Sri Y.Srinivasa Rao

Calendar and Judgment Calendar Cases tried by the Spl. Judl. Magistrate of I Class, Prohibition and Excise Court, Srikakulam.

Date of Offence : 27.06.2013 Report or complaint : 05.09.2013 Appearance of accused : 08.09.2016 Commencement of trial : 21.10.2016 Close of trial : 24.04.2017 Sentence of order : 27.04.2017 Explanation for delay : This case was transferred from 1st Addl. Junior Civil Judge Court, Srikakulam as per Hon’ble District Court proceedings in Dis.No.303/dt.22.01.2014 and the same is received to this court on 22.08.2014. Hence, the delay.

Calendar and Judgment in C.C.No.187/2014 (Old C.C. No.934/2013) on

the file of Spl.Judl.Magistrate of I Class Court, Prohibition and Excise,

Srikakulam.

Name of the complainant: Matta Jayaraj Kumar, S/o late Narayanarao, age 62 years, Hindu, r/a Chinnabondilipuram, Srikakulam town and district.

Name of accused Father’s name Age, Callling, Religion, Village Mandal

Deergasi Suryanarayana, S/o late Appayya, aged 55 years, Business, Door No.12-8-30, Gunapalem, Srikakulam Town. -------------------------------------------------------------------------------------- Offence:-Whoever issues a cheque knowing fully well that there are no funds in his account and thereby dishonor of cheque for insufficiency of funds, shall be punishable under section 138 of Negotiable Instruments Act, 1881. Finding:- Not guilty. Sentence of order:- In the result, the accused is found not guilty for the offence under section 138 of the Negotiable Instruments Act and he is acquitted for the same under section 255(1) of the Code of Criminal Procedure, 1973. The bonds and bail bonds of accused, if any, shall stand canceled after lapse of six months.

Sd/- Y. Srinivasa Rao

Spl.Judl.Magistrate of I Class, Proh. & Excise Court, Srikakulam.

Copy submitted to the Hon’ble I Addl. District Judge, Srikakulam.

2

IN THE COURT OF SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS,

PROHIBITION AND EXCISE COURT, SRIKAKULAM.

PRESENT

SHRI Y.SRINIVASA RAO

Special Judicial Magistrate of First Class, Prohibition & Excise, Srikakulam.

THURSDAY, THE TWENTY SEVENTH DAY OF APRIL,

TWO THOUSAND AND SEVENTEEN.

CALENDAR CASE No. 187/2014 (Old C.C.No. 934/2013)

Between

Matta Jayaraj Kumar, S/o late Narayanarao, age 62 years, Hindu, r/a Chinnabondilipuram, Srikakulam town and district.

…Complainant

And

Deergasi Suryanarayana, S/o late Appayya, aged 55 years, Business, Door No.12-8-30, Gunapalem, Srikakulam Town.

…Accused.

This case, which is transferred to this court from the court 1st

Additional Judicial Magistrate of I Class, Srikakulam, is coming on

24.04.2017 for final hearing before me in the presence of Shri P.S. Gandhi, Advocate for the Complainant and of Shri M.S. Vinay Bhushan Rao, Advocate for the accused, and having stood over to this day for consideration, this Court delivered the following

J U D G M E N T :-

This is private complaint filed by the complainant against accused for the offence punishable under section 138 of the Negotiable Instruments Act, 1881 (herein after referred as NI Act).

2. The brief facts of the case as under:-

Accused is said to have borrowed an amount of Rs.1,20,000/- from the complainant on 20.01.2012 and he executed a promissory note on 3 the same day agreeing to repay the debt with interest @ 24% per annum.

Later, in spite of repeated demands, accused did not repay the debt due and interest but he is said to have issued a cheque bearing no. 924783, dt.

27.06.2013 for Rs.1,20,000/- to the complainant towards principle amount payable at Bank of Baroda, Srikakulam. When the complainant presented the said cheque in the IDBI Bank, Srikakulam on 29.06.2013, the said cheque was returned on 01.07.2013 with an endorsement that the opening balance insufficient. Thereafter, a legal notice was got issued to accused on 18.07.2013 and the said notice was served on 19.07.2013. Inasmuch as there is neither reply nor payment by accused, this complaint is filed. Hence, the complaint.

3. The case was taken on file against the accused for offence under Section 138 of N.I.Act.

4. On appearance of accused, copies of documents were furnished to him under section 207 of Criminal Procedure Code and Rule 8 of Criminal

Rules of Practice and he was examined under section 251 of Criminal

Procedure Code for the offence under section 138 of N.I.Act. The accusation was read over and explained to accused in Telugu. On understanding the contents of the same, the accused pleaded not guilty and claimed for trial.

5. In the trial afforded to both parties, on behalf of the prosecution/Complainant side, P.Ws.1 and 2 were examined and Exs.P.1 to P.5 were marked.

6. After closure of prosecution evidence, accused was examined under section 313 Cr.P.C., by putting the incriminating material available against him and he denounced the incriminating material and reported no defence evidence.

7. Heard both sides.

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8. Above being the position on record, now the short and significant points, though important, that arise for determination in the present case are, as to, (1) Whether the complainant proves that the accused to discharge the alleged debt of Rs.1,20,000/- has got issued a cheque bearing No.924783 on 27.06.2013 for Rs.1,20,000/- drawn at Bank of Baroda, Srikakulam and the debt is a legally enforceable debt?

(2) Whether the said cheque came to be dishonoured as “opening balance insufficient” after its presentation and despite of issuance of notice, the accused did not pay the due amount with in stipulated time without any cause, thereby Negotiable Instrument Act?

(3) If so, whether the prosecution established the guilt of accused beyond all reasonable doubt?

9. Point No.1:- As seen from the complaint, the specific case of the complainant is such that accused is alleged to have borrowed a sum of

Rs.1,20,000/- from P.W.1 and executed a promissory note agreeing to repay the same with interest at the rate of 24% per annum. Subsequently, when

P.W.1 was said to have demanded the accused to repay the debt, on 27.06.2013, accused was alleged to have issued cheque as in Ex.P.1 for sum of

Rs.1,20,000/- and thereafter when this cheque was presented before the

Bank of Baroda, Srikakulam this cheque was returned on the ground “opening balance insufficient”.

10. The learned counsel for the complainant argues that when accused issued cheque, it must be presumed that the said cheque was issued to discharge legally enforceable. The complainant also relied on

Ex.P.5/receipt contending that P.W.1 was said to have returned the promissory note dated 20.01.2012 when P.W.1 received cheque from the accused.

11. On the other hand, the learned defence counsel contends that

Ex.P.1 is no way connected to the alleged promissory note dated 20.01.2012 and that accused did not borrow any amount from P.W.1 on 20.01.2012 and the complainant failed to prove the existence of legally enforceable and therefore this case must fail.

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12. I will now show the reasons justifying that P.W.1 fails to show that accused executed any promissory note his favour. In the context of the definition of "promissory note" given in Section 2(22) of the Stamp Act, the definition of the term as given in Negotiable Instruments Act, 1881 assumes importance. Section 4 of the latter act defines "promissory note" as follows:

"A 'promissory note' is an instrument in writing (not being a bank-note or a currency-note) containing an unconditional undertaking, signed by the maker, to pay a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument.

Illustrations

A signs instruments in the following terms:

(a) "I promise to pay B or order Rs. 500."

(b) "I acknowledge myself to be indebted to B in Rs. 1,000, to be paid on demand, for value received."

