Ms. Araveti Manjulatha

1

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE-CUM-JUDL.

MAGISTRATE OF I CLASS::MADANAPALLE.

Present:- Ms. Manjulatha Araveti,

Principal Junior Civil Judge, Madanapalle.

Monday, this the 28th day of August, 2023.

CC.No.1270/2022

Between:- Sub Inspector of Police, Madanapalle Taluk Police Station. . . . Complainant

And

Bathula Seshadri Babu, age 37 years, S/o late Bathula Venkataswamy, Driver, residing at D. No.4-63, Ugrarapupalli, H/o Cheekalabailu, . . . Accused Madanapalle Mandal.

This case is coming before me on 25.08.2023 for final hearing in the presence of Learned Assistant Public Prosecutor for the State and of Sri J.Balakrishna, Advocate for Accused and on hearing both the sides, this matter having stood over for consideration, till this day, this Court delivered the following:

J U D G M E N T

01. The S.I of Police, Madanapalle Taluk P.S has filed charge sheet against the accused in Cr.No.249/2020 for the offence punishable under

Sec.8(b)(1) of A.P. Prohibition Act, 1995.

02. The brief averments of the prosecution case is that:-

On 27.06.2020 at about 7.30 P.M., L.W.5/P.Dileep Kumar, S.I of Police,

Madanapalle Taluk P.S., conducting vehicle checking along with his staff at

Cheekalabailu Check post, Andhra Karnataka border, H/o Cheekalabailu

Village, Madanapalle Mandal at 5.00 PM, the accused noted in the margin had carried non duty paid liquor i.e., 2 bottles of Mansion House Brandy 375 ml and 10 Old Tavaren Whiskey 180 ml tetra packets, all worth

Rs.1781.46/- illegally in his motorcycle Hero Honda bearing regd. No.AP 03-R-3702, with an intention to sell the same to the public plastic higher prices for his illegal profits and contravened to the provisions of A.P.

Prohibition and Excise Act. LW-5arrested the accused and seized NDPL, motorcycle Hero Honda under the cover of police proceedings and LW-5 2 separated a sample of each brand for sending the same to the expert.

LW5 arrested the accused and seized case property to Madanapalle Taluk

Police Station at 8.30 PM registered the police proceedings as a case in

Madanapalle Taluk PS.Cr.No. 249/2020 U/Sec.8(b)(1) A.P.Prohibition Act- 1995.

03.Cognizance of the offence punishable under Sec.8(b)(1) of A.P.

Prohibition Act, 1995 was taken against the Accused and issued Summons.

04. On appearance of the Accused before this Court, copies of documents were furnished to her as contemplated under Sec.207 of

Cr.P.C.

05.Accused was examined under section 239 of Cr.P.C and charge for the offence under U/Sec.8(b)(1) A.P. Prohibition Act-1995 has been framed, read over and explained to the accused in Telugu, for which he denied the charge, pleaded not guilty and claimed to be tried.

06.During the course of trial, the Prosecution has examined P.W.1 and got marked Exs.P.1 to P.4 and M.O.1 and M.O.2.

07.After closure of prosecution evidence, accused was examined under

Sec.313 Cr.P.C by explaining the incriminating material placed against the accused, for which he denied the same and did not choose to adduce any defence evidence on his behalf.

08.Heard the arguments of learned APP and learned counsel for the accused.

09.Now the Point for determination is :-

Whether the prosecution is able to prove the guilt of the

accused for the offence punishable U/Sec.8(b)(1)

A.P.Prohibition Act-1995, beyond all reasonable doubt?

Point:

10.The case of the prosecution is that on 27.06.2020 at 7.30 A.M., the accused found in possession two bottles of Mansion House Brandy 375 3 ml and 10 Old Tavaren Whiskey 180 ml tetra packets and made arrest of the accused.

11.The learned Assistant Public Prosecutor argued that the evidence of

P.Ws.1 and 2 coupled with Exs.P.1 to P.4 and M.O.1 and M.O.2 goes to show that the accused has committed the offence and the prosecution proved the case beyond all reasonable doubt against the accused.

12.The defence counsel argued that no mediators were secured at the time of detecting the offence; the entire case is depending upon the special report which is infirmities. Hence, prays to acquit the accused on the ground of benefit of doubt.

