B.Gayatri

1

IN THE COURT OF THE XII ADDITIONAL DISTRICT JUDGE PITHAPURAM

PRESENT: Smt. B. Gayatri,

IV Additional District Judge, Kakinada

FAC. XII Additional District Judge, Pithapuram

Wednesday, the 2nd day of January, 2019

GUARDIAN O.P. Nos. 12 of 2014 and 13 of 2014

(GOP 12/2014 - In the matter of appointment of guardian of Marneedi Supreethi, Grandchild of petitioner and daughter of respondent) (GOP 13/2014 - In the matter of appointment of guardian of Marneedi Aravind, S/o. Marneedi Srinivasu)

G.O.P. 12/2014:

Between :

Keerthi Venkateswara Rao .. Petitioner

A n d

Marneedi Srinivasu .. Respondent

G.O.P. 13/2014:

Between :

Marneedi Srinivasu .. Petitioner

A n d

Keerthi Venkateswara Rao .. Respondent

G.O.P. 12/2014 coming on 19-12-2018 before me in the presence of Sri K.V.V. Chalapathi, Advocate for the petitioner and of Sri M. Dharma

Reddy, Advocate for the respondent and G.O.P. 13/2014 coming on 19-12- 2018 before me in the presence of Sri M. Dharma Reddy, Advocate for the petitioner and of Sri K.V.V. Chalapathi, Advocate for the respondent and on hearing both sides and the matter having stood over for consideration till this day, this Court made the following:

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C O M M O N O R D E R

G.O.P.12/2014

This petition is filed by the petitioner under Sections 7 and 9 of

Guardians and Wards Act to appoint the petitioner as guardian of the minor

Mameedi Supreethi, aged 4 years and for custody of the said minor child from the respondent who is the father of the minor child, for costs and such other relief's.

2.The brief averments of the petition are that the petitioner is the maternal grandfather of the minor girl Mameedi Supreethi, aged 4 years who born on 9.5.2005. It is stated that the mother of the minor girl by name

Sujatha was given in marriage to the respondent and she was killed on 2.8.2009 by her husband i.e., the respondent, her mother-in-law Suryavathi and sister- in-law Dasupatruni Manga and her husband Lakshmana Rao and a case in Crime No.151/2009 which has been numbered as P.R.C.19/2009 is pending before J.F.C.M. Court, Pithapuram.

It is stated that during the lifetime of said Sujatha, respondent harassed her for additional dowry and all his family members subjected her to cruelty. They never looked after her and her two children. It is stated that the petitioner gave Rs.1,OO,OOO/-, Rs.20,OOO/-, Rs.30,000/-, Rs.5O,OOO/- and Rs.5O,OOO/- on different dates to the respondent and his family members as per their demands, with a hope that his daughter and grand children will be look after well by them. It is stated that due to the ill- treatment, Sujatha used to reside at her parents' house at Satyavaram 3 village and as such, grand children Suprithi and Aravind are very much attached to the petitioner and his family members.

It is stated that the petitioner has landed properties at

Satyavaram village and he is doing real estate business and out of which, he is getting sufficient income to look after the welfare of the minor granddaughter Supriti.

It is stated that the respondent is not looking after the minor girl

Supriti properly. It is stated that when the petitioner requested the respondent to handover Suprithi to him, the respondent put several conditions and insisted the petitioner to withdraw the criminal case, then he will handover Suprithi to him. It is stated that if Suprithi is allowed to be with the respondent, her educational career and mental development will badly effect and there is a life threat also to her. Hence, the petition.

3. The respondent filed counter denying the allegations made in the petition stating that the petitioner is residing at Satyavaram which is a small village situated in Payakaraopeta Mandal and it is an undeveloped area in

Education and there are no proper educational institutions in a radius of 50 km., where the minor child can be sufficiently educated. Hence, prays this court to dismiss the petition with costs.

G.O.P.13/2014

4. This petition is filed by the petitionerunder Sections 7 to 10 of

Guardians and Wards Act, 1890 to appoint the petitioner as guardian of the minorMameedi Aravind, aged 5 years and for custody of the said minor child from the respondent who is the maternal grandfather of the minor child, for costs and such other relief's.

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5.The brief averments of the petition are that the petitioner is the natural father of minor son Marneedi Aravind who is aged about 5 years and who is in the custody of respondent at Satyavaram, Payakaraopeta

Mandal. It is stated that the petitioner's marriage was performed with one

Marneedi Sujatha who is the daughter of respondent in the month of May, 2002 with the consent of parents of both sides. Both of them lived together and were blessed with two sons and one daughter. Out of them, 1st son expired due to post birth complications.

It is stated that in 2009, the wife of the petitioner died and the respondent and his family entertained a doubt that the petitioner and his family members are responsible for her death and lodged a false complaint which is still pending. It is stated that since the date of death of the petitioner's wife, both the children were living with the petitioner.

It is stated that during the last week of March, 2011, the respondent along with his men came to Pithapuram and took away the minor boy Aravind with them, while the minor was returning from the school along with his sister. It is stated that the petitioner on coming to know about the same through his daughter, immediately went to the house of respondent with elders, but the respondent did not even allow the petitioner to see his son and he lodged a complaint with Pithapuram Town Police

Station.

It is stated that the respondent is residing at Satyavaram which is a small village situated in Payakaraopeta Mandal and it is an undeveloped area in Education and there are no proper educational institution in a radius of 50 km., where a male child can be sufficiently educated.

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It is stated that the petitioner is working as Assistant Professor and qualified in M.Sc., M.Phil., B.Ed., and as such he can provide better education personally. Hence, the petition.

6. The respondent filed counter denying the allegations made in the petition stating that the petitioner is not looking after the minor girl Supriti properly. It is stated that if the minor child is allowed to be with the petitioner, his educational career and mental development will badly effect.

Hence, prays to dismiss the petition with costs.

7. I.A. 1383/2014 is filed and allowed. G.O.P. 12/2014 is clubbed with G.O.P. 13/2014 and the evidence is recorded in G.O.P. 13/2014.

8. On behalf of the petitioner, the petitioner in G.O.P.13/2014 was examined as P.W.1 and got marked Exs. A.1 to A.3. On behalf of the respondent, R.Ws.1 and 2 were examined and got marked Exs. B.1 to B.37 on his behalf.

9. Heard arguments on both sides. Perused the material available on record.

10.Now the points for consideration are:

1) Whether there are any grounds to appoint the petitioner in G.O.P.13/2014 as guardian for the custody of the minor boy Aravind?

2) Whether there are any grounds to appoint the petitioner in G.O.P.12/2014 as guardian for the custody of the minor girl Supreethi?

3) To what relief?

11.Point Nos.1 and 2 :

The petitioner in G.O.P. 13/2014 was examined himself as P.W.1 and he reiterated the contents of the petition in his chief evidence affidavit 6 with regard to his marriage with the deceased who is the daughter of the respondent.

12.He stated that the respondent/grandfather of the minor children is residing at Satyavaram which is a small village, where the minor children cannot be sufficiently educated.

13. The petitioner in G.O.P. 12/2014 was examined himself as

R.W.1 and he reiterated the contents of the petition in his chief evidence affidavit stating that the mother of the minor children died only due to the harassment made by the petitioner and his family members and since the date of death of his daughter, the minor boy was with them and the minor girl is with P.W.1/father.

14.It is his version that P.W.1 is not looking after the minor girl properly. He further stated that in view of the criminal attitude of the petitioner a criminal case was registered against the petitioner and his family members for the allegation that their deceased daughter died due to the harassment made by them. It is stated that the petitioner/father of the minors is not entitled to take the custody of the minor children.

15.During cross examination P.W.1/father of the minors admitted that during pendency of the Sessions Case filed against himself and his family members due to intervention of the elders, a compromise was entered in between themselves and his father-in-law and accordingly, they were acquitted. He admitted that as per compromise they agreed to give the house property bearing D.No. 14-1-100 at Pithapuram to his son Aravind and open site of 250 sq. yards situated at Turangi to be given to his daughter and son and it is also agreed that the land to an extent of Ac.1.50 cents stood in the name of his deceased wife is to be given to his daughter and 7 son. He admitted that it was also agreed as per the compromise the gold given to his deceased wife by her parents is to be given to his father-in-law to safeguard the same till the marriage of his minor daughter and the same to be given to his daughter at the time of her marriage. He admitted that as on the date of the said compromise, the Sessions Case, Guardian O.P. filed by himself and Guardian O.P. filed by his father-in-law are pending. He

deposed that for the welfare of the children, they have entered into

the above said compromise and also agreed to withdraw Sessions

Case and Guardian O.Ps. He also admitted that he executed a gift deed in favour of his son and daughter in respect of the house situated at

Pithapuram by mentioning his father-in-law as guardian.