(c) "Mr. B, I.O.U. Rs. 1,000".

(d) "I promise to pay B Rs. 500, and all other sums which shall be due to him."

(e) "I promise to pay B Rs. 500, first deducting thereout any money which he may owe me."

(f) "I promise to pay B Rs. 500 seven days after my marriage with C."

(g) "I promise to pay B Rs. 500 on D's death, provided D leaves me enough to pay that sum."

(h) "I promise to pay B Rs. 500 and to deliver to him my black horse on 1st January next."

13. In this case on hand, admittedly, P.W.1 did not produce original promissory note to believe that accused was said to have executed the promissory note on 20.01.2012 for sum of Rs.1,20,000/-. This Court will now show the admissions of P.W.1 in his cross examination. P.W.1 admits in cross examination as follows (in his own words):

6 “It is true that I did not mention about Ex.P.5/receipt in

Ex.P.3/Legal notice and also there is no reference about Ex.P.5 in my complaint.” “It is true that I did not see where Ex.P.1/cheque was filled up and who filled up the blanks”. “It is true that I did not question accused about by whom Ex.P.1 was filled up”. “It is true that I did not mention in my pleadings, legal notice and in my evidence about the pendenti lite interest of the principle amount”.

14. These crucial admissions destroy the case of complainant.

Because of these admissions, it appears that Ex.P.5 /Receipt was brought in to existence with afterthought.

15. P.W.1 added that Ex.P.5 was written in the presence of witnesses and those witnesses were of transaction of earlier promissory note and one Srinivasa Rao and Bhaskar Rao who were resident of Srikakulam and that P.W.1 has close acquaintance with them. Admission of this fact of close acquaintance of P.W.1 with these two attestors further lead to doubt the theory of the complainant.

16. Ex.P.5 is unreliable for other reasons. P.W.1 knows not whether any witnesses signed on Ex.P.5 or not. P.W.1 admits that there is a little difference in the signatures of two attestors when compared with

Ex.P.5 and the Xerox copy of promissory note. This is another infirmity to the case of complainant.

17. Evidence of P.W.2 is also worthless for the reason he has no personal knowledge about the facts mentioned in his examination in Chief affidavit. P.W.2 is wire puller of P.W.1 is clear from the fact that P.W.2 admits in cross examination that he was brought by P.W.1 to Court for evidence and P.W.1 explained P.W.2 how he has to depose in the Court.

Furthermore, P.W.2 knows not the details of his examination in chief affidavit.

18. Further P.W.1 also admits that there is an over writing in

Ex.P.5/receipt with regard to cheque number. This admission further leads to doubt the case of complainant.

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19. From the above observations, it is so clear that P.W.2 is tutored by P.W.1 and P.W.2 knows not what his examination in Chief affidavit contains. The theory of the complainant is seriously doubtful for other reasons. Curiously enough, as per the case of P.W.1, accused was said to have executed a promissory note for sum of Rs.1,20,000/- on 20.01.2012. To this aspect, P.W.1 admits that Xerox copy of promissory note that was filed

before this court as if it was executed by accused does not disclose the date

of 20.01.2012.

20. As rightly contended by the learned defence counsel, the cheque number was over written in Ex.P.5. Ex.P.5 is not a promissory note and it is a receipt. When complainant did not plea about execution of Ex.P.5 in his complaint, it is unsafe to relay upon Ex.P.5. If accused is really executed a promissory note as contended by P.W.1, and issued cheque, P.W.1 would have demanded for pendenti lite interest. Admittedly, Ex.P.1 does not disclose any pendenti lite interest on the principal sum. P.W.1 admits that same.

Therefore, the theory of P.W.1 is doubtful. All these facts show that

P.W.1/complainant fails to prove legally enforceable debt.

21. But, in this case on hand, the execution of promissory note is specifically denied. If that is so, it is the initial burden of P.W.1 to prove the execution of such promissory note to shift the burden on accused. No doubt, as rightly contended by the learned counsel for the complainant, as soon as the complainant discharges the burden to prove that the instrument was executed by the accused, the rules of presentations under sections 118 and 139 of help him shift the burden on the accused. But, in this case, the complainant fails to discharge his initial burden to believe the alleged execution of promissory note.

22. When P.W.1 admits that he did not mention anything about the execution of Ex.P.5 in his complaint, it can be safely for inferred that Ex.p.5 is bolstered up document. The internal nature of this document/Ex.P.5 is such that it is shern of any genuineness. It appears that Ex.P.5 was brought into existence with afterthought and with support of two attestors who are admittedly having close acquaintance with P.W.1. Mulling over all these 8 facts and circumstances, this Court opines that the complainant fails to prove that the accused to discharge the alleged debt of Rs. 1,20,000/- has got issued a cheque bearing No.924783 on 27.06.2013 for Rs.1,20,000/- drawn at

Bank of Baroda, Srikakulam and that the debt is not a legally enforceable debt. Point No.1 is answered in the negative.

23. Point no.2:- If P.W.1 returned the alleged promissory note to accused and executed Ex.P.5 by accused, this crucial aspect would have been referred to in the complaint or in the legal notice/Ex.P.3 or in the examination in chief affidavits of P.Ws.1 and 2. Therefore, when the legally enforceable debt is not proved by P.W.1, Ex.P.1/cheque alone is insufficient to convict the accused. Judged from the documents, Exhibits P.1 to P.5, which are disproved, in other words, the contents of those documents are not established by P.W.1, this is a case in which the essential ingredients of section 138 of NI Act are not attracted. The essential factum of ' legally enforceable debt'' is not proved in this case with cogent evidence.

24. As was observed in B. Raja Krishnaji vs Kadam Kondoji And

State Of Andhra Pradesh, the offence under Section 138 of the N.I.Act can be completed only with the concatenation of a number of the acts.

Following are the acts which are the components of the said offence.

1) Drawing of the cheque

2) Presentation of the cheque in to the Bank.

3) Returning of the cheque unpaid by the drawee bank.

4) Giving notice in writing to the drawer of the cheque demanding the payment of the cheque amount.

5) Failure of the drawer to make payment within 15 days of the receipt of the notice.

25. In the case on hand, the complainant has taken inconsistent plea as to the existence of debt or other liability. In one hand, as can be seen from the complaint, when P.W.1 failed to produce the promissory note and failed to prove Ex.P.5, this case must fail. Because of this inconsistency, 9 this Court is in no doubt to conclude that the debt or liability as required under Section 138 of NI Act is not successfully proved and that the essential ingredients of section 138 of NI Act, as required in the case of B. Raja

Krishnaji (supra) are not established in this case.

26. Pondering over all these facts and circumstances, this court holds that although Ex.P.1 was dishonoured for the reason of opening balance insufficient in the account of accused, legally enforceable debt or other liability has not been proved in this case and so accused must be let off in this case . Point No.2 is answered accordingly.

27.Point no.3:- It follows, the prosecution/Complainant fails to prove the guilt of accused for the offence under section 138 of NI Act beyond all reasonable doubt. Point No.3 is answered in the negative.

28. In the result, the accused is found not guilty for the offence under section 138 of the Negotiable Instruments Act and he is acquitted for the same under section 255(1) of the Code of Criminal Procedure, 1973. The bonds and bail bond of accused, if any, shall stand canceled after lapse of six months.

Typed to my dictation, corrected and pronounced by me in the open court on this the 27th day of April, 2017.