13.The evidence of P.W.1 and 2 is nothing but replica of contents of charge sheet and who deposed as per the record. P.W.2 during his further chief-examination stated as to the procedural aspect as to registering the case, sending the sample to the Chemical Examiner for analysis and made request to confiscate the remaining liquor bottles and filing of charge sheet after completion of the investigation.

14.During the course of cross-examination P.W.1 and 2 both were admitted that due to covid-19 every one should get passport to go other

States from A.P to Karnataka, the excise police personal also conducting duty at the place of offence and further admitted that they did not seize the vehicle from the accused. Both were denied that they never visited the scene of offence and also denied the accused is no way concerned to this case and no contraband was seized from his possession, being the official witness they are supporting the case of prosecution and that they are deposing false.

15.As per the case record, there are no independent witnesses for the case of the prosecution, P.W.1 and 2 both are the Police Official and therefore the evidence has to be scrutinized carefully and cautiously.

P.W.1 and 2 are police personnel. The evidence of P.W.1 and 2 could be 4 considered for the procedural aspect to complete the investigation only and no incriminating material was levelled in his evidence against the accused. Undoubtedly P.W.2 who is police officer bestowed with the duty and responsibility of maintaining law and order and he cannot be expected to falsely implicate any person for statistical purpose. However, at the same time it cannot be ignored that the testimony of an investigating officer should not be considered as a gospel truth in the absence of corroboration in light of independent evidence.

16.In the present case, the entire case of the prosecution is based on the alleged seizure of liquor bottles, therefore, it is to be noticed whether the investigating agency has followed the procedure relating to search and seizure. Section 100 Cr.P.C. deals with the search and seizure.

According to section 100 (4) of Cr.P.C., at the time of search and seizure, it is the obligation on the part of officer, who conducted search and seizure to secure the local inhabitants to prove the seizure and when the officials failed to secure the independent witnesses, the search and seizure is not free from doubtful and accused are entitled for benefit of doubt.

17.Further our Hon'ble High Court in a case of Y. Srinivasulu Reddy

Vs. State of A.P. 2002 (1) L.S. 242 held that :

“if no one was willing to act as punch witness, a written order should be passed for the purpose of conducting search and seizure and in the said case the entire search conducted by the prosecution is vitiated”

18. In Mudavath Mothia Vs. State of A.P. 2002 (1) ALT (Crl.) 437 AP wherein it is held that :

“the panchanama is hit by sec.25 and 27 of Indian Evidence Act and sec.161 of Cr.P.C and when the independent witnesses are not examined by the prosecution, the prosecution theory of seizing the sachets from the custody of the accused has to be looked with suspicion.”

19.Coming to the present case, admittedly P.W.2 did not issue any written notice to P.W.1 to secure the mediators from the village. Besides 5 that P.W.2 did not issue any written summons to VRO or Village Sarpanch who were available in the village and also to the villagers who were passing through the scene of offence. Thus it is clear that PW2 and his party have not secured the respectable mediators like VRO and Village

Sarpanch to connect the accused with this case. P.W.2 ought to have followed the procedure as contemplated under sec.100 (4) of Cr.P.C, and also law laid down by the Hon'ble High Court in Sri Y.Srinivasulu Reddy case and also Mudavat Motia case, which he did not do so. All these lacunas in the investigation of P.W.2 show that he has not done proper investigation in seizure of the alleged contraband from the possession of accused.

20.Since P.W.2 did not follow the dictum laid down by the Hon'ble

High Court in Srinivasulu Reddy case and in Mudavath Mothia case and also the case of the prosecution is not believable and further PW1 and

P.W.2 are highly interested witness being police officials, as such their evidence cannot be relied upon without any corroboration from the independent witnesses.

21.In the said circumstances, the entire search and seizure becomes doubtful. It is settled law that when there is a doubt in the prosecution case, the benefit of doubt should be given to the accused. If it is so, the prosecution has no case at all. Hence, this court is of the opinion that the prosecution has failed to prove that the accused was found in possession of liquor pockets.

22.It is settled law that the person who is a complainant in a case should not be allowed as an Investigating Officer in such case the investigation certainly prejudice the accused and impartial investigation is doubtful. Further he submitted that, in the instant case, as per prosecution, P.W.2 detected the offence, registered the case and conducted entire investigation and therefore, the evidence of P.W.2 is doubtful.