16. He deposed that his minor son is studying 4th standard at Sri

Prakash International School, Tuni. He deposed that about one year back when he took his daughter to the house of his in-laws at Tuni, he observed his son. He deposed that he is not paying school fees of his son and even not spending money for his necessities. He admitted that since 2011 his father- in-law only looking after his son.

17.From the above admissions made by P.W.1, it is clear that subsequent to the death of his deceased wife, his father-in-law /R.W.1 filed

Criminal Case against himself and his family members alleging that due to their harassment only his daughter died. During the pendency of the said criminal case, for the welfare of the children, they have entered into compromise and agreed to withdraw Sessions Case and Guardian O.Ps.

which are pending. Further he also admitted that he did not pay not even a single pie to the school fee or any expenditure of his minor son and had seen 8 his son only for one time in a year. Admittedly, the minor son is with R.W.1 only since 2011 and he is studying in Sri Prakash International School, Tuni.

18.It is also an admitted fact that the minor girl is with P.W.1 only since the date of death of her mother and she is studying in Sri Saraswathi

Vidya Niketan.

19.As per Section 6 of Hindu Minority and Guardianship Act, 1956 father becomes the natural guardian, but at the same time the welfare of the child should be of paramount importance while giving the custody of the child.

20. As per Section 13 of the Act, the father, natural guardian is entitled to have the custody of the child if he has not done any act to dis-entitle himself for custody of minor child.

21.In view of Section 17 of the Act, also the welfare of the minor is the dominant consideration in appointing the guardian. Therefore, the character, capacity, the nearness to the minor of the proposed guardian are to be given preference and the Court is not bound to appoint the person having preferential claim for guardianship under the personal Law.

22.It was observed in a decision reported in AIR 1993

Allahabad 230 para 14 in between Ravi Kanth Keshri and another Vs.

Krishna Kumar Gupta and others, that - “Child living with in-laws since death of her mother – Petition by child's father for custody – Welfare of child is a paramount consideration – Child is being looked after properly in maternal home – Family having sufficient means and medical as well as educational facilities available there –

Petitioner/father is not entitled to custody of child.” 9

In view of the above decision, in the present case also, as the minor boy is with the petitioners/maternal grandparents only since his childhood and since the date of the death of his mother and criminal case was also filed against the respondent for the allegations under Section 498-

A, 306 I.P.C., in view of the paramount importance to the welfare of the child, the petitioner in G.O.P. 13/2014 who is the father is not entitled for the custody of minor boy.

23. As per the admission made by P.W.1/father of the minor children that for the welfare of the children, they have entered into the above said compromise and also agreed to withdraw Sessions Case and

Guardian O.Ps.

24.As per the evidence of both sides, it is also clear that the minor girl who is in the custody of her father is being educated and studying 6th standard and she is residing with her father only since the date of death of her mother.

25.Therefore, for the above foregoing reasons, the grandfather/petitioner in G.O.P. 12/2014 is not entitled for the custody of minor girl. Hence, these points are answered accordingly.

26. Point No. 3:

In the result, these petitions are dismissed without costs.

Typed to my dictation, corrected and pronounced by me in open Court, this the 2nd day of January, 2019.

Sd/- B.Gayatri

IV ADDL. DISTRICT JUDGE, KAKINADA.

FAC. XII ADDL. DISTRICT JUDGE

PITHRPURAM

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APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For petitioner :

P.W-1: Marneedi Srinivas

For Respondent:

R.W-1: Keerthi Venkateswara Rao

R.W-2: Keerthi Venkata Lakshmi

Documents marked

For petitioner:

Ex.A-1: Birth certificate of M. Aravind.

Ex.A-2: Certified copies of orders in Crl.M.P.No. 583/2011.

Ex.A-3: Certified copy of charge sheet in Cr. No. 151/2009.

For Respondent:

Ex.B1 : Receipt issued by Saraswathi Vidya Niketan, Mangavaram, dated 18-6-2010.

Ex.B2 : Receipt issued by Saraswathi Vidya Niketan, Mangavaram, dated 18-8-2010.

Ex.B3 : Receipt issued by Saraswathi Vidya Niketan, Mangavaram, dated 5-4-2011.

Ex.B4 : Receipt issued by Saraswathi Vidya Niketan, Mangavaram, dated 11-8-2011.

Ex.B5 : Receipt issued by Sri Prakash School, Tuni dated 10-07-2012.

Ex.B6 : Receipt issued by Sri Prakash School, Tuni dated 10-07-2012.

Ex.B7 : Receipt issued by Sri Prakash School, Tuni dated 14-06-2012.

Ex.B8 : Fixed Deposit receipt in favour of M. Arvind dated 18-11-2009

Ex.B9 : Fixed Deposit receipt in favour of M. Supreethi dt. 18-11-2009

Ex.B10 : Original bunch of receipts ( 27 in Nos.) Ex.B11 : FA2 progress report dt. 14.9.2016.

Ex.B12 : Term 1 progress 2016-17, dated 17.10.2016. Ex.B13 : FA3 progress report dt. 17.12.2016. Ex.B14 : FA4 progress report dated 11.2.2017.

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Ex.B15 : Term 2 progress report 2016-17 dated 22.03.2017. Ex.B16 : FA1 progress report dated 22.06.2017.

Ex.B17 : Certificate issued by UNIFIED council for Olympiad 2015 Class - III

Ex.B18 : Certificate of Excellence issued by Sri Prakash Vidyaniketan, Tuni.

Ex.B19 : Certificate of Appreciation issued by Unified Cyber Olympaid dated 9.9.2015.

Ex.B20 : Certificate of Appreciation issued by Unified Cyber Olympaid dated 9.9.2015.

Ex.B21 : Hall ticket relating to science Talent Examination conducted by Unified Council.

Ex.B22 : Certificate of appreciation issued by Unified Council dated 4-12-15. Ex.B23 : Certificate and Marks sheet of National Level Science Talent search examination issued by Unified Council dated 4-12-2015.

Ex.B24 : Certificate of participation in National level science Talent search issued by Suchirindia Foundation dated 14.03.2016.

Ex.B25 : Certificate of Indian Talent Examination (NEIT)

Ex.B26 : Certificate of Completed issued by NIIT dated 18.03.2016.

Ex.B27 : Certificate of Participation issued by Science Olympiad Foundation. Ex.B28 : Certificate of participation issued by Kriya Children's Festival dated 26.02.2017.

Ex.B29 : Certificate of appreciation issued by XSEED Foundation for life dated 22.06.2017.

Ex.B30 : Letter issued by Head Master, Sri Saraswathi Vidyaniketan dated 8.4.2011 (marked subject to objection, proof and relevancy).

Ex.B31 : Study and conduct certificate issued by Head Master, Sri Prakash Vidya Niketan, Tuni dated 5.8.2017.

Ex.B32 : Study and conduct certificate issued by Head Master, Sri Prakash Vidya Niketan, Tuni dated 2.8.2017.

Ex.B33 : Acceptance deed (Voppudala Pathram) executed by petitioner in favour of respondent (marked subject to objection, proof and relevancy).

Ex.B34 : Medical Physical fitness certificate issued by Dr. K.Maheswara Rao, Civil Assistant Surgeon, Area Hospital, Tuni, dated 31.07.201

Ex.B35 : Original Registered gift settlement deed in favour of Marneedi Supreethi and Aravind, represented by the respondent vide its 12 document No. 9976/2011 registered at SRO, Kakinada, dated 11- 11-2011. Ex.B36 : Original Registered gift settlement deed in favour of Marneedi Arvind, represented by the respondent vide its document No. 4869/2011 registered at SRO, Pithapuram, dated 11-11-2011. Ex.B37 : Khararunama executed in between the petitioner and respondent

dated 10-11-2011 (marked subject to objection, proof and

relevancy).

Sd/- B.Gayatri

IV A.D.J., KKD.