Sd/- Y.Srinivasa Rao

Spl. Judicial Magistrate of First Class,

Prohibition & Excise Court,

Srikakulam.

APPENDIX OF EVIDENCE

WITNESS EXAMINED

FOR PROSECUTION : FOR DEFENCE :

P.W.1: Shri Matta Jayaraj Kumar P.W.2: Shri Kuncham Srinivasa Rao 10

DOCUMENTS MARKED

FOR PROSECUTION: Ex.P.1: Cheque bearing No.924783, dt. 27.06.2013. Ex.P.2: Bank return memo, dt. 01.07.2013 Ex.P.3: Officie copy of legal notice, dt.18.07.2013 Ex.P.4: Postal acknowledgment, dt. 19.07.2013 Ex.P.5: Receipt, dt.27.06.2013. FOR DEFENCE:

Nil MATERIAL OBJECTS MARKED: Nil.

Sd/- Y.Srinivasa Rao

Spl.Judl.Magistrate of I Class, Prohibition and Excise Court, Srikakulam.

Copy submitted to the Hon’ble I Addl.District Judge, Srikakulam.

1

Calendar and Judgment Calendar Cases tried by the Spl. Judl. Magistrate of I Class, Prohibition and Excise, Srikakulam.

Date of Offence : 28-05-2011 Report or complaint : 29-05-2011 Apprehension of Accused : 01-06-2011 Release on bail : 01-06-2011 Commencement of trial : 23-06-2015 Close of trial : 25-04-2017 Sentence of order : 26-04-2014 Explanation for delay : This case was transferred from 1st Addl. Junior Civil Judge Court, Srikakulam as per Hon’ble District Court proceedings in Dis.No.1559/dt.27.03.2012 and the same is received to this court on 28-6-2012. NBW was pending against accused since 21.07.2016 and it was canceled on 25.04.2017. Hence, the delay.

Calendar and Judgment in C.C.No.128/2012 (Old C.C. No.393/2011) on

the file of Spl. Judl. Magistrate of I Class Court, Proh. & Excise,

Srikakulam.

Name of the Complainant: State represented by the Sub Inspector of Police, Etcherla Police Station.

Name of accused, Father’s name Age, Callling, Religion, Village Mandal

Sheik Munna, S/o Julfukar Ali Butto, Munispatnam street, Jainagar Dhamanagar, Bhadrak, driver of lorry bearing No. OR 09 L 1391, DL. No. OR.2220080006286. Ph. No.09853815476

Offence: Causing death by rash or negligent act (304-A of IPC);

Finding: Not guilty. Sentence or order:- In the result, accused is found not guilty for the offences punishable under Section 304-A of IPC and he is acquitted for the same under Section 255(1) of Cr.P.C. The bonds and bail bonds of accused shall stand canceled after lapse of six months.

Sd/- Y. Srinivasa Rao

Spl. Judl. Magistrate of I Class,

Proh. and Excise Court, Srikakulam.

Copy to:

1.The Hon’ble 1st Addl. District Judge, Srikakulam.

2. The Superintendent of Police, Srikakulam.

2

IN THE COURT OF SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS,

PROHIBITION AND EXCISE COURT, SRIKAKULAM.

PRESENT

SHRI Y.SRINIVASA RAO

Special Judicial Magistrate of First Class, Prohibition & Excise Court, Srikakulam.

WEDNESDAY, THE TWENTY SIXTH DAY OF APRIL,

TWO THOUSAND AND SEVENTEEN.

CALENDAR CASE No.128 of 2012 (Old C.C.No.393/2011) Between: State represented by the Sub Inspector of Police, Etcherla Police Station.

..Complainant.

And: Sheik Munna, S/o Julfukar Ali Butto, Munispatnam street, Jainagar Dhamanagar, Bhadrak, driver of lorry bearing No. OR 09 L 1391, DL. No. OR.2220080006286. Ph. No.09853815476.

…..Accused.

This case coming on 25.04.2017 for final hearing before me in the presence of Asst. Public Prosecutor for Complainant and of Sri K. Nanajee, Advocate for accused and upon hearing both sides and having stood over till this day for consideration, this court delivered the following

JUDGMENT:-

01. The Sub Inspector of Police, Etcherla Police Station filed charge sheet against the accused in Cr. No. 128/2011 under Section 304-A Indian Penal Code, 1860 (here in after referred as I.P.C.).

2. The case of prosecution succinctly:-

Accused is said to be driver of lorry bearing No. AP 09 L 1391 and resident of Jainagar Dhamanagar, Bhadrak, Orissa State. The alleged offence was taken place on NH-16 road opposite to petrol Bunk,

Arinamakkivalasa village, Etcherla mandal. On 28.05.2011 in the evening, both deceased (D.1 and D.2) went to Dallipeta by motorcycle. While D.1 was 3 riding the motorcycle, they reached petrol bunk, Arinamakkivalasa. The accused was said to have negligently parked his lorry without following the rules and did not switch on the signal lights for which, as it was dark, D.1 rammed into the lorry from its back and D.2 sustained severe head injuries and as a result of this D.1 and D.2 died. Based on the complaint of

L..W.1/Karnapu Ramu, L.W.26/ Sri V. Gopinath, Sub Inspector of Police,

Etcherla Police Station registered this case in Crime No.128/2011 under

Sections 304-A of IPC and investigated into. Accused was arrested on 01..06..2011. Inquest was held over the dead body of the D.1 in presence of

L.Ws.13 to 17. L.W.25 held over the dead body of D.2 and sent both corps to the RIMS General Hospital for autopsy. After completion of investigation, L.W.26/ Sri V. Gopi Nath, Sub Inspector of Police, Etcherla

Police Station filed charge sheet. Hence, the charge.

3. The case was taken on file against accused for the offence under Section 304-A IPC.

4. On appearance of the accused, copies of documents were furnished to him under section 207 of Criminal Procedure Code and Rule 8 of

Criminal Rules of Practice and he was examined under Section 251 of

Criminal Procedure Code by explaining the substance of accusation for the offence under Section 304-A IPC against accused. On understanding the contents of the same, the accused pleaded not guilty and claimed for trial.

5. In the trial afforded to both parties, on behalf of the prosecution side, P.Ws. 1 to 13 are examined and Exs. P.1 to Ex.P.11 were marked.

6. After closure of prosecution evidence, accused was examined under Section 313 Cr.P.C., by putting the incriminating material available against him, for which, the accused denounced the incriminating material and reported no defence evidence.

7. Heard both sides.

8. Above being the position on record, now the point for determination in the present case is, as to.

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Whether accused caused death of D.1/Karnapu Parasayya and D.2/Chilla Ramu by parking the lorry bearing registration No. AP 30 L 1391 negligently not amounting to culpable homicide and thereby committed offence punishable under Section 304 –A of Indian Penal Code? If so, whether prosecution established the guilt of accused for the same beyond all reasonable doubt?

9. Point: In short, the theory of prosecution, in this case, is such that on 28.05.2011 in the evening, both deceased (D.1 and D.2) went to

Dallipeta by motorcycle. While D.1 was riding the motorcycle, they reached petrol bunk, Arinamakkivalasa. The accused was said to have negligently parked his lorry without following the rules and did not switch on the signal lights for which, as it was dark, D.1 rammed into the lorry from its back and

D.2 sustained severe head injuries and as a result of this D.1 and D.2 died.

