Sri V.v.srinivasa Murthy

-1-

IN THE COURT OF THE I ADDL. METROPOLITAN SESSIONS

JUDGE, VISAKHAPATNAM.

Present : Sri.V.V.Srinivasa Murthy I Addl. Metropolitan Sessions Judge, Visakhapatnam.

Saturday, this the 20th day of June, 2020

CRL.APPEAL 252/2019

From which Court the : Chief Metropolitan Magistrate, appeal is preferred Visakhapatnam

No. of the case in that Court : C.C.88/2016

No. of the Appeal: Crl.Appeal 252/2019

Name & Description of the Appellants/Accused -1 & 2:

1. Landa Pantulamma, W/o late Nookaraju, Hindu, 70 yrs, R/o D.No.20-33-1, Paidorapeta, Visakhapatnam

2. Kasarapu Nooka Ratnam, W/o Satti Raju, Hindu, 50 yrs, R/o D.No.20-29-9, Paidorapeta, Visakhapatnam

Name & Description of the Respondent/Complainant :

State rep. by Addl. Public Prosecutor, Visakhapatnam

Sentence and law under: U/Secs.324 and 323 r/w 34 of I.P.C.

which it was imposed in the A1 and A2 are found guilty of the Lower Court offences U/Sec.324 and 323 r/w 34 IPC and they are sentenced to undergo rigorous imprisonment for a period of six months each for the offence u/s 324 r/w 34 IPC, A.1 and A2 are further sentenced to undergo rigorous imprisonment for a period of one month each for the offence u/s 323 r/w 34 IPC

Whether confirmed, modified: Modified or reversed. If modified, the modification

Date of presentation: 7-6-2019 Date of filing: 10-6-2019 Notice issued by Court to : 23-7-2019 appear :

Bail bonds if they have been : On bail. let out on bail

-2-

Appellant ordered to appear : 23-7-2019

Hearing: 15-06-2020

Order: 20-06-2020

This appeal is coming on 15.06.2020 for hearing before me in the presence of Sri. M.B.Ganesh, Sri K.V.R.Sekhar, Sri V.Padma

Jyothi and Sri K.B.Kishore, Advocates for Appellants/ Accused and of

Smt.Y.Sujatha, Addl. Public Prosecutor for Respondent-State and after perusing the record this Court delivered the following:

J U D G M E N T

1.Appellants are A1 and A2 in the proceedings of

C.C.88/2016 before the Chief Metropolitan Magistrate’s Court,

Visakhapatnam. The case was filed against A1 and A2 for the offences under section 324 and 323 r/w 34 IPC. A1 and A2 were convicted for the offences under sections 324 and 323 r/w 34 of

I.P.C. and were sentenced to undergo rigorous imprisonment for a period of six months each for the offence u/s 324 r/w 34 IPC and they are further sentenced to undergo rigorous imprisonment for a period of one month each for the offence under section 323 r/w 34

IPC. A1 and A2 preferred appeal. Parties are described as stated by the trial Court.

2.Brief facts of the case :Sub-inspector of police, I town police station, Visakhapatnam city filed charge sheet against

A1 and A2 in Crime 33/2016 of his station for the offences under sections 324, 323 r/w 34 IPC stating that at 6.30 a.m. on 16.02.2016

PW.1 Pentamma a resident of Gangavaram village came to the fishing harbour of Visakhapatnam to buy fish; and approached A1

Pantulamma; and at that time accused abused PW.1 Pentamma;

-3-

and A1 Pantulamma beat her with German silver bowl on her forehead; and on her left ear causing bleeding injury; and A2

Nookaratnam beat her with hands; and the injured PW.1 Pentamma was taken to Medlife Hospital for treatment; and PW.5 Dr.

Narasimha Rao examined her and issued Ex.P2 wound certificate opining that she sustained simple injuries; and PW.7 Srinivasarao,

Asst. Sub-inspector registered the case under Ex.P3 FIR; and he examined the witnesses. Hence the charge sheet.

3.Charge sheet was taken on file for the offences under sections 324, 323 r/w 34 IPC against accused 1 and 2.

4. After appearance of accused before trial Court and after furnishing copies of case documents, accused 1 and 2 were examined U/Sec.239 of Cr.P.C. and charges under sections 324 and 323 r/w 34 of I.P.C. were framed against accused. They pleaded not guilty of the said charges and they claimed to be tried.

5.Before trial Court PW.1 to PW.7 were examined; and

Ex.P1 to Ex.P4 and MO.1 were marked on behalf of the prosecution.

Accused 1 and 2 were examined U/Sec.313 of Cr.P.C. and they denied the incriminating evidence brought on record. After hearing arguments, after perusing the evidence and the documents filed on behalf of the prosecution, the trial Court convicted A1 and A2 for the offences under sections 324 and 323 r/w 34 of I.P.C.

6.A1 and A2 preferred appeal on the ground that the offence was said to have taken place at 6.30 a.m.; and PW.1

Pentamma was said to have attended the fishing harbour by commencing her journey from her house at Gangavaram at 6.00 a.m.; and it cannot be said that the incident has taken place at 6.30

-4-

a.m.; and PW.1 Pentamma has stated that she was beaten with a steel tub but not with a silver basin; and police have seized MO.1 a silver basin; and there are discrepancies in the evidence of witnesses; and the trial court has not properly appreciated the evidence.

7. Learned counsel of accused has submitted that the witness

PW.2 Chinnarao has admitted that he does not know about the silver basin that was collected by the police; but the investigating officer PW.7 Srinivasarao has deposed that he has seized the silver basin at police station when PW.2 Chinnarao has handed over the same to him; and thus discrepancy has arisen in respect of seizure of silver basin. Thus learned counsel has submitted that the accused are entitled to benefit.