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23.This Court comes across a decision in a case between Gurazala

Ramesh and others Vs. State of Andhra Pradesh, reported in 2003 (2)

ALD (Crl.) 13(A.P.), wherein it was held that “........ same police officer who detected and found the offence gave FIR and also investigated. Hence, it is manifest illegality is committed by the same officer who detected the offence or crime also gave FIR and investigating in to the crime and filed charge sheet. Hence, impugned convictions and sentences as conformed by the Applet Court or unsustainable at law, Hence have to be set a side”. So, also in a case between Bhagavan Singh Vs. Stage of Rajasthan reported in AIR 1976 SC 985, wherein it was held in Para No. 5 that: ''it is postulated that infirmity arisen out of the investigation by the Head Constable who lodged the FIR as complainant, will be an infirmity which is bound to reflect on the credibility of the case of the prosecution. ''

24.The above authority makes clear that the complainant cannot be acted as Investigating Officer and it is not safe to rely upon the investigation done by the complainant as there is every possibility of prejudice to the accused and impartial investigation is doubtful.

25.In the case on hand, P.W.2 who is complainant himself investigated the case. It clears from the record that entire proceedings in this case were taken up by P.W.2 alone. Here P.W.2, detected the offence, seized the liquor pockets, drawn the samples, prepared the special report, arrested the accused, registered the special report and sent the samples to analysis. In view of circumstances, the above authorities are very much relevant to the present case in hand. In view of above authorities, impartial investigation by the complainant is doubtful.

26.Taking into consideration of the overall circumstances of the case, the prosecution has miserably failed to bring home the guilty of accused with cogent and convincing evidence and therefore, the accused is 7 entitled for acquittal for the offence charged against them. In the light of above discussion, I answered this point against the prosecution.

27.In the result, accused is found not guilty for the offence punishable

Sec.8(b) (1) of A.P. Prohibition Act, 1995 and thereby, he is acquitted under Sec.248(1) of Cr.P.C for the said offence. The bail bonds of the accused and his sureties shall remain in force for a period of six months from the date of this judgment. M.O.1 and M.O.2 shall be destroyed after expiry of appeal time.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in the Open Court, this the 28th day of August, 2023.

Principal Junior Civil Judge,

Madanapalle.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: P.W.1T.Raja

P.W.2P.Dileep Kumar

For Defence: None

DOCUMENTS MARKED

For Prosecution: Ex.P.1Is the Police proceedings

Ex.P.2Is the FIR

Ex.P.3Is the Chemical analysis report vide CE No.714/2020 dt.02.07.2020

Ex.P.4Is the confiscation order for the seized contraband vide

RC.No.13/confis & DCRB/SEB-ANM/2020 dt.30.05.2022

For Defence: Nil

Material Objects:

M.O.1Sample bottle

M.O.2Sample bottle

PRINCIPAL JUNIOR CIVIL JUDGE,

Madanapalle.

FORM-A

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE-CUM-

JUDL. MAGISTRATE OF I CLASS::MADANAPALLE.

Present:- Ms. Manjulatha Araveti,

Principal Junior Civil Judge, Madanapalle.

Monday, this the 28th day of August, 2023.

CC.No.1270/2022

Cr.No.249 of 2020 of Taluk police station, Madanapalle.

ComplainantThe Sub Inspector of Police, Taluk police station, Madanapalle

Represented byThe Assistant Public Prosecutor.

Accused: Bathula Seshadri Babu, age 37 years, S/o late Bathula Venkataswamy, Driver, residing at D. No.4-63, Ugrarapupalli, H/o Cheekalabailu, Madanapalle Mandal.

Represented bySri J.R.Balakrishna, Advocate for the accused.