10. The learned Assistant Public Prosecutor argues that the identity of accused, the alleged rash and negligence act of accused and death of D.1/Karnapu Parasayya and D.2/Chilla Rmu are established from the evidence of P.Ws.1 to 13 and therefore accused must be punished in this case. On the other hand, the learned defense counsel submits that none of the prosecution witnesses supported to the case of prosecution and most of them were turned hostile. Therefore, accused must be let off by extending benefit of doubt. He further argued that the essential ingredients of

Section 304-A of IPC are absent in this case.

11. I will now show the reasons justifying that the prosecution fails to establish the rash or negligent act of accused.

12. The prosecution relied upon the oral evidence of P.Ws.1 to 13 and Exs.P.1 to P.11. As seen from Ex.P.10/FIR, the accident was said to have been occurred on 28.05.2011, near Arinam Akkivalasa Petrol bunk, on NH16 road. Ex.P.1/Report of P.W.1 also indicates the scene of offence and the date of accident.

13. To attract Section 304-A of IPC, as to the facts of this case are concerned, the prosecution has to prove the following essential ingredients beyond all reasonable doubt.

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i) Accused negligently parked the lorry bearing No. AP 30 L 1391 at the time of accident.

ii) Accused parked the lorry negligently.

iii) The death of D.1/Karnapu Parasayya and D.2/Chilla Ramu is not amounting to the culpable homicide.

14. At this stage, it is important to refer to a ruling reported in

Munshi Prasad Vs. State of Bihar, AIR 2002 SC 16 where in the Hon'ble

Supreme court of India observed that neither the inquest report nor the postmortem report can be termed to be a basic evidence or a substantive evidence.

15. P.W.1 testifies that while the lorry was going on and it was stopped suddenly and then both the deceased dashed the lorry. P.W.1 knows not who the driver is neither in Ex.P.10/FIR nor in Ex.P.1 report the name of accused was written. The fact that the driver of the lorry ran away soon after the accident showing that P.W.1 knows not who the accused is.

16. P.W.2 is husband of deceased by name Parasayya @ Ramu. This witness only speaks that the accident occurred at the Arinamakkivalasa.

This witness has no definite knowledge about the accident is clear from the fact that he pretends as if the lorry dashed the motorcycle of the both deceased. In fact, it is not the case of prosecution that a lorry dashed motorcycle. The case is such that the deceased rammed into the lorry where the lorry had been stationed negligently at the scene of offence.

17. P.W.3 is a hearsay witness. This witness had information about the accident through somebody over phone. He knows not who informed about the accident. He only speaks that the lorry was stationed without signal lights and then D.1 dashed the lorry. Who stationed the lorry and what was the number of the lorry are faded away from the memory of this witness.

18. P.W.4 is son of the deceased No.2 by name Chilla Ramu. He is also hearsay witness. He poses to have gone to the place where the inquest was held. Despite this witness says that D.1 and D.2 dashed the lorry which was said to have been parked negligently at the road. Who did park this 6 lorry negligently ? There is no answer from the prosecution. It was so dark at the time of the accident. From the evidence of P.W.1, it is apparent that driver of the lorry ran away soon after the accident and he knows not who he is.

19. P.W.4 has no clear knowledge about the occurrence of the accident could be clear from the fact that he is under the impression that the lorry stopped suddenly and then D.1 dashed it. This witness speaks nothing about the alleged negligence of the driver the lorry. P.W.5 is hearsay witness who does not know by whose negligence the accident was occurred. Evidence of P.W.6 is the same effect of the evidence of P.W.5.

20. P.W.7 is a hearsay witness who did not whisper about the name of accused and he knows not by whose negligence the accident was occurred.

The reason for the death of the two deceased is such that they dashed a stationed lorry. P.W.7 knows not how the accident occurred and who was responsible for the death of two deceased. P.W.8 admits in cross examination that he does not know how the accident was occurred. P.W.9 also admits the same. Evidence of P.W.10 is limited to speak about the contents of Ex.P.6/Scene observation repaort. Ex.P.6 is too vague to give any information as to identification of accused is concerned.

21. Of course, as seen from Ex.P.7 /MVI Report, with fulcrum of the oral evidence of P.W.11, the accident is outcome of not due to mechanical defects of the alleged crime vehicle. The question here is such that who stationed the lorry negligently and who was the responsible for the accident. The investigation done by L.W.5/Metta Chandra Rao and P.W.13 does not speak anything about these crucial aspects it appears that the object of Section 156 and 157 of the code of Criminal Procedure, 1973 is totally ignored by these officials in ascertaining the true facts for the cause of action. This is an infirmity to the case of prosecution.

22. Of course, a routine rough sketch has been prepared as in

Ex.P.11 but no inference adverse could be drawn from this document to attribute the accused as negligent in parking the lorry at the scene of offence. No doubt, it is true, as seen from Exs.P.8 and P.9 (Postmortem 7 reports of both deceased), the prosecution establishes that the death of these two deceased. P.W.12 speaks about the cause of death of D.1 and D.2 with support of Exs.P.8 and P.9. But, by whose negligence such death is caused is not properly explained by the prosecution.

23. P.W.13 admits that Ex.P.1 does not reflect that accused drove the crime vehicle nor did dash the other vehicle. P.W.13 further admits that

Ex.P.1 reflects that the vehicle of the deceased dashed the vehicle of the accused. In such a case, the burden heavily rests on the prosecution to prove that the act of accused is negligent. But there is no such material on the record to hold accused did any act of negligence.

24. At this juncture, it is important to refer to section 304- A of

Indian Penal Code, 1860 which reads as infra:-

Section 304A - Causing death by negligence Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

25. Keeping in view, the essential ingredients of Section 304-A of

IPC as discussed above and on thorough consideration of the entire evidence available on record, this Court is in no doubt to conclude that the prosecution fails to prove the essential ingredients of Section 304-A of IPC beyond all reasonable doubt. Point is answered in the negative.

26.In the result, accused is found not guilty for the offence punishable under Section 304-A of IPC and he is acquitted for the same under Section 255(1) of Cr.P.C. The bonds and bail bonds of accused shall stand canceled after lapse of six months.

Typed to my dictation, corrected and pronounced by me, in open court, this the 26th day of April, 2017.

Sd/- Y. Srinivasa Rao

Spl. Judl. Magistrate of I Class,

Prohibition and Excise Court,

Srikakulam.

8

Appendix of evidence

Witnesses examined.

For prosecution: P.W.1: Sri Karnapou Ramu P.W.2: Sri Karnapu Rama Appalasuri P.W.3: Sri Karnapu Ramaapparao P.W.4: Sri Chilla Yerrayya P.W.5: Sri Jayaprakash Guptha P.W.6: Sri Mahammad Naheem P.W.7: Sri Chilla Ramu Naidu P.W.8: Sri Kambabu Narasimhulu P.W.9: Sri Konthala Laxmanareddi P.W.10: Sri Peddanaini Narsunaidu P.W.11: Sri R. Anil, Asst. Motor Vehicle Inspector P.W.12: Dr Manas Ranjan Sahu, Asst. Professor, RIMS Hospital, Srikakulam L.W.13: Sri V. Gopi Nath, Sub Inspector of Police, Etcherla P.S.

For defence: None

Documents marked.