8.It is submitted for the prosecution that the trial court has considered all the points in controversy and it requires no interference with the judgment passed by trial court.

9.Basing on the respective contentions, the following points would arise for determination in this appeal :-

1. Whether A1 Pantulamma has voluntarily caused hurt to PW.1 Pentamma at 6.30 a.m. on 16.2.2016 at fishing harbour, Visakhapatnam by beating her with a German silver bowl, a weapon of offence likely to cause death and whether A1 is liable for punishment for the offence under section 324

IPC?

2. Whether A2 Nookaratnam beat PW.1 Pentamma with hands at 6.30 a.m. on 16.2.2016 at fishing

-5-

harbour, Visakhapatnam and whether A2 is liable for punishment for the offence under section 323

IPC?

3. Whether A1 and A2 in furtherance of their common intention to cause hurt to PW.1

Pentamma voluntarily caused hurt to her?

4. Whether the prosecution has proved its case for the offences under sections 324 and 323 r/w 34 of

I.P.C. against A1 and A2 beyond reasonable doubt?

5. Whether it requires interference with the sentence and judgment passed by the trial Court ?

10.Points 1 to 4 :The case of prosecution is that PW.1

Pentamma came to fishing harbour, Visakhapatnam at 6.30 a.m. on 16.02.2016 from her village Gangavaram; and when she was to buy fish from A1 Pentamma, an altercation has taken place; and A1

Pentamma has beaten her with a german silver bowl on her forehead and near her left ear causing bleeding injury; and A2

Nookaratnam beat PW.1 Pentamma with hands causing hurt to her and that it has happened in furtherance of common intention of accused to cause hurt on PW.1 Pentamma. The contention of accused is that they have not voluntarily caused hurt to the victim

PW.1 Pentamma; and that the case is foisted against them.

11.In order to prove the offence under section 324 IPC, the prosecution has to show that the accused voluntarily caused hurt to the victim with stick a weapon of offence likely to cause death; and that accused has knowledge that he would cause such hurt to the

-6-

victim and that it was unprovoked.

For proving the offence under section 323 IPC the prosecution has to prove that the accused by his act caused bodily pain, disease or infirmity to the complainant; and that accused did such act intentionally or with knowledge that it would cause the hurt; and that it was unprovoked.

Section 319 IPC reveals about the term – hurt. Whoever causes bodily pain, disease or infirmity to any person is said to have caused hurt.

Where the accused a creditor had quarreled with his debtor over non discharge of a loan and pelted brick bat at his house knowing that they were occupants in it and hurt one of them who underwent medical treatment for 10 days; and it was held that the accused was guilty of causing hurt. Further when an injury was caused by three accused, who assaulted the injured with lathis. It was not possible to determine as to who has caused the injury. All the three accused were given benefit. (“Bharat Singh vs. State”, 1979 Crl.L.J. (NOC) 156 (ALL).

12.In order to apply Section 324 IPC prosecution has to prove that the weapon used was a weapon of offence likely to cause death. The nature of the instrument has to be taken into consideration. The instrument must be one, not which is ‘liable’, but which is likely to cause death. It must be one of which one can predict that the proper result of its use will be by virtue of its very nature, death. It must be inherent in the nature of instrument used for death is likely to ensure. Where the injury results from a blow with a bamboo stick, Section 323 IPC applies.

-7-

13.In the present case, MO.1 is a german silver bowl; and it was said to be used for causing hurt to PW.1 Pentamma. The evidence of PW.7 Srinivasarao, Asst. Sub-inspector is that MO.1 silver bowl was handed over to him at police station by PW.2

Chinnarao. But PW.2 Chinnarao has denied the same. If so the seizure of MO.1 silver bowl and using of the same by A1

Pantulamma becomes doubtful. PW.5 Dr. Narasimharao has issued

Ex.P2 wound certificate observing a laceration of 1½ x ½ cm on left ear of PW.1 Pentamma. Medical officer has also observed small abrasion on back of PW.1 Pentamma and multiple abrasions on middle of right on the forearm of PW.1 Pentamma. These last two injuries are not explained by injured or by PW.2 Chinnarao. A1

Pantulamma was said to have used the German silver bowl and A2

Nookaratnam was said to have beaten the victim with her hands.

MO.1 silver bowl is not a weapon of offence is likely to cause death.

If so, the injury sustained by PW.1 Pentamma on his ear by use of

MO.1 silver bowl can be considered as an offence under section 323

IPC.

14.Further PW.1 Pentamma has not deposed about the part of her body on which simple hurt was caused by the accused. She has deposed that A1 Pantulamma beat her with German silver bowl and A2 Nookaratnam beat her with hands. The evidence of PW.2

Chinnarao is that the victim informed him that the accused had beaten her. In fact, he has not witnessed the actual incident. PW.3

Pydamma a vendor has deposed that A1 Pantulamma has beaten the victim with steel basin on her head. She did not state about inflicting of injury on right ear of the victim by A1 Pantulamma. She

-8-

did not depose that A2 Nookaratnam has beaten the victim with hands. PW.4 Parvati has not spoken about the incident. But she has accompanied the injured to the hospital. Thus from the evidence of prosecution witnesses, it can be inferred that the accused voluntarily caused hurt to the victim. But it is not proved that A1 Pantulamma beat PW.1 Pentamma with a weapon of offence likely to cause death. If it is so, the offence committed by both the accused can be considered under section 323 IPC. Accordingly the finding of trial court is modified in respect of the offence committed by A1 Pantulamma. It is modified as Section 323 IPC. These points 1 to 4 are decided accordingly.