FAC. XII A.D.J., PITHAPURAM.

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G.O.P. 12/2014 D.D. 2-1-2019

a)That the petition be and the same is hereby dismissed;

b)That each party do bear its own costs of the petition.

// by order //

Superintendent

G.O.P. 13/2014 D.D. 2-1-2019

c)That the petition be and the same is hereby dismissed;

d)That each party do bear its own costs of the petition.

// by order //

Superintendent

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IN THE COURT OF THE XII ADDITIONAL DISTRICT JUDGE PITHAPURAM

PRESENT: Smt. B. Gayatri,

IV Additional District Judge, Kakinada

FAC. XII Additional District Judge, Pithapuram

Wednesday, the 2nd day of January, 2019

GUARDIAN O.P. Nos. 12 of 2014 and 13 of 2014

(GOP 12/2014 - In the matter of appointment of guardian of Marneedi Supreethi, Grandchild of petitioner and daughter of respondent) (GOP 13/2014 - In the matter of appointment of guardian of Marneedi Aravind, S/o. Marneedi Srinivasu)

G.O.P. 12/2014:

Between :

Keerthi Venkateswara Rao .. Petitioner

A n d

Marneedi Srinivasu .. Respondent

G.O.P. 13/2014:

Between :

Marneedi Srinivasu .. Petitioner

A n d

Keerthi Venkateswara Rao .. Respondent

G.O.P. 12/2014 coming on 19-12-2018 before me in the presence of Sri K.V.V. Chalapathi, Advocate for the petitioner and of Sri M. Dharma

Reddy, Advocate for the respondent and G.O.P. 13/2014 coming on 19-12- 2018 before me in the presence of Sri M. Dharma Reddy, Advocate for the petitioner and of Sri K.V.V. Chalapathi, Advocate for the respondent and on hearing both sides and the matter having stood over for consideration till this day, this Court made the following:

2

C O M M O N O R D E R

G.O.P.12/2014

This petition is filed by the petitioner under Sections 7 and 9 of

Guardians and Wards Act to appoint the petitioner as guardian of the minor

Mameedi Supreethi, aged 4 years and for custody of the said minor child from the respondent who is the father of the minor child, for costs and such other relief's.

2.The brief averments of the petition are that the petitioner is the maternal grandfather of the minor girl Mameedi Supreethi, aged 4 years who born on 9.5.2005. It is stated that the mother of the minor girl by name

Sujatha was given in marriage to the respondent and she was killed on 2.8.2009 by her husband i.e., the respondent, her mother-in-law Suryavathi and sister- in-law Dasupatruni Manga and her husband Lakshmana Rao and a case in Crime No.151/2009 which has been numbered as P.R.C.19/2009 is pending before J.F.C.M. Court, Pithapuram.

It is stated that during the lifetime of said Sujatha, respondent harassed her for additional dowry and all his family members subjected her to cruelty. They never looked after her and her two children. It is stated that the petitioner gave Rs.1,OO,OOO/-, Rs.20,OOO/-, Rs.30,000/-, Rs.5O,OOO/- and Rs.5O,OOO/- on different dates to the respondent and his family members as per their demands, with a hope that his daughter and grand children will be look after well by them. It is stated that due to the ill- treatment, Sujatha used to reside at her parents' house at Satyavaram 3 village and as such, grand children Suprithi and Aravind are very much attached to the petitioner and his family members.

It is stated that the petitioner has landed properties at

Satyavaram village and he is doing real estate business and out of which, he is getting sufficient income to look after the welfare of the minor granddaughter Supriti.

It is stated that the respondent is not looking after the minor girl

Supriti properly. It is stated that when the petitioner requested the respondent to handover Suprithi to him, the respondent put several conditions and insisted the petitioner to withdraw the criminal case, then he will handover Suprithi to him. It is stated that if Suprithi is allowed to be with the respondent, her educational career and mental development will badly effect and there is a life threat also to her. Hence, the petition.

3. The respondent filed counter denying the allegations made in the petition stating that the petitioner is residing at Satyavaram which is a small village situated in Payakaraopeta Mandal and it is an undeveloped area in

Education and there are no proper educational institutions in a radius of 50 km., where the minor child can be sufficiently educated. Hence, prays this court to dismiss the petition with costs.

G.O.P.13/2014

4. This petition is filed by the petitionerunder Sections 7 to 10 of

Guardians and Wards Act, 1890 to appoint the petitioner as guardian of the minorMameedi Aravind, aged 5 years and for custody of the said minor child from the respondent who is the maternal grandfather of the minor child, for costs and such other relief's.

4

5.The brief averments of the petition are that the petitioner is the natural father of minor son Marneedi Aravind who is aged about 5 years and who is in the custody of respondent at Satyavaram, Payakaraopeta

Mandal. It is stated that the petitioner's marriage was performed with one

Marneedi Sujatha who is the daughter of respondent in the month of May, 2002 with the consent of parents of both sides. Both of them lived together and were blessed with two sons and one daughter. Out of them, 1st son expired due to post birth complications.

It is stated that in 2009, the wife of the petitioner died and the respondent and his family entertained a doubt that the petitioner and his family members are responsible for her death and lodged a false complaint which is still pending. It is stated that since the date of death of the petitioner's wife, both the children were living with the petitioner.

It is stated that during the last week of March, 2011, the respondent along with his men came to Pithapuram and took away the minor boy Aravind with them, while the minor was returning from the school along with his sister. It is stated that the petitioner on coming to know about the same through his daughter, immediately went to the house of respondent with elders, but the respondent did not even allow the petitioner to see his son and he lodged a complaint with Pithapuram Town Police

Station.

It is stated that the respondent is residing at Satyavaram which is a small village situated in Payakaraopeta Mandal and it is an undeveloped area in Education and there are no proper educational institution in a radius of 50 km., where a male child can be sufficiently educated.

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It is stated that the petitioner is working as Assistant Professor and qualified in M.Sc., M.Phil., B.Ed., and as such he can provide better education personally. Hence, the petition.

6. The respondent filed counter denying the allegations made in the petition stating that the petitioner is not looking after the minor girl Supriti properly. It is stated that if the minor child is allowed to be with the petitioner, his educational career and mental development will badly effect.

Hence, prays to dismiss the petition with costs.

7. I.A. 1383/2014 is filed and allowed. G.O.P. 12/2014 is clubbed with G.O.P. 13/2014 and the evidence is recorded in G.O.P. 13/2014.

8. On behalf of the petitioner, the petitioner in G.O.P.13/2014 was examined as P.W.1 and got marked Exs. A.1 to A.3. On behalf of the respondent, R.Ws.1 and 2 were examined and got marked Exs. B.1 to B.37 on his behalf.

9. Heard arguments on both sides. Perused the material available on record.

10.Now the points for consideration are:

1) Whether there are any grounds to appoint the petitioner in G.O.P.13/2014 as guardian for the custody of the minor boy Aravind?

2) Whether there are any grounds to appoint the petitioner in G.O.P.12/2014 as guardian for the custody of the minor girl Supreethi?

3) To what relief?

11.Point Nos.1 and 2 :

The petitioner in G.O.P. 13/2014 was examined himself as P.W.1 and he reiterated the contents of the petition in his chief evidence affidavit 6 with regard to his marriage with the deceased who is the daughter of the respondent.

12.He stated that the respondent/grandfather of the minor children is residing at Satyavaram which is a small village, where the minor children cannot be sufficiently educated.

13. The petitioner in G.O.P. 12/2014 was examined himself as

R.W.1 and he reiterated the contents of the petition in his chief evidence affidavit stating that the mother of the minor children died only due to the harassment made by the petitioner and his family members and since the date of death of his daughter, the minor boy was with them and the minor girl is with P.W.1/father.

14.It is his version that P.W.1 is not looking after the minor girl properly. He further stated that in view of the criminal attitude of the petitioner a criminal case was registered against the petitioner and his family members for the allegation that their deceased daughter died due to the harassment made by them. It is stated that the petitioner/father of the minors is not entitled to take the custody of the minor children.