For prosecution: Ex.P.1: Report of P.W.1, dt. 29.05.2011 Ex.P.2: Section 161 of Cr.P.C. statement of P.W.5, dt.30.05.2011 Ex.P.3: Section 161 of Cr.P.C. statement of P.W.6, dt. 30.05.2011 Ex.P.4: Inquest report of D.1, dt.29.05.2011 Ex.P.5: Inquest report of D.2, dt. 29.05.2011 Ex.P.6: Scene observation report, dt. 29.05.2011 Ex.P.7: MVI Report, dt. 02.06.2011 Ex.P.8: Postmortem certificate of D.1, dt.06.06.2011 Ex.P.9: Postmortem certificate of D.2, dt.06.06.2011 Ex.P.10: First Information report, dt.29.05.2011 Ex.P.11: Rough Sketch, dt.29.05.2011 For defence: Nil. Material object: Nil

Sd/- Y. Srinivasa Rao

Spl. Judl. Magistrate of I Class,

Proh. and Excise Court, Srikakulam.

Copy to:

1.The Hon’ble 1st Addl. District Judge, Srikakulam.

2. The Superintendent of Police, Srikakulam.

1

Calendar and Judgment

Calendar Cases tried by the Spl. Judl. Magistrate of I Class,

Prohibition and Excise, Srikakulam.

Date of Offence : 10-02-2016 Report or complaint : 10-02-2016 Apprehension of Accused : 10-02-2016 Release on bail : 10-02-2016 Commencement of trial : 16-03-2017 Close of trial : 06-04-2017 Sentence or order : 07-04-2017 Explanation for delay : This case was registered on 09-12-2016; trial is commenced on 16.03.2017 and passed sentence on 07.04.2017. Hence, no delay.

Calendar and Judgment in C.C.No.347/2016 on the file of Spl. Judl.

Magistrate of I Class Court, Prohibition and Excise Court, Srikakulam.

Name of the Complainant: State represented by the Sub Inspector of Police, Proh. & Excise Station, Srikakulam.

Name of accused, Father’s name Age, Calling, Religion, Village Mandal

Kanchi Appamma, W/o Rama Rao, age 35 years, C/o Kapu, R/o Tallavalasa Gara mandal. ------------------------------------------------------------------------------------ - Offence: Whoever possesses liquor without license intending to sell for public on profit shall be punishable under section 8(b) (i) of A.P.P. Act, 1995. Finding: Not guilty. Sentence or order:- In the result, accused is found not guilty for the offence punishable under section 8 (b) (i) of Andhra Pradesh Prohibition Act, 1995 and she is ACQUITTED for the same under section 248 (1) of Criminal Procedure Code, 1973. The bond and bail bonds of accused, if any, shall stand canceled after lapse of six months. M.O.1 shall be destroyed after lapse of appeal time.

Sd/- Y. Srinivasa Rao

Spl. Judl. Magistrate of I Class,

Proh.& Excise Court, Srikakulam.

Copy to:

1)The Hon’ble 1st Addl. District Judge, Srikakulam.

2) The Deputy Commissioner of Prohibition & Excise, Srikakulam.

2

IN THE COURT OF SPECIAL JUDICIAL MAGISTRATE OF FIRST

CLASS, PROHIBITION AND EXCISE COURT, SRIKAKULAM.

PRESENT

SHRI Y.SRINIVASA RAO

Special Judicial Magistrate of First Class, Prohibition & Excise, Srikakulam.

MONDAY, THE FIRST DAY OF MAY,

TWO THOUSAND AND SEVENTEEN.

CALENDAR CASE No.302/2017

Between:

State Rep. by Prohibition & Excise Sub - Inspector, Prohibition & Excise Station, Ranastalam. …Complainant.

And: Thumpala Ramana, S/o Butchibabu, age 55 years, Kapu by caste, R/o Ravivalasa village, Ranastalam mandal. …Accused. This case is coming on 27.04.2017 for final hearing before me in the presence of Assistant Public Prosecutor (A.P.P) for the Complainant and Sri J. Raja Rao, Advocate for accused and having stood over to this day for consideration, this Court delivered the following

J U D G M E N T:-

This is an excise case and the accused was arraigned for the offence punishable under Section 34 (a) of Andhra Pradesh Excise Act, 1968, in Crime No. 64/2016-17 of Prohibition and Excise Station,

Ranastalam.

2.Brief facts of the prosecution case:-

The alleged offence was said to have been taken place on 23-10- 2016 at about 12.30 hours at Ranastalam. Accused is said to have committed offence by selling the liquor bottles. On 10-02-2016, at about 12.30 hours, L.W.3/ Sri P. Paparao, Proh. & Excise Inspector along with his staff are said to have found the accused who was said to have been in possession of 13 Nip bottles of Gold Race Prestige whiskey intended for 3 sale and then seized the property took sample sealed and affixed identity slips on the property and then arrested the accused under cover of

Occurrence report dated 10-02-2016 drafted at the spot. During the course of investigation, sample was sent for chemical analysis. The chemical examiner in turn, after due analysis of the sample, sent opinion that the said sample is Indian made liquor. During the course of investigation, the contraband except the sample has been produced before

Deputy Commissioner of Prohibition and Excise, Srikakulam for confiscation. After completion of investigation, L.W.4/ Smt. M.Vijayalaxmi,

Prohibition and Excise Sub Inspector, Srikakulam filed charge sheet.

Hence, the charge.

3. The case was taken on file against accused for the offence punishable under Section 8 (b) (i) of A.P. Prohibition Act, 1995.

4. On appearance of accused, copies of documents were furnished to him under section 207 of Criminal Procedure Code, 1973 and

Rule 8 of Criminal Rules of Practice and he was examined under section 239 of Criminal Procedure Code, 1973 for the offence under section 8(b)(i) of

AP Prohibition Act, 1995. A charge was framed for the same and the contents of charge were read over and explained to accused in Telugu. On understanding the contents of the same, the accused pleaded not guilty and claimed for trial1.

5. During the trial afforded to both parties, on behalf of the prosecution side, P.W.1 was examined and Exs. P.1 to P.4; and M.O.1 were marked.

6. After closure of prosecution evidence, accused was examined under section 313 Cr.P.C., by putting the incriminating material available against him and the accused denounced the incriminating material and 1 � After the enactment of AP Prohibition Act,1995, the offences relating to any liquor have to be dealt under section 8 (b) and section 8 (c) of AP Prohibition Act but not under section 34(a) of the AP Excise Act,1968 in view of the circular No.2166/97/DOE/C3,Dated 05-02-2005 issued the Commissioner of Prohibition and Excise: AP: Hyderabad.

4 reported no defense evidence.

7. Heard the learned Assistant Public Prosecutor and the learned defence counsel.

8. Now, a significant point for consideration is:

Whether accused committed an offence punishable under purview of section 8(b)(i) of AP Prohibition Act, 1995? If so, whether the prosecution proved the guilt of accused for the same beyond all reasonable doubt?

9. Point :- Accused is resident of Ravivalasa village of Ranastalam mandal. This is an Excise case. A salient feature of this case is such that

Ex.P.1 is the basis for this case and it is an occurrence report.

10. P.W.1/P. Paparao, Proh. and Excise Inspector, Srikakulam is the Investigation Officer. This Court has in evidence to show that the seizure of liquor bottles is not done in accordance with the procedure contemplated under Section 100 of Cr.P.C.

11. As seen from the charge sheet, the seizure was taken place on 10.02.2016 at 12.30p.m. But Ex.P.1/Occurrence report shows the seizure was taken place on 23.10.2016. P.W.1 also deposes as if the seizure was taken place on 23.10.2016. The prosecution relied upon Exs.P.1 to P.4.