FORM-B

Date of Offence27.06.2020

Date of FIR27.06.2020

Date of Charge sheet03.07.2020

Date of Framing of Charges07.08.2023

Date of Commencement of evidence21.08.2023

Date of which judgment is reserved25.08.2023

Date of the Judgment28.08.2023

Date of the Sentencing Order, if any--

Accused Details

Rank Name ofDate Date ofOffencesWhetherSentencePeriod of of theAccusedof Release oncharged withAcquittedimposedDetention AccusedArrestBailofUndergone convictedduring Trial for purpose of Sec.428 Cr.P.C. 01Bathula27.06.2020 27.06.2020 Sec.8(b)(1) ofAcquitted- NIL -- NIL - SeshadriA.P. BabuProhibition Act, 1995

FORM-C

LIST OF PROSECUTIOIN/DEFENCE/COURT WITNESSES

A. Prosecution:

RankNAMENATURE OF EVIDENCE (Eye witness, Police witness,Expert witness, Medical witness, Panch witness, other witness)

PW-1T.RajaPolice witness

PW-2P.Dileep KumarPolice witness

B. Defence Witnesses, if any:

RankNAMENATURE OF EVIDENCE (Eye witness, Police witness, Medical witness, Panch witness, other witness) --- Nil ---

C. Court witnesses, if any:

RankNAMENATURE OF EVIDENCE (Eye witness, Police witness, Medical witness, Panch witness, other witness) --- Nil ---

Principal Junior Civil Judge,

Madanapalle.

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IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE ::

MADANAPALLE

PRESENT: M S . M ANJULATHA ARAVETI ,

Principal Junior Civil Judge,

Madanapalle.

Monday, this the 28th day of August, 2023.

OS.No. 471 of 2019

BETWEEN:

Boyapati Rangaswamy @ B.Rangaswamy Naidu, S/o late B.Gopal Naidu, age 60 years, . . .Plaintiff residing at D. No.1/731, Gandhipuram, Ponnutipalem village, Madanapalle Mandal.

AND

Mallemputi Venkata Prasad Naidu, S/o M.Venkatramana, age 47 years, residing at T.N.Vari Bunglow, Ponnutipalem Road, Ponnutipalem Village, Madanapalle Post and . . .Defendant Mandal.

This suit is coming up for final hearing before me on 21.08.2023 in the presence of Sri S.Rajendra, Advocate for the plaintiff and of Sri

S.Prabhakar Reddy, Advocate for the defendant and the matter having stood over for consideration till this day, the court delivered the following:

J U D G M E N T

01.This is a suit filed by the plaintiff against the defendant for recovery of an amount of Rs.12,58,400/- being the principal and interest under the two promissory notes for Rs.4,00,000/- on 19.04.2017 and Rs.4,20,000/- on 21.04.2017 together with interest @24% p.a. and for subsequent interest and for costs of the suit.

02.The brief averments of the plaint are as follows:-

On 19.04.2017 the defendant borrowed an amount of

Rs.4,00,000/- from the plaintiff for his legal necessities and executed a demand promissory note in favour of the plaintiff on the same day by agreeing to repay the debt amount with interest @24% p.a. The 2 plaintiff further submitted that the defendant again on 21.04.2017 borrowed an amount of Rs.4,20,000/- from the plaintiff for his legal necessities and executed a demand promissory note in favour of the plaintiff on the same day by agreeing to repay the debt amount with interest @24% p.a.

The plaintiff further submitted that inspite of several consistent demands made by the plaintiff against the defendant but the defendant used to postpone the repayment under one or other lame pretext on that the plaintiff got issued legal notice dt.08.12.2018 and the same was acknowledged by the defendant and requested the plaintiff to grant some more time to discharge the entire debt thereafter he failed to pay the loan amount on that the plaintiff caused the 2nd legal notice to the defendant and the same was acknowledged by the defendant but not send any reply but the defendant filed a caveat petition in CP.No.112/2019 on the file of Junior Civil Judge of

Madanapalle contending that the plaintiff may seek for attachment of the property by specifying the schedule. The plaintiff further submitted in para No.7 and 8 of the plaint with regard to the caveat schedule property and its sale transaction. The plaintiff further submitted that he got issued a regd. Legal notice to the defendant as well as to his alleged purchaser namely C.Sathyavathi to get cancel of the said sale deed dt.13.06.2019 executed by the defendant in favour of the alleged vendee on that the defendant sent a belated reply notice by taking plea that the money transactions arose under chit transaction and also contended that the suit promissory notes are supported by consideration.

03.The defendant filed written statementdenying the averments made in para No.1 to 5 and admitted tht he did not sent any reply notice to the plaintiff for the legal notice issued by him dt.08.12.2018 and further admitted that he executed sale deed dt.13.06.2019 and denied that the suit promissory notes brought into existence in respect of a chit transaction and they were not supported by consideration and the plaintiff failed to return those promissory notes to the defendant inspite of repeated demands and the plaintiff filed the suit for wrongful gain at last prayed to dismiss the suit.