15.During cross examination P.W.1/father of the minors admitted that during pendency of the Sessions Case filed against himself and his family members due to intervention of the elders, a compromise was entered in between themselves and his father-in-law and accordingly, they were acquitted. He admitted that as per compromise they agreed to give the house property bearing D.No. 14-1-100 at Pithapuram to his son Aravind and open site of 250 sq. yards situated at Turangi to be given to his daughter and son and it is also agreed that the land to an extent of Ac.1.50 cents stood in the name of his deceased wife is to be given to his daughter and 7 son. He admitted that it was also agreed as per the compromise the gold given to his deceased wife by her parents is to be given to his father-in-law to safeguard the same till the marriage of his minor daughter and the same to be given to his daughter at the time of her marriage. He admitted that as on the date of the said compromise, the Sessions Case, Guardian O.P. filed by himself and Guardian O.P. filed by his father-in-law are pending. He

deposed that for the welfare of the children, they have entered into

the above said compromise and also agreed to withdraw Sessions

Case and Guardian O.Ps. He also admitted that he executed a gift deed in favour of his son and daughter in respect of the house situated at

Pithapuram by mentioning his father-in-law as guardian.

16. He deposed that his minor son is studying 4th standard at Sri

Prakash International School, Tuni. He deposed that about one year back when he took his daughter to the house of his in-laws at Tuni, he observed his son. He deposed that he is not paying school fees of his son and even not spending money for his necessities. He admitted that since 2011 his father- in-law only looking after his son.

17.From the above admissions made by P.W.1, it is clear that subsequent to the death of his deceased wife, his father-in-law /R.W.1 filed

Criminal Case against himself and his family members alleging that due to their harassment only his daughter died. During the pendency of the said criminal case, for the welfare of the children, they have entered into compromise and agreed to withdraw Sessions Case and Guardian O.Ps.

which are pending. Further he also admitted that he did not pay not even a single pie to the school fee or any expenditure of his minor son and had seen 8 his son only for one time in a year. Admittedly, the minor son is with R.W.1 only since 2011 and he is studying in Sri Prakash International School, Tuni.

18.It is also an admitted fact that the minor girl is with P.W.1 only since the date of death of her mother and she is studying in Sri Saraswathi

Vidya Niketan.

19.As per Section 6 of Hindu Minority and Guardianship Act, 1956 father becomes the natural guardian, but at the same time the welfare of the child should be of paramount importance while giving the custody of the child.

20. As per Section 13 of the Act, the father, natural guardian is entitled to have the custody of the child if he has not done any act to dis-entitle himself for custody of minor child.

21.In view of Section 17 of the Act, also the welfare of the minor is the dominant consideration in appointing the guardian. Therefore, the character, capacity, the nearness to the minor of the proposed guardian are to be given preference and the Court is not bound to appoint the person having preferential claim for guardianship under the personal Law.

22.It was observed in a decision reported in AIR 1993

Allahabad 230 para 14 in between Ravi Kanth Keshri and another Vs.

Krishna Kumar Gupta and others, that - “Child living with in-laws since death of her mother – Petition by child's father for custody – Welfare of child is a paramount consideration – Child is being looked after properly in maternal home – Family having sufficient means and medical as well as educational facilities available there –

Petitioner/father is not entitled to custody of child.” 9

In view of the above decision, in the present case also, as the minor boy is with the petitioners/maternal grandparents only since his childhood and since the date of the death of his mother and criminal case was also filed against the respondent for the allegations under Section 498-

A, 306 I.P.C., in view of the paramount importance to the welfare of the child, the petitioner in G.O.P. 13/2014 who is the father is not entitled for the custody of minor boy.

23. As per the admission made by P.W.1/father of the minor children that for the welfare of the children, they have entered into the above said compromise and also agreed to withdraw Sessions Case and

Guardian O.Ps.

24.As per the evidence of both sides, it is also clear that the minor girl who is in the custody of her father is being educated and studying 6th standard and she is residing with her father only since the date of death of her mother.

25.Therefore, for the above foregoing reasons, the grandfather/petitioner in G.O.P. 12/2014 is not entitled for the custody of minor girl. Hence, these points are answered accordingly.

26. Point No. 3:

In the result, these petitions are dismissed without costs.

Typed to my dictation, corrected and pronounced by me in open Court, this the 2nd day of January, 2019.

Sd/- B.Gayatri

IV ADDL. DISTRICT JUDGE, KAKINADA.

FAC. XII ADDL. DISTRICT JUDGE

PITHRPURAM

10

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For petitioner :

P.W-1: Marneedi Srinivas

For Respondent:

R.W-1: Keerthi Venkateswara Rao

R.W-2: Keerthi Venkata Lakshmi

Documents marked

For petitioner:

Ex.A-1: Birth certificate of M. Aravind.

Ex.A-2: Certified copies of orders in Crl.M.P.No. 583/2011.

Ex.A-3: Certified copy of charge sheet in Cr. No. 151/2009.

For Respondent:

Ex.B1 : Receipt issued by Saraswathi Vidya Niketan, Mangavaram, dated 18-6-2010.

Ex.B2 : Receipt issued by Saraswathi Vidya Niketan, Mangavaram, dated 18-8-2010.

Ex.B3 : Receipt issued by Saraswathi Vidya Niketan, Mangavaram, dated 5-4-2011.

Ex.B4 : Receipt issued by Saraswathi Vidya Niketan, Mangavaram, dated 11-8-2011.

Ex.B5 : Receipt issued by Sri Prakash School, Tuni dated 10-07-2012.

Ex.B6 : Receipt issued by Sri Prakash School, Tuni dated 10-07-2012.

Ex.B7 : Receipt issued by Sri Prakash School, Tuni dated 14-06-2012.

Ex.B8 : Fixed Deposit receipt in favour of M. Arvind dated 18-11-2009

Ex.B9 : Fixed Deposit receipt in favour of M. Supreethi dt. 18-11-2009

Ex.B10 : Original bunch of receipts ( 27 in Nos.) Ex.B11 : FA2 progress report dt. 14.9.2016.

Ex.B12 : Term 1 progress 2016-17, dated 17.10.2016. Ex.B13 : FA3 progress report dt. 17.12.2016. Ex.B14 : FA4 progress report dated 11.2.2017.

11

Ex.B15 : Term 2 progress report 2016-17 dated 22.03.2017. Ex.B16 : FA1 progress report dated 22.06.2017.

Ex.B17 : Certificate issued by UNIFIED council for Olympiad 2015 Class - III

Ex.B18 : Certificate of Excellence issued by Sri Prakash Vidyaniketan, Tuni.

Ex.B19 : Certificate of Appreciation issued by Unified Cyber Olympaid dated 9.9.2015.

Ex.B20 : Certificate of Appreciation issued by Unified Cyber Olympaid dated 9.9.2015.

Ex.B21 : Hall ticket relating to science Talent Examination conducted by Unified Council.

Ex.B22 : Certificate of appreciation issued by Unified Council dated 4-12-15. Ex.B23 : Certificate and Marks sheet of National Level Science Talent search examination issued by Unified Council dated 4-12-2015.

Ex.B24 : Certificate of participation in National level science Talent search issued by Suchirindia Foundation dated 14.03.2016.

Ex.B25 : Certificate of Indian Talent Examination (NEIT)

Ex.B26 : Certificate of Completed issued by NIIT dated 18.03.2016.

Ex.B27 : Certificate of Participation issued by Science Olympiad Foundation. Ex.B28 : Certificate of participation issued by Kriya Children's Festival dated 26.02.2017.

Ex.B29 : Certificate of appreciation issued by XSEED Foundation for life dated 22.06.2017.

Ex.B30 : Letter issued by Head Master, Sri Saraswathi Vidyaniketan dated 8.4.2011 (marked subject to objection, proof and relevancy).

Ex.B31 : Study and conduct certificate issued by Head Master, Sri Prakash Vidya Niketan, Tuni dated 5.8.2017.

Ex.B32 : Study and conduct certificate issued by Head Master, Sri Prakash Vidya Niketan, Tuni dated 2.8.2017.

Ex.B33 : Acceptance deed (Voppudala Pathram) executed by petitioner in favour of respondent (marked subject to objection, proof and relevancy).