Ex.P.1 is occurrence report; Ex.P.2 is First information Report; Ex.P.3 is letter of advice; and Ex.P.4 is Chemical Analysis Report. The specific submission of the learned defence counsel is on the following points: Ex.P.3 and Ex.P.4 lose their significance as the seizure of liquor bottles from the possession of accused is not in accordance with Section 100 of Cr.P.C. It is further argued that Ex.P.1 is hit under Section 25 and Section 27 of the

Indian Evidence Act. Ex.P.2 is not prepared in accordance with the procedure contemplated under Section 154 of Cr.P.C. It is not out of place to see that as per section 31 of AP Prohibition Act, 1995, the provisions of

AP Prohibition Act shall have over riding effect.

12. Now, this Court has in evidence to show that the alleged seizure of liquor bottles is seriously doubtful owing to non examination of 5 independent witnesses at the scene of offence.

13. A significant factor of this case is such that no independent witnesses were examined at the scene of offence, to trust the alleged seizure of liquor bottles, despite it is a busy locality. P.W.1 admits that no independent witnesses were secured, nevertheless the scene of offence is busy locality. Admittedly, no action was initiated under section 100 (8) of

Cr.P.C. to prosecute the persons who are alleged to have refused to act as mediators. This is another infirmity to the case of prosecution. P.W.1 admits that no EAL numbers and batch numbers were mentioned on Ex.P.1 and that bottles like M.O.1 are available in the market and no independent witnesses were examined, nevertheless the scene of offence is a busy locality.

14. From the above admissions of P.W.1, it is clear that the main infirmity of this case is such that seizure of liquor bottles is doubtful. In

Gajamker Narayana Vs. State of Andhra Pradesh, 2005 (3) ALT (Crl.) 1 (A.P.), where it was pointed out that where contraband liquor is seized under the prohibition Act, the panch witnesses for the seizure should be independent respectable persons of the locality where the offence was committed.

15. As rightly argued by the learned defence counsel, as to the evidentiary value of the Chemical analysis report/Ex.P.4 is concerned, of course, this document indicates that the sample at the serial number 17661 (“Gold Race Prestige whiskey”) is Indian liquor.

16. Inasmuch as the seizure of liquor bottles from the possession of accused under the cover of Ex.P.1 is not properly proved, accused is entitled for benefit of doubt. The story of prosecution is spun out as an artificial theory even as seen from the dicta observed in Yeduru

Srinivasulu Reddy Vs State of Andhra Pradesh, 2002(1) ALD (Crl) 347, where in it was observed that “when no mediators were examined, though search conducted in a busy locality, the conviction of accused is not sustainable.” 6

17. It follows, the prosecution fails to prove the guilt of accused for the offence under section 8 (b) (i) of Andhra Pradesh Prohibition Act, 1995 beyond all reasonable doubt. Point is answered in the negative.

18. In the result, accused is found not guilty for the offence punishable under section 8 (b) (i) of Andhra Pradesh Prohibition Act, 1995 and she is ACQUITTED for the same under section 248 (1) of Criminal

Procedure Code, 1973. The bond and bail bonds of accused, if any, shall stand canceled after lapse of six months. M.O.1 shall be destroyed after lapse of appeal time.

Typed to my dictation, corrected and pronounced by me in the open court on this the 1st day of May, 2017.

Sd/- Y. Srinivasa Rao

Special Judl. Magistrate of I Class,

Prohibition & Excise, Srikakulam.

APPENDIX OF EVIDENCE

WITNESS EXAMINED

FOR PROSECUTION :

P.W.1: Sri P. Paparao , Inspector of Police, Srikakulam. FOR DEFENCE : None

DOCUMENTS MARKED

FOR PROSECUTION: Ex.P.1: Occurrence report, dt.10-02-2016. Ex.P.2: First Information Report in crime No. 80/2016-17, dt. 10-02-2016. Ex.P.3: Letter of advice, dt. 10-02-2016. Ex.P.4: Chemical Analysis Report, dt. 22.09.2016. FOR DEFENCE: Nil

MATERIAL OBJECTS MARKED

M.O.1 :- Sample bottle of Gold Race Prestige whiskey.

Sd/- Y. Srinivasa Rao

Spl. Judl. Magistrate of I Class,

Proh.& Excise Court, Srikakulam. Copy to:

1)The Hon’ble 1st Addl. District Judge, Srikakulam.

2) The Deputy Commissioner of Prohibition & Excise, Srikakulam.

1

Calendar and Judgment

Calendar Cases tried by the Spl. Judl. Magistrate of I Class,

Prohibition and Excise, Srikakulam.

Date of Offence : 27-07-2016 Report or complaint : 27-07-2016 Apprehension of Accused : 27-07-2016 Release on bail : 27-07-2016 Commencement of trial : 18-04-2017 Close of trial : 25-04-2017 Sentence or order : 25-04-2017 Explanation for delay : This case was registered on 09-12-2016; trial is commenced on 18.04.2017 and passed sentence on 25.04.2017. Hence, no delay.

Calendar and Judgment in C.C.No.450/2016 on the file of Spl. Judl.

Magistrate of I Class Court, Prohibition and Excise Court, Srikakulam.

Name of the Complainant: State represented by the Sub Inspector of Police, Proh. & Excise Station, Ranastalam.

Name of accused, Father’s name Age, Calling, Religion, Village Mandal

Sorada Kurma Rao, S/o Ramudu, age 32 years, C/o Vadabalija, R/o Pedakovvada (Village), Ranastalam (mandal). ---------------------------------------------------------------------------------- Offence: Whoever possesses liquor without license intending to sell for public on profit shall be punishable under section 8(b) (i) of A.P.P. Act, 1995. Finding: Not guilty. Sentence or order:- In the result, accused is found not guilty for the offence punishable under section 8 (b) (i) of Andhra Pradesh Prohibition Act, 1995 and he is ACQUITTED for the same under section 248 (1) of Criminal Procedure Code, 1973. The bond and bail bonds of accused, if any, shall stand canceled after lapse of six months. M.O.1 shall be destroyed after lapse of appeal time.

Sd/- Y. Srinivasa Rao

Spl. Judl. Magistrate of I Class,

Proh.& Excise Court, Srikakulam.

Copy to:

1)The Hon’ble 1st Addl. District Judge, Srikakulam.

2) The Deputy Commissioner of Prohibition & Excise, Srikakulam.

2

IN THE COURT OF SPECIAL JUDICIAL MAGISTRATE OF I CLASS,

PROHIBITION AND EXCISE COURT, SRIKAKULAM.

PRESENT

SHRI Y.SRINIVASA RAO

Special Judicial Magistrate of First Class, Prohibition & Excise, Srikakulam.

TUESDAY, THE TWENTY FIFTH DAY OF APRIL,

TWO THOUSAND AND SEVENTEEN.

CALENDAR CASE No.450/2016

Between:

State Rep. by Prohibition & Excise Sub - Inspector, Prohibition & Excise Station, Ranastalam. …Complainant.

And: Sorada Kurma Rao, S/o Ramudu, age 32 years, C/o Vadabalija, R/o Pedakovvada (Village), Ranastalam (mandal). …Accused. This case is coming on 25.04.2017 for final hearing before me in the presence of Assistant Public Prosecutor (A.P.P) for the Complainant and Sri J. Raja Rao, Advocate for accused and having stood over to this day for consideration, this Court delivered the following

J U D G M E N T:-

This is an excise case and the accused was arraigned for the offence punishable under Section 34 (a) of Andhra Pradesh Excise Act, 1968, in Crime No. 47/2016-17 of Prohibition and Excise Station,

Ranastalam.