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04.Basing on the pleadings, the following issues have been framed for trial.

1. Whether the suit promissory notes are not supported

by consideration as alleged by the defendant in his

written statement?

2. Whether the suit promissory notes were brought in to

existence in respect of a chit transaction as alleged by

the defendant in his written statement?

3. Whether the plaintiff is entitled to recover the suit amount?

4. If so what relief?

05.Coming to the evidence the plaintiff examined PWs 1 to 3 and

Exs. A1 to A10 got marked. Whereas coming to the defendant side

DW1 was examined and no documents were not marked on his behalf.

06.Heard both sides. Perused the entire material on record.

07. Issue No.1 and 2:-

It is the specific contention of the plaintiff that the defendant had borrowed the amounts of Rs.4,00,000/- and Rs.4,20,000/- on 19.04.2017 and 21.04.2017 respectively and executed the suit promissory notes under Ex.A1 and A2 and in spite of several demands made by him, the defendant did not repay the same. On the other hand, it is the contention of the defendant in the written statement that the suit promissory notes are not supported by consideration and also pleaded the suit promissory notes were executed by him in the chit transaction and they are not supported by the consideration

08.To substantiate the contention of the plaintiff, he himself examined as P.W.1, he filed his chief examination affidavit in lieu of his chief examination and exhibited Exs.A.1 to A10 documents in support of his ocular evidence. During the course of cross-examination the learned counsel for the defendant elicited the facts that the defendant made signature in English and Ex.A1 and A2 are transacted at the 4 premises of the Sub-Registrar Office, Madanapalle and the scribe of

Ex.A1 and A2 is one Venkata Reddy and attestors are one

Venkataramana and another Mallikarjuna and denied the suggestions that he has no financial capacity to lend money of Rs.8,20,000/- to the defendant and Ex.A1 and A2 are created out of chit transaction and further denied A1 and A2 are not true valid and not bind upon the defendant.

09.PW2 who is the attestor of Ex.A1 and A2 PW3 who is the scribe were also deposed in the same lines as deposed by PW1 and corroborated is case though he was cross examined no facts are elicited in contra with the version of the plaintiff and denied the formal decisions.

10.Coming to the defendant side evidence he himself examined as

DW1 he filed his chief examination affidavit in accordance with the written statement averments corroboration with during the course of cross examination he admitted the signatures in Ex.A1 and A2 but he volunterly stated that the plaintiff obtained his signatures in blank promissory notes as a security purpose at the time of knocking down the chit run by the plaintiff. DW1 further deposed he got issued reply notice to the legal notices under exhibits A3, A5 and Ex.A8 and also deposed that he has no documentary proof to show that the plaintiff is running chit business. The learned counsel for the plaintiff also made suggestion with regard to the property sold by the defendant to his vendee which is the subject matter of the caveat petition filed by the defendant which is not relevant tot he present suit and denied the formal suggestions.

11.The evidence of P.Ws.1 to 3 clearly speaks about the execution of suit promissory notes by defendant and passing of cash consideration under Exs.A.1 and A2 to the defendant. By examining P.Ws.1 to 3 coupled with Exs.A1 and A2, in the considerable view of this court plaintiff proved the execution of suit promissory notes as the evidence of PWs 1 to 3 are consistent to each other and they never shake and deviated from the case of plaintiff. When once the plaintiff proves the execution of Ex.A1 and A2 i.e., the promissory notes which are the negotiable instruments the Court has to invoke presumption under 5

Sec.118 (a) of Negotiable Instruments Act, 1881 and accordingly, the presumption is drawn in favour of the plaintiff that the suit promissory notes are supported by consideration. The aforesaid Section contemplates that promissory notes were executed for consideration unless the contrary is proved.

12.To disprove the case of the plaintiff the defendant himself examined as DW1 and taken plea that the plaintiff running a chit business and he made signatures in the blank promissory notes for security purpose when he knocked down as highest bidder as such

Ex.A1 and A2 are not supported by consideration, to prove that the plaintiff is running a chit business and in accordance with chit transaction he made signatures in the blank promissory notes the defendant not adduced any single piece of evidence and not even deposed the dates when he knocked down the chit amount and no supporting documents evidence adduced by the defendant in supporting of his pleas. This court further observed that as the defendant further admitted that he got issued reply notice to Ex.A3, A5 and A8 but no office copy of reply notice filed in support of his case.