Ex.B34 : Medical Physical fitness certificate issued by Dr. K.Maheswara Rao, Civil Assistant Surgeon, Area Hospital, Tuni, dated 31.07.201

Ex.B35 : Original Registered gift settlement deed in favour of Marneedi Supreethi and Aravind, represented by the respondent vide its 12 document No. 9976/2011 registered at SRO, Kakinada, dated 11- 11-2011. Ex.B36 : Original Registered gift settlement deed in favour of Marneedi Arvind, represented by the respondent vide its document No. 4869/2011 registered at SRO, Pithapuram, dated 11-11-2011. Ex.B37 : Khararunama executed in between the petitioner and respondent

dated 10-11-2011 (marked subject to objection, proof and

relevancy).

Sd/- B.Gayatri

IV A.D.J., KKD.

FAC. XII A.D.J., PITHAPURAM.

13

G.O.P. 12/2014 D.D. 2-1-2019

a)That the petition be and the same is hereby dismissed;

b)That each party do bear its own costs of the petition.

// by order //

Superintendent

G.O.P. 13/2014 D.D. 2-1-2019

c)That the petition be and the same is hereby dismissed;

d)That each party do bear its own costs of the petition.

// by order //

Superintendent

1

IN THE COURT OF THE XII ADDL. DISTRICT JUDGE:

PITHAPURAM

Present: Smt. B.Gayatri

IV Addl. District Judge, Kakinada (FAC) XII Addl. District Judge, Pithapuram

Wednesday, this 19th day of December, 2018

APPEAL SUIT No.32/2018

Between:

Sariki Marinabbayi, S/o. Yarra Appayya, A/60 years, Cultivation, Ravikampadu, Thondangi Mandal.

.. Appellant/Plaintiff

And

1.Sariki Narayudu, S/o. Subbarao, A/60 years, Cultivation, Ravikampadu, Thondangi Mandal.

2.Sariki Sathi Raju, S/o. Subba Rao, A/58 years, Cultivation, Ravikampadu, Thondangi Mandal.

.. Respondents/Defendants

On Appeal against the decree and Judgment dated 06.03.2018 in

O.S.319/2011 on the file of Principal Junior Civil Judge, Tuni.

Between:

Sariki Marinabbayi, S/o. Yarra Appayya, A/60 years, Cultivation, Ravikampadu, Thondangi Mandal.

.. Plaintiff

And

1.Sariki Narayudu, S/o. Subbarao, A/60 years, Cultivation, Ravikampadu, Thondangi Mandal.

2.Sariki Sathi Raju, S/o. Subba Rao, A/58 years, Cultivation, Ravikampadu, Thondangi Mandal.

.. Defendants

This Appeal coming on 05.12.2018 for hearing before me in the presence of Sri T.P.R. Chandra Sekhar, Advocate for Appellant; and Case against 1st respondent is abated and Sri B.A.K.E.B., Advocate for 2nd

Respondent and the matter having stood over for consideration till this day, the Court delivered the following:

2

J U D G M E N T

1.This appeal suit arises out of Decree and Judgment dated 06.03.2018 in O.S.319/2011 on the file of Principal Junior Civil Judge,

Tuni whereby and where under the learned trial Judge dismissed the suit for permanent injunction.

2.In the Trial Court, Plaintiff instituted the suit for permanent injunction to restrain the defendants and their men from ever interfering with the peaceful possession and enjoyment of the suit schedule property by the appellant/Plaintiff in any manner whatsoever.

3.The brief averments of the suit are that:

(i)The Plaintiff is the absolute owner and possessor of the suit schedule property i.e., Ac.0.03 cents of land, plot No.5 in survey number 55 and 69 of Ravikampadu Village. It is further submitted that, he got the same through the proceedings of Mandal Revenue Officer, Tuni under reference – (B) 823/1989 dated 06.02.1990 as the Plaintiff belongs to weaker section. It is further submitted that, since the date of such allotment he is in absolute uninterrupted possession and enjoyment of the same with right, title and interest to the knowledge of one and all including the

Defendants. It is further submitted that, the Plaintiff constructed a house in the suit schedule property and residing therein with his family and paying tax and electricity charges for the plaint schedule property.

3

(ii)It is further submitted that, the Defendants are having their house on the southern side proclaiming in the Village, since two days that they will not allow the Plaintiff to enjoy the suit schedule property and they will trespass into the same and will dispossess the Plaintiff. It is further submitted that, if the Defendants are allowed to do so the Plaintiff will be put to much loss and hardship which cannot be compensated by way of damages.

4.In the counter of respondent denying the material allegations and further submitted that:

(i)Plaintiff is not the owner of the suit schedule property and he has no right, title, interest or possession over the suit schedule property. It is further submitted that, the proceedings of the Mandal Revenue Officer, Thondangi

dated 06.02.1990 is not related to the suit schedule

property. It is further submitted that, the proceedings of the Mandal Revenue Officer is not containing the name of the neighbours as shown in the suit schedule property and it also does not contain the door number to show that the tax receipts and electricity bills are related to the suit schedule property.

(ii)It is further submitted that, the property which is situated on the northern side of the house of 1st Defendant i.e., Sarika 4

Narayudu belongs to one Meka Baby, W/o. Baburao and the said Meka Baby is in possession and enjoyment of the same from long time by raising a thatched hut in southern half portion. It is further submitted that, the suit schedule property is not in possession and enjoyment of the Plaintiff at any point of time. It is further submitted that, the

Plaintiff filed this suit against the Defendants by showing false boundaries with support of the tax receipts and electricity bills are not related to the suit schedule property.

(iii)It is further submitted that, the suit is filed to harass the

Defendants for the reasons best known to him. It is further submitted that, there is no tax to the thatched huts situated in Ravikampadu Village, hence the tax receipts filed by the

Plaintiff are no way concerned to the suit schedule property.

It is further submitted that, the Plaintiff has no cause of action to filed the suit against the Defendants since he is not in possession of the suit schedule property and the allegations made in the cause of action paragraph of the plaint are false and concocted for the purpose of the suit.

5.Basing on the above pleadings, the learned trial Judge framed the following issue for trial:

(i)Whether the Plaintiff is in possession and enjoyment of the suit schedule property as on the date of filing of the suit?

5

(ii)Whether the Plaintiff is entitled for permanent injunction as prayed for?

(iii)To what relief?

6.During course of trial, on behalf of Plaintiff himself examined as

PW.1 and got marked Ex.A.1 to A.3 and also examined PW.2 and PW.3.

The Defendants examined DW.1 to DW.3 and got marked Ex.B.1 and B.2.

7.Heard both sides.

8.The points for determination are –

1)Whether the decree and judgment dt. 6-3-2018 passed by the trial court in O.S. 319/2011 warrants any interference in this appeal?

2)To what relief?

9.POINT No.1:PW.1/Sariki Marinabbayi deposed that he is the absolute owner and possessor of the suit schedule property i.e., Ac.0.03 cents of house plot in Survey No.55 and 69 bounded by East, plot No.4 of

Yedida Masarao, South-Plot No.8 of Sarika Narayudu, West- Plot No.6 of

Sarika Pamulu, North-Road. PW.1 further stated that he got the said land from Government through the proceedings of Mandal Revenue

Officer under reference No.(B) 823/1989 dated 06.02.1990. PW.1 constructed a house in it and residing therein with his family and paying tax and electricity charges for the suit schedule property.

10.PW.1 has got marked two house tax receipts for the house in

Assessment No.188 and Door No.3-36 dated 15.03.2010 and 30.03.2002 6 as Ex.A.1 and A.4, Electricity bills in the name of the Plaintiff as Ex.A.2.

Though, the Plaintiff mentioned that he has constructed a house in the suit schedule property and residing in it, but he has not mentioned the house number of his house either in the plait or in the plaint schedule.

There is no material on the record to say that, Ex.A.1 house tax receipts are pertaining to the house said to be constructed in the suit schedule property, as the door number of the house constructed in the suit schedule property is not mentioned either in the plaint or in the plaint schedule. Electricity bills under Ex.A.2 does not contain the door number.

11.Plaintiff did not file the proceedings of the Mandal Revenue

Officer under which he said to have got the suit schedule property, but he filed a certificate issued by Tahsildar, Thondangi saying that a house site patta is issued to the Plaintiff by their office under reference

No.B/823/89 dated 06.02.1990, which is marked as Ex.A.3.

12.Defendants contended that suit schedule property is not true and correct, the boundaries are also not correct. The suit schedule property belongs to one Meka Baby, wife of Baburao. In support of their contention the said Meka Baby who is examined as DW.1 filed a possession certificate of house site issued by Tahsildar, Tuni, issued in the name of Meka Baby, which is marked as Ex.B.1.

