for Acquittal.

17. In the result, accused is found not guilty for the offence punishable under Section 34(a) of A.P. Excise Act, 1968 and accordingly he is

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acquitted under Section 248(1) of Cr.P.C . The bail bonds of the accused are ordered to be in force for a period of six months along with surety bonds as per Section 437-A Cr.P.C. MO.1 shall be destroyed after lapse of appeal time.

Typed to my dictation to the Stenographer Grade-III, pronounced by me in the open Court on this the 20th day of October, 2020.

Sd/- Smt. V.V.N.V.Lakshmi

ADDITIONAL JUNIOR CIVIL JUDGE,

MANGALAGIRI.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution : Pw1:P. Narayana Rao Pw2:G. Venkateswarlu

For Defence:None

DOCUMENTS MARKED

For Prosecution : Ex.P.1 Special Report Ex.P.2 First Information Report Ex.P3 Chemical Analysis report.

For Defence:NIL.

Material Objects Marked

MO1 is the 180 ml. Green Choice Superior whisky sample bottle.

Sd/- Smt. V.V.N.V.Lakshmi

ADDITIONAL JUNIOR CIVIL JUDGE,

MANGALAGIRI.

//True Copy//

Additional Junior Civil Judge,

Mangalagiri.

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CALENDAR AND JUDGMENT

IN THE COURT OF THE ADDITIONAL JUNIOR CIVIL JUDGE ::

MANGALAGIRI

Calendar Case No. 270 of 2020

Date of Offence : 18.3.2020 Date of arrest of Accused : 18.3.2020 Date of Release of accused on bail : 18.3.2020 Date of commencement of Trial : 14.10.2020 Date of close of Trial : 14.10.2020 Date of sentence or order : 20.10.2020 Crime No. and Name of P.S. : Cr.No.21 of 2020 of P & E, ` Mangalagiri.

Name of the Complainant : State: Prohibition & Excise Inspector, Mangalagiri.

Description of Accused :

Kolanati Ramesh S/o. Krishna Murthy, aged about 47 years, Caste-Pallekaru, R/o. 18Th ward, Pulakampadu, Tadikonda Municipality and Mandal.

Explanation for delay : NIL Section of Law : U/Section 34(a) of A.P.Excise Act,1968.

Finding of Court : Found not guilty

Sentence or Order : In the result, accused is found not guilty for the offence punishable under Section 34(a) of A.P. Excise Act, 1968 and accordingly he is acquitted under Section 248(1) of Cr.P.C . The bail bonds of the accused are ordered to be in force for a period of six months along with surety bonds as per Section 437-A Cr.P.C. MO.1 shall be destroyed after lapse of appeal time.

Sd/- Smt. V.V.N.V.Lakshmi

ADDITIONAL JUNIOR CIVIL JUDGE,

MANGALAGIRI.

Copy submitted to: The Hon'ble Chief Judicial Magistrate,Guntur.

//True Copy//

Additional Junior Civil Judge,

Mangalagiri.