Mere pleadings not amounts to evidence. So, irrespective of the defendant plea the court has to form a favourable presumptions in favour of the holder of the instrument as provided under Sec.118(a) of

N.I Act, that every negotiable instrument is presumed as it was executed as on the date mentioned thereon and supported by consideration, to rebut such presumption the defendant did not adduce any documentary evidence. The defendant had taken the plea that the suit promissory note is devoid of consideration. When the court inferred the presumption in favour of the holder of the instrument, then the burden shift to the defendant to rebut the presumption under Sec.118

(a) of Negotiable Instruments Act, who rebut such presumptions.

13.The burden of proving of Exs.A1 and A2 are not supported by the consideration lies on the defendant, but he has failed to discharge his burden to prove his contention and against the case of the plaintiff.

Hence, a legal inference can be drawn in favour of the plaintiff that the suit promissory notes are supported by consideration. The defendant 6 failed to disprove the case of the plaintiff by adducing probable and cogent evidence to rebut the presumption as to passing of consideration. Hence, the pleadings of the defendant in the written statement and evidence remained as contentions, but not established by any cogent and convincing evidence.

14.In the light of aforesaid discussion, the defendant herein failed to substantiate his contention by producing positive and convincing evidence. Whereas the evidence of P.Ws.1 to 3 is substantiating the transaction under Ex.A1 and A2 and nothing is elicited to disbelieve or discredit their evidence. Accordingly, issues Nos.1 to 3 are answered in favour of plaintiff and against the defendant.

Issue No.3:

15.In the result, the suit is decreed with costs in favour of the plaintiff and against the defendant for an amount of Rs.12,58,400/- with interest @ 12% p.a., from the date of suit i.e., 17.07.2019 till the date of decree and thereafter @ 6% p.a., till the date of realization on the principal amount of Rs.8,20,000/-.

Typed to my dictation by Stenographer, corrected and

pronounced by me in the open court on this the 28th day of August,

2023.

Principal Junior Civil Judge,

Madanapalle.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For the Plaintiff:

P.W.1:B.Rangaswamy @ B.Rangaswamy Naidu

P.W.2:K.Mallikarjuna Naidu

P.W.3:L.Venkata Reddy

For the Defendant :

D.W.1:M.Venkata Prasad Naidu 7

EXHIBITS MARKED

For the Plaintiff:

Ex.A.1Suit pronote dt.19.04.2017 executed by the defendant in his favour for consideration of RS.4,00,000/- undertaking to repay with interest @24% p.a.

Ex.A.2Suit pronote dt.21.04.2017 executed by the defendant in his favour for consideration of RS.4,20,000/- undertaking to repay with interest @24% p.a.

Ex.A.3Office copy of legal notice dt.08.12.2018 issued by the petitioner to the defendant demanding payment under Ex.A1

Ex.A.4Postal acknowledgment

Ex.A.5Office copy of legal regd. Legal notice dt.03.06.2019 issued by the petitioner to the defendant

Ex.A.6Postal acknowledgment signed by the defendant

Ex.A.7Served copy of caveat petition sent by the defendant vide CP.No.112/2019 on the file of the Junior Civil Judge Court, Madanapalle.

Ex.A.8Office copy of regd. Legal notice dt.03.07.2019 issued by the petitioner to the defendant

Ex.A.9Postal acknowledgment

Ex.A.10 Served copy of reply dt.08.07.2019 issued by the defendant to the petitioner.

For the Defendant:

Nil

Principal Junior Civil Judge,

Madanapalle.

1

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE : AT

MADANAPALLE

PRESENT: M S . M ANJULATHA ARAVETI ,

Principal Junior Civil Judge,

Madanapalle.

Monday, this the 28th day of August, 2023

EP.No.10/2021

e-No.11/2021

in

OS.No.209/2016

Between:-

P.Prasad, S/o Ramaiah, Hindu, age 52 years, Ex-Serviceman, residing at

D.No.256-B, Society Colony, Madanapalle Town and Mandal.

…Decree Holder.