13.On a perusal of Ex.B.1, it is found that, it is a house site of possession certificate in the name of Meka Baby and Ac.0.72 cents of 7 land is in possession of the said Meka Baby and the boundaries of the said Ac.0.72 cents are East-Road, South House of Sarika Narayana, West-

House of Sarika Marinabbai, North-Cheruvugattu Road and its Survey

No.55.

14.Plaintiff did not file the proceedings of the Mandal Revenue

Officer, Thondangi under which he got the suit schedule property and further the Plaintiff did not give a measurements of suit schedule property. When the Defendant is specifically stated that, the suit schedule property does not belong to the Plaintiff, but belongs to one

Meka Baby and the Plaintiff never resided in the suit schedule property, then it is a burden of the Plaintiff to prove that he is in possession of the suit schedule property. Further, the door number of the house which is said to be constructed in the suit schedule property is not given either in the plaint or in the plaint schedule. Therefore, there is no material on record to say that, Ex.A.1 house tax receipts are pertaining to the house, which is constructed in the suit schedule property. It shows that, the

Plaintiff did not come to the court with clean hands, therefore he is not entitled for the equitable relief of permanent injunction as prayed for.

15.In view of the above discussion this court is of the view that, the

Plaintiff failed to prove that, he is in possession of the suit schedule property as on the date of the filing of the suit and the Plaintiff did not come to the court with clean hands, therefore he is not entitled for the equitable relief or permanent injunction. Issues No.1 and 2 are answered against to the Plaintiff.

8

16.For the above foregoing reasons, I am of the opinion that the decree and judgment dt. 06.03.2018 passed by the trial Court requires no interference in this appeal and they are to be confirmed in the appeal.

This point is answered accordingly.

17. POINT No.2:In view of my findings on point No.1, the decree and judgment dt. 06.03.2018 passed by the trial Court in O.S. 319/2011 are to be confirmed and the appeal is liable to be dismissed.

18. In the result, Appeal Suit No.32/2018 is dismissed without

costs, confirming Judgment and Decree dated 06.03.2018 in

O.S.319/2011 on the file of Principal Junior Civil Judge, Tuni.

Typed my dictation on computer by the personal assistant, corrected and pronounced by me in open court on this 19th day of December 2018.

Sd/- B.Gayatri

IV Addl. District Judge, Kakinada (FAC) XII Addl. District Judge, Pithapuram

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

No oral or documentary evidence is adduced on either side.

Sd/- B.Gayatri

IV ADJ

(FAC) XII ADJ

Copy to Principal Junior Civil Judge, Tuni.

1

IN THE COURT OF THE XII ADDL. SESSIONS JUDGE,

EAST GODAVARI DISTRICT, PITHAPURAM

Present : Smt. B. Gayatri, IV Addl. Sessions Judge, Kakinada FAC. XII Addl. Sessions Judge, Pithapuram

Wednesday, the 2nd day of January, 2019

CRIMINAL APPEAL No. 654 of 2015

From which court this appeal is: Additional Judicial Magistrate of preferred First Class, Tuni

Number of the case in that court: C.C.No. 152/2013

Name and description of the : Appellant Pandu Emmanuelu Raju, S/o. Devadanam, 40 years, Steel Plant Employee, Door No. MIG 1-106, Vinayaka Nagar VUDA Colony, Gajuwaka, Visakhapatnam

(Accused)

Name and description of the : Respondent Tamarana Srinivas, S/o. Swamy Naidu, 36 years, Business, Markandrajupeta, Tuni. (Complainant)

Section of law under which the: U/s. 138 of Negotiable Appellant was convicted in the Instruments Act lower court

Whether confirmed, reversed or modified. : Reversed

DATES ON WHICH:

Presentation of appeal: 21-12-2015

Filing: 28-12-2015

Hearing: 31-12-2018

Judgment: 2-1-2019

This appeal coming before me on 31-12-2018 for final hearing in the presence of Sri N. Ravi Krishna, advocate for the appellant/Accused and of Sri P. Ravi, Advocate for the respondent/complainant and upon perusing the material available on record and on hearing both sides and the matter having stood over for consideration till this day, this Court delivered the following:

2

J U D G M E N T

This appeal arises out of the judgment of the Additional Judicial

Magistrate of First Class, Tuni in C.C.No. 152/2013, dt. 2-12-2015 in which

the accused was charged for the offence punishable U/s.138 of Negotiable

Instruments Act filed by the complainant.

2.Through its judgment, dated 2-12-2015 the trial court convicted the accused U/s.255(2) Cr.P.C. for the offence U/s.138 of Negotiable

Instruments Act, and accused sentenced to undergo Simple Imprisonment for a period of Four Months and he is also directed to pay the compensation of Rs.1,00,000/- to the complainant under Section 357(3) Cr.P.C. The remand period of accused shall be set off under Section 428 Cr.P.C.

3.Aggrieved thereby the accused preferred this appeal on the file of this court.

4.The case of the complainant was that on 09-1-2011 the accused borrowed a sum of Rs.1,00,000/- from the complainant for his family expenses and to discharge sundry debts and agreeing to repay the same with interest @ 24% p.a. on demand under promissory note. On demand made by the complainant the accused issued a cheque bearing No. 684162 dated 23-11- 2012 for Rs.1,00,000/- drawn on UCO Bank, Balacheruvu Steel Township,

Visakhapatnam Branch towards part satisfaction of the said loan amount.

The complainant presented the said cheque in Central Bank of India, Tuni

Branch on 11-12-2012 and the said cheque was returned along with memo of

UCO Bank, Balacheruvu Steel Township, Visakhapatnam Branch dated 26-12- 2012 with an endorsement "Funds Insufficient" in the accused account. The complainant got issued a registered lawyer notice on 07-01-2013 and the 3 same was received by the accused on 12-01-2013. But the accused neither choose to pay the cheque amount nor gave any reply. Hence, the complaint.

5.The accused pleaded not guilty for the charge U/s. 138 of

Negotiable Instruments Act when examined and denied the offence charged against him.

6.In the trial court, on behalf of the complainant P.Ws. 1 and 2 were examined and got marked Exs.P1 to P5 on his behalf.

7. After closure of the prosecution evidence the accused was examined U/s.313 Cr.P.C., for which he denied the incriminating evidence in the prosecution witnesses and he reported no defence evidence.

8.The learned Magistrate on appreciation of oral and documentary evidence found the accused guilty for the above said charge and thereby inflicted the above sentence. It is that conviction recorded and the sentence inflicted that are challenged in this appeal.

9.Heard both sides. Perused the grounds of appeal and the material available on record.

10.On the above respective contentions of both parties, the following points arise for determination:-

1) Whether the respondent/complainant could bring home the guilt of the appellant/accused for the offence under Sec.138 of Negotiable Instruments Act?

2) Whether the impugned Calendar and Judgment are liable to be set aside?

11.POINT Nos.1 & 2:

In this case the complainant himself was examined as P.W.1 and got marked Exs.P.1 to P5 and also got examined P.W.2.

4

12. The complainant who was examined as P.W.1 filed his chief examination affidavit and reiterated the contents in the complaint stating that the accused borrowed an amount of Rs.1,00,000/- from him for his family expenses and to discharge sundry debts on 9-1-2011 and agreeing to repay the same with interest @ 24% p.a. and in discharge of it he has executed demand promissory note and on demand the accused issued a cheque towards part satisfaction of the said amount. In support of his contention, he got marked the cheque as Ex.P-2 which is drawn for Rs.1,00,000/- in favour of the complainant. The further contention of the complainant is that he has presented Ex.P-2 cheque in his bank for collection and the same is returned for the reason 'Funds Insufficient.' In support of his contention, he got marked the cheque return memo of UCO Bank, Balacheruvu Steel Township,

Visakhapatnam Branch as Ex.P-3.

13. The further contention of the complainant is that on 07-01-2013 i.e., within thirty days of the return he has got issued the legal notice to the accused demanding him to pay the amount under Ex.P-2 cheque. In support of his contention, he got marked the office copy of legal notice as Ex.P-4.

The further contention of the complainant is that the accused received the said notice, but failed to pay the amount. In support of his contention, he got marked the served postal acknowledgement as Ex.P-5.