15. POINT 5: The trial court has convicted the accused and sentenced them to undergo imprisonment. The victim has stated about loosing of cash at the fishing harbour, Visakhapatnam. But the police have not investigated about the same and victim has also not deposed that the accused have taken away her cash. In view of the same, the sentence of imprisonment passed by trial court is set aside and both A1 and A2 are found guilty of the offence under section 323 IPC and they are sentenced to pay fine of Rs.500/- each, in default to suffer simple imprisonment till raising of the court.

This point is decided accordingly.

16.In the result, appeal is allowed in part by modifying the sentence dated 21.05.2019 in CC.88/2016 passed by the Chief

Metropolitan Magistrate, Visakhapatnam as per section 386(b)(iii) of

Cr.P.C.; and conviction of appellants/A1 and A2 for the offence under section 324 IPC is set aside. A1 and A2 are found not guilty of the offence under section 324 IPC; and they are acquitted of the said

-9-

offence. But A1 and A2 are found guilty of the offence under section 323 IPC; and the sentence of imprisonment passed by trial court is set aside. A1 and A2 are sentenced to pay fine of Rs.500/- each for the offence under section 323 IPC, in default to suffer imprisonment till raising of the court. The bail bonds of accused shall be canceled after six months as per Sec.437 A of Cr.P.C.

Dictated to Stenographer Grade-I, transcribed by her, corrected and

pronounced by me in open Court on this 20th day of June, 2020.

Sd/- V.V.Srinivasa Murthy

I ADDL. METROPOLITAN SESSIONS JUDGE,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

For Appellants : For Respondent :

No additional oral or documentary evidence was adduced on either side.

Sd/- V.V.Srinivasa Murthy

I AMSJ/VSP.

Copy to :- The Chief Metropolitan Magistrate, Visakhapatnam

-1-

IN THE COURT OF THE I ADDL. METROPOLITAN SESSIONS

JUDGE, VISAKHAPATNAM.

Present : Sri.V.V.Srinivasa Murthy I Addl. Metropolitan Sessions Judge, Visakhapatnam.

Wednesday, this the 20th day of May, 2020

CRL.APPEAL 268/2017

From which Court the : IV Addl. Chief Metropolitan Magistrate, appeal is preferred Visakhapatnam

No. of the case in that Court : C.C.237/2010

No. of the Appeal: Crl.Appeal 268/2017

Name & Description of the Appellant/Accused :

Smt. Satraboyina Appalanarasamma, W/o Suryanarayana, Hindu, 45 yrs, Housewife, R/at D.No.19-25-7, CBM Compound, Visakhapatnam

Name & Description of the Respondent/Complainant :

The State, III town police station, Crime, Visakhapatnam City, rep. by Addl. Public Prosecutor, Visakhapatnam

Sentence and law under: U/Secs.420 of I.P.C. which it was imposed in the Accused is found guilty of the Lower Court offence U/Sec.420 of IPC and she is sentenced to undergo simple imprisonment for a period of one year and to pay fine of Rs.10,000/- IDSI one month

Whether confirmed, modified: Modified or reversed. If modified, the modification

Date of presentation: 15-06-2017 Date of filing: 15-06-2017 Notice issued by Court to : 16-06-2017 appear :

Bail bonds if they have been : On bail. let out on bail

Appellant ordered to appear : 04-10-2017

Hearing: 06-03-2020

Order: 20-05-2020

-2-

This appeal is coming on 06.03.2020 for hearing before me in the presence of Sri. M.V. Ramakrishna Reddy, Advocate for

Appellant/ Accused and of Smt.Y.Sujatha, Addl. Public Prosecutor for

Respondent-State and after perusing the record this Court delivered the following:

J U D G M E N T

1.Appellant is the accused in the proceedings of

C.C.237/2010 before the IV Addl. Chief Metropolitan Magistrate’s

Court, Visakhapatnam. She was convicted for the offence

U/Sec.420 of I.P.C. and was sentenced to undergo simple imprisonment for a period of one year and to pay fine of

Rs.10,000/-, in default to suffer imprisonment for one month.

Accused is found not guilty for the offence under section 406 IPC and she is acquitted for the said offence. Accused preferred appeal. Parties are described as stated by the trial Court.

2.Brief facts of the case :SHO, III town police station registered a case in Crime 414/2010 of his station for the offences under sections 406 and 420 IPC stating that accused used to run a scheme and as per the scheme, if anybody to pay Rs.100/- per month for one year, accused would return total amount of

Rs.1,600/- giving profit of Rs.400/- to customers. Thus PW.1

Saraswati and others paid monthly installments to the accused to earn sum gain; and they used to collect money from other individuals as group leaders; and while running scheme accused could not repay the amounts as promised and thus Ex.P2 report was presented by PW.1 Saraswati on 22.3.2010 and other victims PW.2

Gowri, PW.20 Adamma and PW.21 Ramanamma and others were

-3-

examined by police. Accused was arrested on 28.3.2010. Hence the charge sheet.

3.Charge sheet was taken on file for the offences under sections 406 and 420 IPC against accused.

4. After appearance of accused before trial Court and after furnishing copies of case documents, accused was examined

U/Sec.239 of Cr.P.C. and charges under sections 406 and 420 of

I.P.C. were framed against accused. She pleaded not guilty of the said charges and she claimed to be tried.

5.Before trial Court PW.1 to PW.27 were examined; and

Ex.P1 to Ex.P9 were marked on behalf of the prosecution. Accused was examined U/Sec.313 of Cr.P.C. and she denied the incriminating evidence brought on record and she has not led any defence evidence. After hearing arguments, after perusing the evidence and the documents filed on behalf of the prosecution, the trial Court convicted accused for the offence u/s 420 IPC and acquitted the accused for the offence under section 406 IPC.