2.Brief facts of the prosecution case:-

The alleged offence was said to have been taken place on 27-07-2016 at about 2.30 p.m at Peddakovvada village. Accused is said to have committed offence by selling the liquor bottles. On 27-07-2016, at about 2.30 p.m., L.W.4/ Smt Bh. Kiran Maneswari, Proh. & Excise Inspector along with her staff are said to have found the accused who was said to have been in possession of 07 Nip bottles of Director’s Special Fine 3 whiskey intended for sale and then seized the property took sample sealed and affixed identity slips on the property and then arrested the accused under cover of Occurrence report dated 27-07-2016 drafted at the spot.

During the course of investigation, sample was sent for chemical analysis.

The chemical examiner in turn, after due analysis of the sample, sent opinion that the said sample is Indian made liquor. During the course of investigation, the contraband except the sample has been produced before

Deputy Commissioner of Prohibition and Excise, Srikakulam for confiscation. After completion of investigation, L.W.4/ Smt. Bh. Kiran

Maneswari, Prohibition and Excise Sub Inspector, Ranastalam filed charge sheet. Hence, the charge.

3. The case was taken on file against accused for the offence punishable under Section 8 (b) (i) of A.P. Prohibition Act, 1995.

4. On appearance of accused, copies of documents were furnished to him under section 207 of Criminal Procedure Code, 1973 and

Rule 8 of Criminal Rules of Practice and he was examined under section 239 of Criminal Procedure Code, 1973 for the offence under section 8(b)(i) of

AP Prohibition Act, 1995. A charge was framed for the same and the contents of charge were read over and explained to accused in Telugu. On understanding the contents of the same, the accused pleaded not guilty and claimed for trial1.

5. During the trial afforded to both parties, on behalf of the prosecution side, P.W.1 was examined and Exs. P.1 to P.4; and M.O.1 were marked.

6. After closure of prosecution evidence, accused was examined under section 313 Cr.P.C., by putting the incriminating material available against him and the accused denounced the incriminating material and 1 � After the enactment of AP Prohibition Act,1995, the offences relating to any liquor have to be dealt under section 8 (b) and section 8 (c) of AP Prohibition Act but not under section 34(a) of the AP Excise Act,1968 in view of the circular No.2166/97/DOE/C3,Dated 05-02-2005 issued the Commissioner of Prohibition and Excise: AP: Hyderabad.

4 reported no defense evidence.

7. Heard the learned Assistant Public Prosecutor and the learned defence counsel.

8. Now, a significant point for consideration is:

Whether accused committed an offence punishable under purview of section 8(b)(i) of AP Prohibition Act, 1995? If so, whether the prosecution proved the guilt of accused for the same beyond all reasonable doubt?

9. Point :- Accused is resident of Peddakovvada village of

Ranastalam mandal. This is an Excise case. A salient feature of this case is such that Ex.P.1 is the basis for this case and it is an occurrence report.

10. P.W.1/Bh. Kiran Maneswari, Proh. and Excise Inspector,

Ranastalam is the Investigation Officer. This Court has in evidence to show that the seizure of liquor bottles is not done in accordance with the procedure contemplated under Section 100 of Cr.P.C.

11. The prosecution relied upon Exs.P.1 to P.4. Ex.P.1 is occurrence report; Ex.P.2 is First information Report; Ex.P.3 is letter of advice; and Ex.P.4 is Chemical Analysis Report. The specific submission of the learned defence counsel is on the following points: Ex.P.3 and Ex.P.4 lose their significance as the seizure of liquor bottles from the possession of accused is not in accordance with Section 100 of Cr.P.C. It is further argued that Ex.P.1 is hit under Section 25 and Section 27 of the Indian

Evidence Act. Ex.P.2 is not prepared in accordance with the procedure contemplated under Section 154 of Cr.P.C. It is not out of place to see that as per section 31 of AP Prohibition Act, 1995, the provisions of AP

Prohibition Act shall have over riding effect.

12. Now, this Court has in evidence to show that the alleged seizure of liquor bottles is seriously doubtful owing to non examination of independent witnesses at the scene of offence.

13. A significant factor of this case is such that no independent 5 witnesses were examined at the scene of offence, to trust the alleged seizure of liquor bottles, despite it is a busy locality. P.W.1 admits that no independent witnesses were secured, nevertheless the scene of offence is busy locality. Admittedly, no action was initiated under section 100 (8) of

Cr.P.C. to prosecute the persons who are alleged to have refused to act as mediators. This is another infirmity to the case of prosecution.

14. From the above admissions of P.W.1, it is clear that the main infirmity of this case is such that seizure of liquor bottles is doubtful. In

Gajamker Narayana Vs. State of Andhra Pradesh, 2005 (3) ALT (Crl.) 1 (A.P.), where it was pointed out that where contraband liquor is seized under the prohibition Act, the panch witnesses for the seizure should be independent respectable persons of the locality where the offence was committed.

15. As rightly argued by the learned defence counsel, as to the evidentiary value of the Chemical analysis report/Ex.P.4 is concerned, of course, this document indicates that the sample at the serial number 11977 (“Director’s Special Fine whiskey”) is Indian liquor.

16. Inasmuch as the seizure of liquor bottles from the possession of accused under the cover of Ex.P.1 is not properly proved, accused is entitled for benefit of doubt. The story of prosecution is spun out as an artificial theory even as seen from the dicta observed in Yeduru

Srinivasulu Reddy Vs State of Andhra Pradesh, 2002(1) ALD (Crl) 347, where in it was observed that “when no mediators were examined, though search conducted in a busy locality, the conviction of accused is not sustainable.”

17. It follows, the prosecution fails to prove the guilt of accused for the offence under section 8 (b) (i) of Andhra Pradesh Prohibition Act, 1995 beyond all reasonable doubt. Point is answered in the negative.

18. In the result, accused is found not guilty for the offence punishable under section 8 (b) (i) of Andhra Pradesh Prohibition Act, 1995 and he is ACQUITTED for the same under section 248 (1) of Criminal 6

Procedure Code, 1973. The bond and bail bonds of accused, if any, shall stand canceled after lapse of six months. M.O.1 shall be destroyed after lapse of appeal time.

Typed to my dictation, corrected and pronounced by me in the open court on this the 25th day of April, 2017.

Sd/- Y. Srinivasa Rao

Special Judl. Magistrate of I Class,

Prohibition & Excise, Srikakulam.

APPENDIX OF EVIDENCE

WITNESS EXAMINED

FOR PROSECUTION :

P.W.1: Sri Bh. Kiran Maneswari , Inspector of Police, Ranastalam. FOR DEFENCE : None

DOCUMENTS MARKED

FOR PROSECUTION: Ex.P.1: Occurrence report, dt.27-07-2016. Ex.P.2: First Information Report in crime No. 47/2016-17, dt. 27-07-2016. Ex.P.3: Letter of advice, dt. 27-07-2016. Ex.P.4: Chemical Analysis Report, dt. 08.08.2016. FOR DEFENCE: Nil

MATERIAL OBJECTS MARKED

M.O.1 :- Sample bottle of Director’s Special Fine whiskey.

Sd/- Y. Srinivasa Rao

Spl. Judl. Magistrate of I Class,

Proh.& Excise Court, Srikakulam.