14. To prove that the said cheque is legally enforceable debt, the complainant got marked the promissory note as Ex.P-1. On perusal of Ex.P.1 promissory note, it is found that it is drawn in favour of the complainant for

Rs.1,00,000/- on 09-01-2011. The accused did not deny the signature on

Ex.P-1 promissory note. He says that he has taken an amount from one 5

Karanam Jagga Rao and at that time he has given empty signed promissory note and cheque as security and the said Karanam Jagga Rao fabricated

Ex.P-1 promissory note and Ex.P-2 cheque and falsely filed this case against the accused through the complainant.

15. The contention of the accused is that he has given empty signed promissory note and cheque to one Karanam Jagga Rao and the said

Karanam Jagga Rao got filed this case falsely against the accused through the complainant and he further contended that he does not know the complainant. In the cross-examination of P.W.1, the learned defence counsel suggested the same to P.W.1 and the same is denied. The said suggestion shows that the accused is not denying the signature on Ex.P-1 promissory note and Ex.P-2 cheque. Since the accused is not denying his signature on

Ex.P.2 cheque and from the evidence of P.W.1 coupled with EXs. P.1 to P.5 it shows that the complainant has established the factual basis of this case.

Therefore, the presumption· under section 139 of Negotiable Instruments Act is drawn in favour of the complainant.

16. Since the presumption under section 139 of Negotiable

Instruments Act is drawn in favour of the complainant, now the burden is on the accused to rebut the said presumption, that Ex.P-2 cheque is not given to the complainant in discharge of the legally enforceable debt. To prove the said contention the accused has not placed any evidence. Except the suggestion that empty signed promissory note and cheque are given to one

Karanam Jagga Rao and the said Karanam Jagga Rao fabricated the same as

Ex.P-1 promissory note and Ex.P-2 cheque and got filed this case falsely against the accused, no material is elicited to rebut the presumption. When the accused is contending that he has given empty signed promissory note 6 and cheque to the said Karanam Jagga Rao, he should have got examine the said Karanam Jagga Rao or at least he has to establish his case though not beyond all reasonable doubt but by preponderance of probabilities, as the standard of proof for the accused is not beyond all reasonable doubt, but only preponderance of probabilities. But tile accused has not placed any material before this Court to rebut the said presumption.

17. In view of the above discussion, this Court is of view that the complainant proved his case against the accused for the offence under section 138 of Negotiable Instruments Act and the accused failed to rebut the presumption which is drawn in favour of the complainant under section 139 of Negotiable Instruments Act. Therefore, the complainant proved his case and the accused is held liable for the offence punishable under section 138 of N.I. Act.

18. When the matter is posted for arguments, the appellant filed memo which was also endorsed by the respondent/complainant that the matter has been compromised due to the intervention of the elders and in view of the compromise, the appellant/accused paid Rs.1,00,000/- and the respondent/complainant received the same towards full and final settlement between the appellant and the respondent.

19. It was observed in the decision reported in 2000 Crl.L.J. 4671 in between P. Mohan Babu Vs. D. Ramaswamy and another at para

No.3 – that when the appellant paid the entire amount covered by the disputed cheque during the pendency of appeal and the affidavit filed by the complainant that the complainant is fully satisfied with the payment, sentence of imprisonment is altered to save the appellant.

7

In view of the above said observation, in the present case also as the appellant paid the amount to the respondent/complainant towards full and final settlement, the sentence imposed by the lower court is set aside in the interest of justice. The points 1 and 2 are answered accordingly.

20. In the result, the criminal appeal is allowed by setting aside the calendar and judgment passed in C.C. 152/2013 on the file of Additional

Judicial Magistrate of First Class, Tuni dt. 2-12-2015.

Typed to my dictation by the Personal Assistant, transcribed by her, corrected and

pronounced by me in the open Court, this the 2nd day of January, 2019.

Sd/- B.Gayatri

IV ADDL. SESSIONS JUDGE

KAKINADA.

FAC. XII ADDL. SESSIONS JUDGE,

PITHAPURAM

No Additional oral or documentary evidence adduced on either side.

Sd/- B.Gayatri

IV A.S.J.

Kakinada. Fac. XII A.S.J.,

PITHAPURAM

Copies submitted to :

1. The Registrar (Judicial), Hon'ble High Court for the State of Telangana and the State of Andhra Pradesh, Hyderabad.

2. The District Judge, East Godavari, Rajahmundry.

3. The Additional Judicial Magistrate of First Class, Tuni along with the lower court record.

1

IN THE COURT OF THE I ADDITIONAL

SENIOR CIVIL JUDGE, RAJAHMUNDRY.

PRESENT : B.GAYATHRI, B.Sc., B.L.,

I ADDITIONAL SENIOR CIVIL JUDGE, RAJAHMUNDRY.

TUESDAY, THE TWENTY-FOURTH DAY OF MARCH,

TWO THOUSAND FIFTEEN.

ORIGINAL SUIT No.886 / 2014. BETWEEN: Bonthu @ Boddupalli Satya Vasundara, W/o.Pandurangarao, Hindu, aged 45 years, Advocate by profession and properties, R/o.D.No.60-9-4, 6th lane,

Siddhartha Nagar, Vijayawada, Krishna District ....PLAINTIFF

AND 1.Bonthu Ramesh Babu, S/o.Suryanarayana(late), Hindu, aged 47, Properties, R/o.D.No.2-256, Valasapakala, Vakalapudi Sivaru, Kakinada(M) 2.Lingala Vijaya Durga, W/o.Srinivasarao, Hindu, aged 42, Properties, R/o.Flat No.9, Fourth Floor, Sarojini Towers, Street No.21, CBM Compound, Visakhapatnam 3.Killamsetty Sai Sailaja, W/o.Ravi Prasad, Hindu, aged 41, Properties, R/o.Flat No.G-4, Chandra Teja Apartment, Street No.21, CBM Compound,

Visakhapatnam. ....DEFENDANTS

This suit is coming up before me for final hearing, on 04.03.2015, in the presence of Sri Madala Venkat Rao, advocate for the plaintiff and the defendants remained set exparte, and the matter having stood over for consideration till this day, this Court made the following;

J U D G M E N T

This suit is filed by the plaintiff, against the defendants, for partition of the plaint schedule properties into 4 equal shares and to allot one such share to the plaintiff, to grant future mesne profits apart from costs of the suit.

2.Briefly, the case of the plaintiff is that the first defendant is his elder brother, and defendants 2 and 3 are his sisters, and the plaintiff and defendants are the children of Sri Bonthu Suryanarayana and

Suryakantham. Bonthu Suryanarayana died intestate on 17.11.2001 leaving the plaintiff, defendants and their mother. During the lifetime, the said Bonthu Suryanarayana acquired plaint A schedule properties.

During the lifetime, Bonthu Suryakantham acquired plaint B schedule properties and also died intestate on 01.11.2013. During the lifetime, the said Bonthu Suryakantham pledged her gold ornaments in the Town

Bank, Kakinada vide Gold Loan account No.23397 weighing 32 grams 2 and also pledged gold ornaments weighing 27 grams at State Bank of

India, Sarpavaram Branch, Kakinada vide Gold Loan account

No.62282408721 and the said gold ornaments were described as plaint

C schedule. After the death of said Bonthu Suryanarayana and Bonthu

Suryakantham, the plaintiff and defendants are in joint possession of the plaint A and B schedule properties being legal heirs.

3.From the last six months, the plaintiff requesting the defendants to cooperate for partition of the schedule properties, but the defendants are postponing the same on some pretext or the other. The first defendant used to collect the lease amounts from the lease holders of plaint B schedule properties and used to share to the plaintiff and defendants 2 and 3. But this year, the first defendant having collected

Rs.1,50,000/- lease, failed to allot the share to the plaintiff. The first defendant also trying to take back the plaint C schedule pledged gold ornaments from the respective BanK without the consent of plaintiff.

The first defendant also proclaiming that he is the absolute owner of the schedule properties and the plaintiff have no right and the first defendant also threatening the plaintiff with dire consequences. The plaintiff also issued legal notice dated 17.11.2014 to the defendants, but the defendants did not respond for the same. As such, the plaintiff was obliged to file the present suit on hand for partition of the schedule properties etc.

4.The respondents did not choose contest the matter and remained set exparte.