6.Accused preferred appeal on the ground that the prosecution has failed to prove the alleged writings in the notebooks; and Exs.P7 to P9 and passbooks Exs.P3 to P5 belonged to PW.3 Eswaramma, PW.20 Adamma and PW.21 Ramanamma; and the prosecution has failed to prove its case; and the trial court has not properly appreciated the evidence. It is submitted for the prosecution that the accused has received amounts from PW.1

Saraswati and others; and accused has not acted as per her promise; and thus cheated victims and prosecution has proved its case beyond reasonable doubt; and it requires no interference.

-4-

7.Basing on the respective contentions, the following points would arise for determination in this appeal :-

1. Whether the accused has committed the offence of criminal breach of trust and whether accused has cheated PW.1 Saraswati and others and whether accused is liable for the offence under section 420 IPC?

2. Whether the prosecution has proved its case for the offence U/Sec.420 of I.P.C. against accused beyond reasonable doubt ?

3. Whether it requires interference with the sentence and judgment passed by the trial Court ?

8.Points 1 to 3: The case of the prosecution is that the accused conducted business by introducing a scheme in which a person has to pay Rs.100/- per month over a period of one year; and in the end accused has to return Rs.1,600/- giving profit of

Rs.400/- to the customers; and in that connection PW.1 Saraswati and others acted as group leaders; and collected amounts from

PW.3 Eswaramma, PW.20 Adamma and PW.21 Ramanamma and others; and accused has failed to repay the amount; and thus accused has committed the offence of cheating. The contention of accused is that group leaders themselves misappropriated the amounts collected by them; and the allegation of cheating was shown against her; and in fact she has not committed the act of criminal breach of trust or misappropriation or cheating.

9.Section 406 IPC reveals about the offence of punishment for commission of criminal breach of trust.

-5-

Section 405 IPC defines the term criminal breach of trust. It reveals whoever being in any manner entrusted with the property or with any dominion over the property, dishonestly misappropriates or converts to his own use that property or willfully suffers any other person commits criminal breach of trust.

In order to prove the offence under section 406 IPC, prosecution has to prove that the accused was entrusted with the property or with dominion over it; and that he misappropriate it or used it and that he did so in violation of any legal contract express or implied; and that he acted dishonestly.

10. Sec.415 of IPC reveals about the term cheating. It says – whoever, by deceiving any person, fradulently or dishonestly induces the person so delivered to deliver any property to any person and is said to cheat.

Sec.420 of IPC reveals – whoever cheats and thereby dishonestly induce the person to deliver any property to any person shall be punished. In M/s Thermax Limited vs. K.M. Johny and others, 2011 Crl. L.R. SC 869, the criminal complaint filed therein u/s 405 and 420 IPC did not reveal specific liability of the company. It is observed that in the absence of specific details about the same, no person other than the director of company can be prosecuted under the alleged complaint.

11.In the present case, the accused was said to have conducted a scheme in which PW.1 Saraswati and others acted as group leaders and got deposited Rs.100/- per month each from the interested persons; and subsequently accused has failed to pay the profit of Rs.400/- along with deposited sum of Rs.1,200/- and

-6-

thereafter Ex.P2 report was presented by PW.1 Saraswati. The contention of accused is that the group leaders themselves have received the amounts and not properly accounted for such amounts. But however the evidence brought on record showing that the accused has misappropriated some of the amounts deposited by PW.3 Eswaramma and others.

12.The accused was also said to be conducting chits business privately. The passbooks filed by the prosecution witnesses show about certain sums but they do not contain the signature of the accused. It is not revealing whether such passbooks were issued during the course of chits scheme run by accused. The evidence of PW.1 Saraswati is that accused has paid agreed amounts for the years 2008 and 2009; and that she used to pay Rs.10,000/- p.m. on behalf of people of their locality. Around 50 persons of the locality were said to have paid installments. From

Dasara festival of 2010 onwards the amount could not be repaid.

Her further evidence is that Ex.P10 passbooks discloses Rs.15,000/- every month and it pertains to chit auction amount of Rs.1,00,000/- and the same is not mentioned in Ex.P2. Thus it can be inferred that Ex.P10 does not disclose the correct facts about the amounts paid and withdrawn by the parties.

13.The evidence of PW.2 Gowri is that she has paid

Rs.6,000/- p.m. and accused has promised to pay Rs.96,000/- after receiving Rs.72,000/- in a year. She has admitted that her signature is not mentioned in Ex.P2 report and her subscription book is not placed in record. If so, the correct details cannot be inferred from the evidence of PW.2 Gowri. Further PW.2 Gowri has

-7-

admitted that accused is having house in their area and it is worth

Rs.30,00,000/-. If so if she has paid any amount she can recover it by way of sale of house of accused.

14.PW.3 Eswaramma is suggested that the subscribers have no capacity to pay subscription. Her evidence is that she has paid 80 chits each Rs.100/-. PW.4 Parvathi has deposed that she has paid amount of Rs.10,000/- p.m. but there is no proof for it.

PW.5 Laxmi has deposed that her monthly subscription is Rs.3,000/- p.m. and chit value is one lakh rupees. She is the daughter of PW.1

Saraswati. PW.6 Rajeswari has deposed that accused used to enter her payments in a book and it was issued to her but she has not filed such passbook. There is no other proof produced by PW.7

Ratnam and other witnesses. PW.20 Adamma has filed Ex.P4 passbook evidencing payments but she has deposed that the entries were written by husband of accused. She has further deposed that her son used to maintain her and the passbook Ex.P4 was given to her by her son. PW.21 Ramanamma has filed Ex.P5 passbook to prove that she has paid an amount of Rs.1,300/- p.m.

on behalf of herself and her neighbours. Thus she is a group leader.

There is no correct proof as to how much she collected from the neighbors and the amount paid by her to accused.