And

K.Siva Sankar S/o Chinnappa, Hindu, age 41 years, working as Branch Post

Master, Kotha Manchuru Village and Post, Vayalpad Mandal.

…Judgment Debtor

This E.P. came before me for final hearing on 22.08.2023 this day in the presence of Smt. C.Ammaji, Advocate for the learned counsel for the decree

Holder and Sri G.Bayya Reddy, Advocate for judgment debtor and having heard and considered the material on record, this Court made the following :

:: ORDER ::

01. This is the execution application U/o 21, 22 Rule 48 CPC by the DHR against the JDR seeking to attach the salary amount of the JDr available with the garnishee towards realization of the decree amount and costs incurred in this execution petition.

02. The brief contentions of the petitioner are that the petitioner is the

DHr, this application is filed for recovery of decree amount due by JDr. The JDr is working as Branch Post Master, Kotha Manchuru Village and Post, Vayalpad

Mandal and getting monthly salary of Rs.30,000/-. DHR previously filed

EP.No.55/2017 is filed before this court for salary attachment for JDr and the

same is dismissed on 27.04.2018. the DHr filed this petition for attachment of 2 salary of the JDR a sum of Rs.5000/- per month by directing the garnishee to deduct the same, in the interest of justice.

03.The brief averments in the counter of the JDR are that the JDR denies the allegations of the DHr. The JDr is working in postal department and he is drawing a meager salary per month, he has got aged parents and he is only the person to look after their welfare of his family and they are depending on him and he also spend huge amounts on education of his children and on medical treatment of his aged parents and his son who is suffering with epilepsy. He also borrowed huge amounts from various persons to discharge the debts incurred by him. Except the salary he has no other source of income and the said salary is not sufficient to maintain his family. The allegations made in the affidavit filed in support of the execution petition are not correct.

04. POINT FOR CONSIDERATION:

Whether the DHR is successful in establishing that JDR has

means to discharge the EP amount or not?

05. POINT:

The learned counsel for the DHR contended that JDr is liable to pay the amount due under the decree, JDr has not paid any amount towards the discharge of obligation under the decree inspite of repeated demands, JDr has capacity to discharge the decreetal amount but JDr is not doing so for reasons known to the JDr and to cause troubles to DHr and hence the salary of JDr may be attached subject to Sec.60 CPC.

06.The respondent submitted in his counter by denying the main award as he was indebted to the DHr and also taken plea that has got aged parents and he is only the person to look after their welfare of his family and he is not in a position of financial capacity to satisfy the decretal amount.

07.The attachment of salary of a government servant shall be done as per the procedure contemplated under O.21 R.48 r/w Sec.60 CPC. Sec.60 of CPC 3 provides for compulsory exemption of certain portion of the salary from attachment towards realization of any amount due under decree to the DHr.

Such exemption is intended to not deprive JDr of his source of survival and to provide basic support for survival to the dependents of JDr. Any attachment of salary shall be strictly in accordance with the parameters prescribed under

Sec.60 CPC. The said provision provides that the salary to the extent of first 1,000/- Rupees and 2/3rd of the reminder shall not be liable for attachment in execution of any other than a decree for maintenance. This application is filed for execution of decree for recovery of money due under promissory note but not a decree for maintenance. As such, the 1/3rd portion of the salary after deducting the first Rs.1,000/- and 2/3rd of the reminder shall be attachable and no further exemptions out of such attachable portion of salary are permissible as per Sec.60 CPC.

08. The salary particulars of the respondent received by this court are as follows:

EARNINGS DEDUCTIONS

TR Continuity Allowance16190-00 PLI Premium3596-00

DA5505-00 ED GIS II50-00

OfficeMaintenance500-00 Cooperative credit Soc5299-00 allowanceRe

Arrears1401-00 20794-008945-00

Gross Earnings 20794-00 Deductions 8945-00 Net payable : 11,849-00 (Net payable eleven thousand eight hundred and forty nine only)

Basing the above calculation by this court, this Court is of the view that the attachable amount would be as follows:

The net salary after all deductions = Rs.11,849-00

Balance after deduction of Rs.1,000/- from the net salary = Rs.10,849/- 4 1/3rd balance after deduction of 2/3rd of the reminder from the net salary = Rs.3616/-

Having regard to the circumstances, this court is of the view that the DHr is entitled for recovery of EP amount by way of attachment of Rs.3616-00 (Rupees three thousand six hundred and sixteen only) until the realization of EP amount for a period not exceeding 24 months. As such, the point is answered accordingly.