5.To substantiate her, the plaintiff herself was examined as PW.1 and also got marked Exs.A1 to A20.

6.Heard. Perused the record.

7.Now, the point for consideration is whether the plaintiff is entitled for partition of the schedule properties as prayed for?

POINT:

8. The main case of plaintiff is that the plaintiff and defendants are children of Sri Bonthu Suryanarayana and Suryakantham, who died intestate on 17.11.2001 and 01.11.2013 leaving the plaintiff and defendants as their legal heirs. During the lifetime, the said Bonthu

Suryanarayana acquired plaint A schedule properties. During the 3 lifetime, Bonthu Suryakantham acquired plaint B schedule properties.

During the lifetime, the said Bonthu Suryakantham pledged her gold ornaments in two Banks, weighing 32 grams and weighing 27 grams at respectively(C schedule). The plaintiff and defendants are in joint possession of the plaint A and B schedule properties being legal heirs.

9. The defendants did not cooperate with the plaintiff for partition of the schedule property. The first defendant who used to collect lease amount from the schedule properties, failed to allot the share to the plaintiff for this year, and he also trying to take back the plaint C schedule pledged gold ornaments from the respective Banks. The first defendant also proclaim that he is the absolute owner of the schedule properties and the plaintiff have no right to do with the schedule properties.

10. To prove her contention, the plaintiff herself was examined as

PW.1 and reiterated the plaint averments in her chief examination affidavit and also got marked Exs.A1 to A20.

11. The defendants did not choose to contest the matter and remained set exparte. As such, the evidence of PW.1 is unchallenged and unrebutted. In that view of the matter, partitioning the schedule A and B properties as prayed by the plaintiff meets the ends of justice.

When coming to the plaint C schedule ornaments, they are pledged

before two different Banks and the same are with the pledged Banks till

now. Be that as it may, it is not possible for partition of those ornaments at this stage.

Accordingly, point is answered.

12.In the result, the suit is decreed partly. Plaint A and B schedule properties are partitioned into 4 equal shares, by allotting one such share to the plaintiff herein. The plaintiff is also entitled for future mesne profits which can be ascertained on a separate application to be filed by the plaintiff. The claim against the plant 'C' schedule property is dismissed. Each party do bear its own costs.

Typed to my dictation by the Stenographer(Gr.III), on the laptop, corrected and pronounced by me in the open Court, this the 24th day of March, Two thousand fifteen.

I ADDITIONAL SENIOR CIVIL JUDGE,

RAJAHMUNDRY.

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APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: PW.1 : Bonthu @ Boddupalli Satya Vasundara

FOR DEFENDANTS: NIL.

DOCUMENTS MARKED.

FOR PLAINTIFF: Ex.A.1 is the Death Certificate of Bonthu SUryanarayana, dt.17.11.2001. Ex.A.2 is the Office copy of Legal notice dated.17-11-2014. Ex.A.3 is the Postal acknowledgments of D.2 and D.3 dt.20-11-2014. Ex.A.4 is the returned registered cover of D.1 dt.20-11-2014. Ex.A.5 is the Valuation Certificate of Item No.1 of Plait A schedule property dt.16-12-2014. Ex.A.6 is the Valuation Certificate of item No.2 of Plaint A schedule property dt.18-12-2014. Ex.A7 is the Valuation Certificate of item NO.3 of Plaint A schedule property dt.10-12-2014 Ex.A8 is the Valuation Certificate of item No.1 of Plaint B schedule property dt.10-12-2014. Ex.A9 is the Valuation Certificate of item No.2 of Plaint B schedule property dt.10-12-2014. Ex.A.10 is the Valuation certificate of item No.3 of plaint B schedule property dt.22-10-2014. Ex.A.11 is the Valuation Certificate of item No.4 of Plaint B schedule property dt.16-12-2014. Ex.A.12 is the Valuation Certificate of item No.5 of Plaint B schedule property dt.16-12-2014. Ex.A.13 is Certified copy of Registered Sale deed No.1446/1999, dt.08-3-1999 of B.Suryanarayana. Ex.A.14 is the Registered sale deed NO.301/2001 of B.Suryanarayana dt.18-06-2001. Ex.A.15 is the Certified copy of sale deed No.330/1992 of B.Suryakantham dated 30-04-1992. Ex.A.16 is the Certified copy of Registered Sale deed No.213/1988 of B.Suryakantham, dt.11-05-1988. Ex.A.17 is the Legal-heir Certificate issued by M.R.O.,Kakinada dt.24-11-2001. Ex.A.18 is the Family Member Certificate issued by Tahsildhar, Kakinada. Ex.A.19 is the Value Assessment Certificate of Gold Ornaments for Rs.79,680/- dt.27-12-2014. Ex.A.20 is the Value Assessment Certificate of Gold Ornaments for Rs.67,230/- dt.27-12-2014.

FOR DEFENDANTS: NIL.

I A.S.C.J.

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IN THE COURT OF THE I ADDITIONAL

SENIOR CIVIL JUDGE, RAJAHMUNDRY.

PRESENT : B.GAYATHRI, B.Sc., B.L.,

I ADDITIONAL SENIOR CIVIL JUDGE, RAJAHMUNDRY.

TUESDAY, THE TWENTY-FOURTH DAY OF MARCH,

TWO THOUSAND FIFTEEN.

ORIGINAL SUIT No.886 / 2014. BETWEEN:

Bonthu @ Boddupalli Satya Vasundara, W/o.Pandurangarao, Hindu, aged 45 years, Advocate by profession and properties, R/o.D.No.60-9-4, 6th lane,

Siddhartha Nagar, Vijayawada, Krishna District ....PLAINTIFF

AND 1.Bonthu Ramesh Babu, S/o.Suryanarayana(late), Hindu, aged 47, Properties, R/o.D.No.2-256, Valasapakala, Vakalapudi Sivaru, Kakinada(M) 2.Lingala Vijaya Durga, W/o.Srinivasarao, Hindu, aged 42, Properties, R/o.Flat No.9, Fourth Floor, Sarojini Towers, Street No.21, CBM Compound, Visakhapatnam 3.Killamsetty Sai Sailaja, W/o.Ravi Prasad, Hindu, aged 41, Properties, R/o.Flat No.G-4, Chandra Teja Apartment, Street No.21, CBM Compound,

Visakhapatnam. ....DEFENDANTS

This suit is presented on 20.12.2014 and filed on 31.12.2014.

This suit is filed by the plaintiff, against the defendants, for partition of the plaint schedule properties into 4 equal shares and to allot one such share to the plaintiff, to grant future mesne profits apart from costs of the suit.

Value of the suit: Plaintiff's share in A schedule property is Rs.4,55,622/-, plaintiff's share in B schedule property is Rs.4,10,550/- and plaintiff's share in C schedule property is Rs.28,125/-. Total value of the plaintiff's share is Rs.8,94,297/-(3/4th market value), on which a fixed court fee of Rs.200/- is aid under Section 34(2) of APCF & SV Act.

Cause of action for the suit arose, when the parents of the plaintiff and defendants died intestate, leaving behind the plaintiff and defendants and their legal heirs and when the schedule properties are in joint and constructive possession of plaintiff and defendants and when the first defendant failed to pay the lease amounts to the share of the plaintiff for the last year and when the first defendant claiming that he is absolute owner of the schedule property etc., and when the defendants failed to cooperate with the plaintiff to partition the schedule properties etc., and at Rajahmundry, where the schedule properties are situated, within the jurisdiction of this Hon'ble Court.

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This suit is coming up before me for final hearing, on 04.03.2015, in the presence of Sri Madala Venkat Rao, advocate for the plaintiff and the defendants remained set exparte, and the matter having stood over for consideration till this day, this Court doth order and decree as follows; (1)that Plaint A and B schedule properties be and are hereby partitioned into 4 equal shares, by allotting one such share to the plaintiff, (2)that the plaintiff is also entitled for future mesne profits which can be ascertained on a separate application to be filed by the plaintiff, (3)that the claim against the plant 'C' schedule property be and is hereby dismissed, (4)that each party do bear its own costs. Given under my hand and the seal of this Court, this the 24th day of March, Two thousand fifteen.

I ADDITIONAL SENIOR CIVIL JUDGE,

RAJAHMUNDRY.

No memo of costs is filed on either side. (Schedule attached to decree)

I A.S.C.J.