15.PW.27 Demudamma has deposed that she has paid

Rs.2,000/- p.m. on behalf of other 20 members. Thus she is also a group leader and has received the amounts from the public of the locality. Thus it can be inferred that the group leaders collected the amounts from the people of their locality; and they have failed to state correct amounts received by them; and the amounts paid to

-8-

the accused. In such circumstances it cannot be stated that accused has committed the offence of cheating. At best it can be stated that accused has failed to repay certain amounts to the group leaders and the persons of the locality; and accused has committed criminal breach of trust by misappropriating certain amounts paid to her. It can be concluded that accused has committed the offence of criminal breach of trust. To that extent a finding recorded by the trial court that accused committed the offence of cheating under section 420 IPC is set aside and accused is found guilty of the offence under section 406 IPC. Accused has paid fine amount of Rs.10,000/-. She was in prison for some time.

Considering such circumstances sentence of imprisonment awarded by trial court for the offence under section 420 IPC is set aside and accused is sentenced to pay fine of Rs.10,000/- for the offence under section 406 IPC. Fine amount paid by accused before trial court holds good. T hese points are decided accordingly.

16.In the result, appeal is partly allowed and accused is found not guilty of the offence under section 420 IPC and judgment

dated 05.06.2017 in CC.237/2010 passed by IV Addl. Chief

Metropolitan Magistrate, Visakhapatnam is modified; but accused is found guilty of the offence u/s 406 IPC and as per Sec.386(b)(iii) of

Cr.P.C. and sentence of imprisonment passed by trial court is set aside and fine amount of Rs.10,000/- awarded by the trial court is upheld for the offence under section 406 IPC. The bail bonds of accused shall be cancelled after six months as per Sec.437-A of Cr.P.C.

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

pronounced by me in open Court on this 20th day of May, 2020.

Sd/- V.V.Srinivasa Murthy

I ADDL. METROPOLITAN SESSIONS JUDGE,

VISAKHAPATNAM.

-9-

APPENDIX OF EVIDENCE

For Appellants : For Respondent :

No additional oral or documentary evidence was adduced on either side.

Sd/- V.V.Srinivasa Murthy

I AMSJ/VSP.

Copy to :- The IV Addl. Chief Metropolitan Magistrate, Visakhapatnam

-1-

IN THE COURT OF THE I ADDL. METROPOLITAN SESSIONS

JUDGE, VISAKHAPATNAM.

Present : Sri.V.V.Srinivasa Murthy I Addl. Metropolitan Sessions Judge, Visakhapatnam.

Saturday, this the 20th day of June, 2020

CRL.APPEAL 405/2018

From which Court the : II Addl. Chief Metropolitan Magistrate, appeal is preferred Visakhapatnam

No. of the case in that Court : C.C.230/2017

No. of the Appeal: Crl.Appeal 405/2018

Name & Description of the Appellant/Accused -2:

Pogartha Rajesh, S/o late Gurumurthy, 20 yrs, Hindu, Chinakapu by caste, R/at V-Max theater, Visakhapatnam (A2)

Name & Description of the Respondents/Complainant :

The State of A.P., through SHO, Maharanipeta police station, rep. by Addl. Public Prosecutor, Visakhapatnam

Sentence and law under: U/Secs.332, 323 r/w 34 I.P.C. which it was imposed in the A2 is found guilty of the Lower Court offences U/Sec.332 and 323 r/w 34 IPC and he is sentenced to undergo simple imprisonment for a period of six months for the offence u/s 332 r/w 34 IPC, A.2 is further sentenced to undergo simple imprisonment for a period of three months for the offence u/s 323 r/w 34 IPC. A2 is found not guilty for the offence under section 353 r/w 34 IPC and he is acquitted under section 248(1) Cr.P.C.

Whether confirmed, modified: Modified or reversed. If modified, the modification

Date of presentation: 21-08-2018 Date of filing: 21-08-2018 Notice issued by Court to : 23-08-2018 appear :

Bail bonds if they have been : On bail. let out on bail

-2-

Appellant ordered to appear : 15-11-2018

Hearing: 20-06-2020

Order: 20-06-2020

This appeal is coming on this day for hearing before me in the presence of Sri. K.Naga Kumari and Sri Y.Ramarao, Advocates for

Appellant/ Accused-2 and of Smt.Y.Sujatha, Addl. Public Prosecutor

for Respondent-State and after perusing the record this Court

delivered the following:

J U D G M E N T

1.Appellant is A2 in the proceedings of C.C.230/2017

before the II Addl. Chief Metropolitan Magistrate’s Court,

Visakhapatnam. The case was filed against A1 and A2 for the offences under sections332, 353, 323 r/w 34 IPC. A1 and A2 were convicted for the offences under sections 332 and 323 r/w 34 of

I.P.C. and were sentenced to undergo simple imprisonment for a period of six months each for the offence u/s 332 r/w 34 IPC and they are further sentenced to undergo simple imprisonment for a period of three months each for the offence under section 323 r/w 34 IPC. A1 and A2 were found not guilty for the offence under section 353 r/w 34 IPC and were acquitted of the said offence. A2 preferred appeal. Parties are described as stated by the trial Court.

2.Brief facts of the case :Sub-inspector of police,

Maharanipeta police station, Visakhapatnam city filed charge sheet against A1 and A2 in Crime 112/2017 of his station for the offences under sections 332, 353, 323 r/w 34 IPC stating that around 11.00 a.m. on 24.04.2017 at K.G.Hospital, Visakhapatnam outgate, PW.1

Krishna, police constable of I town traffic police station was beaten

-3-

by A1 and A2 with their hands; and they have torn the uniform of

PW.1 Krishna when PW.1 Krishna was attending traffic duty. The offence was witnessed by PW.2 Sriramulu. Ex.P2 wound certificate was issued by PW.3 Dr. Surendra Kumar. Ex.P4 FIR was registered.

Hence the charge sheet.