09.In the result, the EP is allowed. DHr is entitled for recovery of the EP amount due by the JDr to DHR by way of attachment of Rs.2500 (Rupees two thousand five hundred only) per month from the salary of JDR until the realization of the EP amount due by JDR to DHR for a period not exceeding 24 months and issue warrant to the garnishee to deduct the amount as per the order of this court and send the same to this Court on payment of process by

DHr call on

Typed to my dictation by the stenographer correct, pronounced by me in the open court, this the 28th day of August, 2023.

Principal Junior Civil Judge,

Madanapalle.

Appendix of evidence

No. of Witnesses Examined

No oral evidence was adduced on either sides

No. of Exhibits Marked

For petitioner/DHR:

Nil

For respondent/JDR:

Nil

Principal Junior Civil Judge,

Madanapalle.

1

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE:

MADANAPALLE

PRESENT: M S . M ANJULATHA ARAVETI ,

Principal Junior Civil Judge,

Madanapalle.

Tuesday, the 29th day of August, 2023.

OS.No.423/2020

G.Vidya Sagar, S/o G.Krishnappa, age 55 years, Hindu, residing at D.No.2- 309-M, S.V.Colony, Madanapalle.

… PLAINTIFF

Vs.

C.Konda Reddy, S/o C.Joji Reddy, age 46 years, Business, residing at Door

No.II-271-A2, Society Colony, Madanapalle Town.

... DEFENDANT

This suit is coming before me this day for hearing in the presence of

Sri V.Jayanarayana Reddy, Advocate for Plaintiff and Sri V.Sathya Babu,

Advocate for defendant and upon hearing the representation of the Advocate for plaintiff on hearing this court delivered the following:

ORDER

1.This is the suit by the plaintiff against the defendant for recovery of a sum of Rs.13,28,000/- with subsequent interest @ 24% p.a., from the date of filing of suit till the date of realization and for costs of the suit.

2.The suit is at the stage of cross of PW1

3.The suit is coming for cross of PW1 since long time though this court imposed conditions but the learned council for plaintiff requested further time, as this court gave ample opportunity to the Plaintiff to proceed with the case, but PW1 not turned up to proceed with the matter. Hence no further time would be given accordingly the suit is dismissed for default.

Pronounced by me in the open court this the 29th day of August, 2023.

Principal Junior Civil Judge,

Madanapalle.

APPENDIX OF EVIDENCE

Nil

Principal Junior Civil Judge,

Madanapalle.

1

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE : AT

MADANAPALLE

PRESENT: M S . M ANJULATHA ARAVETI ,

Principal Junior Civil Judge,

Madanapalle.

Thursday, this the 31st day of August, 2023.

EP.NO.22/2020

IN

OS.NO.499/2016

Between:- B.Chan Basha, S/o Hussain Saheb, aged about 42 years, Muslim, residing at Brahmana Street, Peddamandyam town and mandal, Chittoor District. …Decree Holder

And

K.Kareemula S/o Reddi Saheb, aged about 45 years, Muslim, Business,

Appagari Street, Kurabalakota Town and Mandal, Chittoor District.

…Judgment Debtor

This E.P. coming before me for hearing in the presence of

Sri D.Krishna Reddy, Advocate for the learned counsel for Decree Holder

Sri J.Sandeep, Advocate for Judgment Debtor and this Court made the following:

DOCKET ORDER

Dt.31.08.2023

This is an execution petition filed by the decree holder against the

Judgment debtor U/o.21, Rule 37 and 38 of CPC to direct the JDr to pay the EP amount to the DHr failing which the JDR be committed to civil prison till the discharge of EP amount in the interest of justice.

DHR called absent. No representation as the matter is coming for cross of

PW1 on condition since long time and there is no progress in the matter, accordingly the matter underwent several adjournments and this court gave ample opportunity to the DHR but the DHR not turned up it appears that the

DHR has no interest to proceed with the EP. Hence the EP is dismissed for default. No costs.

Pronounced by me in Open Court, this the 31st day of August, 2023.

Principal Junior Civil Judge,

Madanapalle.