Copy to:

1)The Hon’ble 1st Addl. District Judge, Srikakulam.

2) The Deputy Commissioner of Prohibition & Excise, Srikakulam.

1

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF I CLASS,

PROHIBITION AND EXCISE COURT, SRIKAKULAM

Present: Sri Y.Srinivasarao, Spl. Judl. Magistrate of First class, Prohibition and Excise Court, Srikakulam.

Thursday, this the 27th day of April, 2017.

D.V.C.No.12/2015

Between:

1) Palavalasa Hymavathi, C/o Peda Apparao, 32 years, Pathinavanipeta veedhi, Amadalavalasa municipality and mandal, Srikakulam District.

2) Palavalasa Sribalaji, 6 years, rest do -- … Petitioners.

And

Palavalasa Venkata Lokesh Rajasekhar, S/o late Balaji, Flat No.45, 1st line, Santhinagar colony, Srikakulam Town and District. …Respondents. This case is coming on 25.04.2017 for final hearing before me in the presence of Sri S.T. Naidu, Advocate for the petitioner and of Sri M. Satyanarayana, Advocate for the respondent, and having stood over to this day for consideration, this Court delivered the following

O R D E R :-

This application is filed under Section 12 of Protection of Women from Domestic Violence Act, 2005 (herein after referred as Domestic

Violence Act) seeking to grant reliefs under Sections 18, 19, 20 and 22 of the Act.

2. The case of the petitioner succinctly:- 1st Petitioner is wife of the respondent. 2nd petitioner is their son.

Respondent is working as Junior Assistant in Public Works Department. His salary is Rs.35,000/- and odd per month. Respondent is resides in his own house Flat No.45, 1st Line, Santhinagar colony, Srikakulam town. Petitioners are residing at Amadalavalasa as respondent was said to have refused to maintain the petitioners. Respondent is having 0.20 cents of land and also he 2 is having house sites etc., Petitioners are in pathetic condition. Therefore, petitioners prays to grant reliefs under Section 18, 19, 20 and 22 of the

Act.

3. Respondent denied the case of petitioners and filed counter submitting that 1st petitioner used to create unnecessarily disputes and she does not take care of his old aged parents and she used to go out from the marital house without caring the respondent. In spite of mediation before elders, 1st petitioner did not change her attitude and she failed to fulfill the marital obligations. 1St petitioner was said to have willfully deserted the respondent. 1St petitioner filed HMOP No.115/2011 on the file of Hon'ble

Addl. Senior Judge's Court, Srikakulam and in which case he has been paying maintenance without any default. 1St petitioner put the respondent great mental agony and deserted him willfully. Respondent filed a divorce case

before the Hon'ble Addl. Senior Civil Judge's Court, Srikakulam. 1St

petitioner also filed MC No.19/2014 before Judicial Magistrate of I Class

Court, Srikakulam. Therefore, respondent prays to dismiss this case with costs.

4. During the course of enquiry on petitioner’s side, P.W.1 was examined and respondent’s R.W.1 was examined and no documentary evidence is adduced on either side.

5. Heard both sides.

6. Above being the position on record, now the short and significant point, though important, that arise for determination in the present case is, as to,

Whether the petitioners are entitled for reliefs of under Sections 18, 19, 20 and 22 of Protection of Women from Domestic Violence Act 2005, as prayed for?

7.Point:-. The marital relationship between P.W.1 and R.W.1 is an undisputed fact. 2nd petitioner is son of them. R.W.1 is a Junior Assistant in

Public Works Department, Srikakulam. Admittedly, P.W.1 filed M.C.

No.19/2014 on the file of Addl. Judicial Magistrate of I Class, Srikakulam and 3

HMOP No.115/2011 on the file of Honourable Senior Civil Judge's court,

Srikakulam.

8. The learned counsel for the petitioners argued that petitioners are unable to maintain themselves as respondent deserted them and respondent has sufficient means. On the other hand, the learned counsel for the R.W.1 contends that R.W.1 has been paying maintenance in HMOP

No.115/2011 and in M.C. No.19/2014. This fact was not denied by P.W.1. As seen from the evidence of P.W.1, the plea of P.W.1 is such that after death of father of R.W.1, R.W.1 and his mother were said to have created some false documents and played fraud against her and her son.

9. In cross examination, P.W.1 admits that she has been taken maintenance of Rs.1500/- per month in HMOP No.115/2011 for two years prior to filing of this case. This fact is conspicuously absent in DVC complaint filed by P.W.1. But, P.W.1 refer to the cases of HMOP No.115/2011 and MOP

No.81/2012 and MC No.19/2014.

10. The learned counsel for the respondent contended that multiple maintenance under DV Act cannot be granted when petitioners have been receiving maintenance in other cases. And he relied upon the ruling reported in Rachana Kathuria vs Ramesh Kathuria, Crl. M.C. No.30/2010 and

Crl.M.C. No.504/2010, dt.30.08.2010, the Hon'ble High Court of Delhi at New Delhi. The ratio laid down in this case is such that multiple maintenance under DV Act denied when Section 125 of Cr.P.C. was already decided.

11. Coming to the facts of this case, P.W.1 admitted that she had not been respondent for four years prior to filing of this case. The learned counsel for the respondent argued that M.C. No.19/2014 was filed by P.W.1 where as this case was filed in 2015. He further argued that respondent has been paying Rs.10,000/- per month to the petitioners. This fact was not denied by P.W.1.

12. P.W.1 further admitted in cross examination that she never made any complaint against respondent before any authority alleging that she 4 was harassed by respondent. This admission is enough to conclude that respondent did not commit any domestic violence against the petitioners. In case of any domestic violence was committed against the petitioners by

R.W.1, the same would have been mentioned in this complaint or in the evidence of P.W.1.

13. When P.W.1 fails to prove that she was put to domestic violence by R.W.1, the provisions of this Act cannot be applied against the respondent. Unless Domestic Violence is proved with cogent evidence, petitioners are not entitled for any relief under this Act.

14. Nextly, evidence of R.W.1 is trustworthy to believe inasmuch it is established from the evidence of R.W.1 that P.W.1 was not put to domestic violence at any point of time. Evidence of R.W.1 shows that P.W.1 used to talk over phone continuously forgetting her obligation as a house wife and maintains close acquaintance with one Kuna Venkata Ramana. It appears that when R.W.1 questions P.W.1 about such close acquaintance with one Kuna Venkata Ramana, P.W.1 refuses to live with R.W.1. When P.W.1 intentionally refuses to live with R.W.1 and when she receives maintenance in other cases, petitioners are not entitled for monetary relief or protection order or any other relief under this Act. When petitioners failed to prove that they are subjected to Domestic violence, which is sine qua non, to grant protection orders under the provisions of this Act, this case must fail.

Point is answered in thenegative.

15.In the result, the petition is dismissed.

Typed to my dictation, corrected and pronounced by me in open court, this the 27th day of April, 2017.

Sd/- Y. Srinivasa Rao

Spl.Judl.Magistrate of I Class, Prohibition and Excise court, Srikakulam.

5

Appendix of evidence. Witnesses examined.

For Petitioner: For Respondent.

P.W.1: Smt. Palavalasa Hymavathi R.W.1: Sri P. Venkata Lokesh Rajasekhar

Exhibits marked.

For Petitioner :

Nil

For Respondent:

Nil

Sd/- Y. Srinivasa Rao

Spl. Judl. Magistrate of I Class, Prohibition and Excise court, Srikakulam.