3.Charge sheet was taken on file for the offences under sections 332, 353, 323 r/w 34 IPC against accused 1 and 2.

4. After appearance of accused before trial Court and after furnishing copies of case documents, accused 1 and 2 were examined U/Sec.239 of Cr.P.C. and charges under sections 332, 353 and 323 r/w 34 of I.P.C. were framed against accused. They pleaded not guilty of the said charges and they claimed to be tried.

5.Before trial Court PW.1 to PW.6 were examined; and

Ex.P1 to Ex.P5 were marked on behalf of the prosecution. Accused 1 and 2 were examined U/Sec.313 of Cr.P.C. and they denied the incriminating evidence brought on record. After hearing arguments, after perusing the evidence and the documents filed on behalf of the prosecution, the trial Court acquitted A1 and A2 for the offence under section 353 of I.P.C. and convicted A1 and A2 for the offences under sections 332 and 323 r/w 34 of I.P.C.

6.A2 preferred appeal on the ground that the sole evidence of PW.1 Krishna cannot be believed; and the trial court has not properly appreciated the evidence of PW.1 Krishna and PW.2

Sriramulu.

7. Learned counsel of accused has submitted that independent witnesses were not examined for proving the case of the prosecution; and PW.1 and PW.2 are interested witnesses. It is

-4-

submitted for the prosecution that the trial court has considered all the points in controversy and it requires no interference with the judgment passed by trial court.

8.Basing on the respective contentions, the following points would arise for determination in this appeal :-

1. Whether A2 Rajesh caused hurt to PW.1 Krishna a constable when he was attending his legitimate duty as such public servant to deter him from discharging such duty at 11.00 a.m. on 24.04.2017 near K.G.Hospital outgate

Visakhapatnam and whether A2 is liable for punishment for the offence under section 332

IPC?

2. Whether A2 Rajesh has voluntarily caused hurt to

PW.2 Sriramulu at 11.00 a.m. on 24.04.2017 near

K.G.Hospital outgate Visakhapatnam and whether

A2 is liable for punishment for the offence under section 323 IPC?

3. Whether the prosecution has proved its case for the offences under sections 332 and 323 of I.P.C.

against A2 beyond reasonable doubt ?

4. Whether it requires interference with the sentence and judgment passed by the trial Court ?

9.Points 1 to 4 :The case of prosecution is that PW.1

Krishna was attending traffic duty around 11.00 a.m. on 24.04.2017 at K.G.Hospital outgate, Visakhapatnam; and A1 Esuraju and A2

Rajesh beat PW.1 Krishna with hands and that they have torn his

-5-

uniform; and Ex.P1 report was presented and Ex.P4 FIR was registered. The contention of A2 is that he has not participated in such offence; and he has no common intention to cause such hurt on PW.2 Sriramulu or to cause obstrction to duty of PW.1 Krishna a public servant.

10.In order to prove the offence under section 332 IPC, the prosecution has to prove that A2 Rajesh caused hurt to PW.1

Krishna when PW.1 Krishna was discharging his duty as public servant. In order to prove the offence under section 323 IPC, the prosecution has to prove that A2 Rajesh has voluntarily caused hurt to PW.2 Sriramulu and that it was done so without any provocation and accused has knowledge that his act was likely to cause hurt.

11.In the present case, A2 Rajesh was convicted under section 332 IPC and he was found not guilty under section 353 IPC.

Section 353 IPC reveals about offence of assaulting or using criminal force to any public servant who was executing his duty.

12.In the present case, PW.1 Krishna a police constable was attending traffic duty at K.G.Hospital outgate, Visakhapatnam on 24.4.2017. Both A1 and A2 were said to have beaten him with hands and torn his uniform; and they also caused hurt to PW.2

Sriramulu. But police have not seized the uniform worn by PW.1

Krishna at the time of incident to show that uniform was torn. The evidence of PW.1 Krishna is that he tried to rescue an old man from the hands of two persons; and the said two persons used criminal force and beat him on his chest and back; and the said old man sustained injury on his left jaw.

13.PW.3 Dr. Surendra Kumar has deposed that he has

-6-

observed swelling over right index finger and ring finger of PW.1

Krishna. PW.3 Dr. Surendra Kumar has examined PW.2 Sriramulu and observed swelling of 2 x 2 cms on left jaw of PW.2 Sriramulu.

The evidence of PW.1 Krishna is that the accused beat him on his chest and back. But there are no supporting injuries in respect of such overtacts. In the absence of evidence showing causing of injuries on PW.1 Krishna in the hands of A2 Rajesh, his evidence shows that they have shown criminal force against him. If so the offence falls under section 353 IPC. PW.2 Sriramulu has deposed about sustaining hurt on his left jaw in the hands of A2 Rajesh. It can be concluded that A2 Rajesh has shown criminal force against

PW.1 Krishna, a constable attending duty as such public servant and further A2 Rajesh has caused hurt to PW.2 Sriramulu. But the evidence brought on record is proving the offence under section 353 and 323 IPC against A2 Rajesh. The finding of trial court that

A2 Rajesh has committed the offence under section 332 IPC is set aside. The imprisonment awarded by trial court for Sections 332 and 323 IPC is set aside and A2 Rajesh is found guilty of the offence under section 353 IPC instead of Sec.332 IPC and he is also found guilty of the offence under section 323 IPC. He is sentenced to undergo simple imprisonment for a period of 20 days for each of offences under sections 353 and 323 IPC as he was aged 19 years on the date of offence; and he was a young offender who has not involved in any other cases. Both the sentences shall run conurrently. The period of imprisonment undergone by A2 Rajesh from 25.4.2017 to 18.5.2017 is given set off. These points are decided accordingly.

-7-

14.In the result, the appeal is allowed in part by modifying the sentence dated 30.07.2018 in CC.230/2017 passed by the II

Addl. Chief Metropolitan Magistrate’s Court, Visakhapatnam as per

Sec.386(b)(iii) Cr.P.C. and conviction of A2 for the offences under section 332, 323 r/w 34 IPC is set aside. A2 is found not guilty of the offence under section 332 r/w 34 IPC. But A2 is found guilty of the offences under sections 353 and 323 IPC and sentenced to undergo simple imprisonment for a period of 20 days for each of the offences and they shall run concurrently. The period of imprisonment undergone by A2 Rajesh from 25.4.2017 to 18.5.2017 is given set off under section 428 Cr.P.C. The bail bonds of A2 be canceled after six months as per Sec.437-A Cr.P.C.

Dictated to Stenographer Gr-1, transcribed by her, corrected and

pronounced by me in open Court on this 20th day of June, 2020.

Sd/- V.V.Srinivasa Murthy

I ADDL. METROPOLITAN SESSIONS JUDGE,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

For Appellant : For Respondent :

No additional oral or documentary evidence was adduced on either side.

Sd/- V.V.Srinivasa Murthy

I AMSJ/VSP.

Copy to :- The II Addl. Chief Metropolitan Magistrate, Visakhapatnam

- 1 -

IN THE COURT OF THE II ADDL. DISTRICT JUDGE,

VISAKHAPATNAM.

Present : Sri.V.V.Srinivasa Murthy, II Addl. District Judge, Visakhapatnam.

Monday, this the 22nd day of June, 2020

E.P.15/2016

Between : M/s Shri Ram Transport Finance Company Limited, rep. by Assistant Branch Manager and GPA holder, MVP Colony, Visakhapatnam, M.V.Ravi Kumar, S/o Venkata Ramana Rao, authorized signatory cum GPA holder, Hindu, 31 yrs ...Decree Holder

And :

1. B.Venkata Ramana, S/o Ramulu, 30 yrs, R/at 12-346, Balaji Nagar, Arilova, Visakhapatnam

2. B.Nooka Raju, S/o Ramulu, 29 yrs, rest -do- ...Judgment Debtors

This petition is coming on this day for hearing before me in the presence of Sri. Y.V.Saradhi, Advocate for the Decree Holder and Sri. T.Gangadhar, advocate for Judgment Debtors and the matter having stood over for consideration till this day and this Court delivered the following :

O R D E R

1.Execution petition is filed under Order XXI Rule 37 CPC for recovery of Rs.10,51,735/- from the J.Drs. 1 and 2 by way of senting the

J.Drs.1 and 2 to civil prison.

2.The Senior Recovery Officer of D.Hr. Company filed affidavit stating that the J.Drs. 1 and 2 are having sufficient means to satisfy the award amount; and the amount can be realized by way of sending the

J.Drs. to civil prison.

3.Brief averments of counter filed by 1st J.Dr. And adopted by 2nd J.Dr. : J.Dr.-1 has availed vehicle loan of Rs.16,04,569/- for buying TATA

LPT 2515 bearing AP 31 TA 3839 by availing finance from D.Hr. Company.

J.Dr.-1 has repaid Rs.5,60,877/-. In December, 2013 the said vehicle was seized by D.Hr. Company and the same was sold in auction. Notices were not served in the arbitration proceedings. J.Dr.-1 is not having any - 2 - property; and he gets Rs.8,000/- p.m. by attending the work of driver; and the E.P. is not maintainable.

4.PW.1 was examined on the side of D.Hr. J.Drs. have not adduced any evidence. Arguments were submitted by the learned counsels on record.

5.Point for consideration :-

Whether J.Drs. 1 and 2 having got sufficient means to discharge the decreetal amount; and whether they have refused or neglected to repay the same; and whether the D.Hr. is entitled to realize the decreetal amount from J.Drs. 1 and 2 by way of sending them to civil prison?

6.POINT :The present E.P. is filed under Order XXI Rule 37

CPC for realization of award amount from the J.Drs. by way of sending them to civil prison. Section 51 – proviso (b) CPC reveals that the J.Dr.

has, or has had since the date of decree, the means to pay the amount of decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, the detention in prison can be ordered.

7.In “T.Dharma Lingam vs. K.P. Bharathi” before

Hon’ble Madras High Court judgment dated 06.02.2017 in

CRP.1251/2011, the provision under Order XXI Rules 37 and 38 CPC

were considered. The discretionary power to permit J.Dr. To show cause against detention in prison is mentioned. So far as the choice whether

D.Hr. Could adopt and file E.P. for attachment or arrest is concerned, in the recent times it has been arrived at by the upper Forums of Law that prior to embarking upon arrest, the other procedures kept upon such as attachment etc., should be exhausted. It is also observed in “Jolly

George Varghese vs. Bank of Cochin”, AIR 1980 SCC 470. It is observed that before passing orders under Order XXI Rules 37 and 38 - 3 -

CPC, the executing court should record satisfaction regarding means of

J.Dr. and then pass orders giving adequate reasons.

8.In the present case, D.Hr. has not mentioned in its affidavit about the means of J.Drs. to pay the E.P. amount. The contention of J.Drs.

is that they have no movable or immovable properties; and J.Dr.-1 is working as a driver. If so it cannot be stated that J.Drs. have means to repay the award sum. The evidence of D.Hr. as PW.1 is that he has not filed document to prove that J.Drs. are dealing in real estate and transport business and they earning Rs.15,000/- p.m. No notice was served prior to filing of E.P. stating about intentional avoiding of E.P. amount by J.Drs.

D.Hr. has not shown that J.Drs. have got means to repay the amount; and they have refused or neglected to repay the same. D.Hr. has also not stated about the movable property owned by J.Drs. If so it cannot be concluded that J.Drs. have means to repay the amount. Hence this point is decided against the D.Hr.

9.In the result, the E.P. is dismissed but without costs.

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

pronounced by me in the open Court, this the 22nd day of June, 2020.

Sd/- V.V.Srinivasa Murthy

II ADDL. DISTRICT JUDGE,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

No. of witnesses examined:

For D.Hr.For J.Drs. PW.1 M.V.Ravi KumarNONE

No. of documents marked :

For D.Hr.For J.Drs. NIL

Sd/- V.V.Srinivasa Murthy

II ADJ, VSP

1

IN THE COURT OF THE I ADDL. METROPOLITAN SESSIONS

JUDGE, VISAKHAPATNAM.

Present : Sri.V.V.Srinivasa Murthy

I Addl. Metropolitan Sessions Judge, Visakhapatnam.

Thursday, the 18 th day of June, 2020.

CRL.APPEAL 7/2018

From which Court the : Special Magistrate Court-IV, appeal is preferred Visakhapatnam

No. of the case in that Court: C.C.356/2016

No. of the Appeal: Crl.Appeal 7/2018

Name & Description of the Appellant/Accused :

Mangalagiri Venkata Hari Prasad, S/o Benna Rao, Hindu, 46 yrs, working as Shuntin Traffic Jamedar, Emp. No.015012, Port Operations Management, Visakhapatnam Port Trust, Visakhapatnam, R/at D.No.14-461, E-block, Lakshmi Nagar, Gopalapatnam Post, Visakhapatnam

Name & Description of the Respondents/Complainants :

1. Sabbavarapu Draksha Rao, S/o late Gangayya, Hindu, 59 yrs, R/at D.No.17-69, Plot No.64, Ganesh Seva Sangham, Salagramapuram post, Visakhapatnam

2. The State rep. by its Public Prosecutor, Visakhapatnam.

Sentence and law under: U/Sec.138 of Negotiable Instruments Act.

which it was imposed in the Accused is found guilty for the Lower Courtoffence punishable U/Sec.138 of N.I.Act and she is convicted U/Sec.255 (2) of Cr.P.C. and sentenced to undergo Simple Imprisonment for six months.

Whether confirmed, modified : ALLOWED or reversed. If modified, the modification. In the result, Appeal is allowed and Appellant/Accused is found not guilty of the offence under section 138 of Negotiable Instruments Act., and 2 sentence imposed by the Special

Magistrate Court - IV, Visakhapatnam

in C.C.356/2016 dated 13.12.2017 is set aside as per section 386 (b) (i) of Cr.P.C., of the said offence.

Date of presentation: 03-01-2018

Date of filing: 03-01-2018

Notice issued by Court to : 04-01-2018 appear :

Bail bonds if they have been : On bail. let out on bail

Appellant ordered to appear: 18-04-2018

Hearing: 18.06.2020

Order: 18.06.2020

This appeal is coming on this day for hearing before me in the presence of Sri G.N.Murthy, Sri N. Satyanarayana, Sri P.Naidu and Sri

P.Vamsidhar, Advocates for Appellant/Accused and of Sri Allu Suresh

Kumar, Advocate for the 1st respondent and Addl. Public Prosecutor for 2nd Respondent-State and after perusing the record this Court delivered the following:

J U D G M E N T

1. This Appeal is preferred by the accused when he was convicted in the proceedings of CC.356/2016 before Special Magistrate Court -

IV, Visakhapatnam dated 13.12.2017. He was convicted for the offence under section 138 of Negotiable Instruments Act, and sentenced to undergo Simple Imprisonment for a period of six months. Parties are described as stated by trial court.

3

2.Accused borrowed Rs.2,50,000/- from the complainant on 05.12.2011 under Ex.P1 pronote. Accused issued Ex.P2 cheque

dated 27.02.2013 for Rs.2,00,000/-. It was drawn on State Bank of

India, Visakhapatnam Port Branch, Visakhapatnam towards part payment of said debt. It was presented in State Bank of Hyderabad,

Saligramapuram Branch, Visakhapatnam on 27.2.2013. Ex.P3 cheque return memo dated 28.02.2013 was issued with endorsement ’funds insufficient’. Legal notice Ex.P4 was issued on 5.3.2013. Accused received the same under Ex.P6 acknowledgment.

3.Thus, the complaint is filed following the provisions of section 138 of the Act. Trial Court considered the evidence of complainant

P.W.1 and the documents Exs.P1 to P6 and convicted the accused.

Accused preferred appeal on the ground that he never borrowed any amount nor he issued the cheque. But the evidence brought on record is proving about the guilt of the accused.

4.Following the guidelines stated by the Hon’ble Supreme Court in Meters and Instruments Company Ltd., 2017 (3) L.S. 39 – the accused has come forward to pay the amount. Case has been settled amicably and an amount of Rs.1,70,000/- was paid towards compensation in this case. Thus, parties have settled the case.

5. Hence Appeal is allowed and Appellant/Accused is found not guilty of the offence under section 138 of Negotiable Instruments 4

Act, and sentence imposed by the Special Magistrate Court-IV,

Visakhapatnam in CC.356/2016 dt.13.12.2017 is set aside as per section 386 (b) (i) of Cr.P.C., and accused is acquitted of the said offence. The bail bonds of accused shall be cancelled six months thereafter as per section 437-A of Cr.P.C.

Typed to my dictation by Stenographer Gr-I, corrected and

pronounced by me in open court, dated this the 18th day of June, 2020.

Sd/- V.V.Srinivasa Murthy

I ADDL. METROPOLITAN SESSIONS JUDGE,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

No additional oral or documentary evidence adduced on either side.

Sd/- V.V.Srinivasa Murthy

I AMSJ, VSP.

Copy to:

The Special Magistrate Court-IV, Visakhapatnam.