Smt. C.R. Sumalatha,B.Sc.,L.L.B.

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IN THE COURT OF THE JUNIOR CIVIL JUDGE :: PENUKONDA

Present: Smt C.R.Sumalatha, Junior Civil Judge, Penukonda

Monday, the 3rd day of August, 2015

O.S.No.67 of 2008

Between:

1. K.G.Venkatamma W/o K.G.Venkatesulu, Age:about 52 years, Hindu, Agriculturist, Venkatareddypalli, Penukonda Mandal

2. Thotla Lakshmidevi W/o T.Anjinappa, Age:about 36 years, Hindu, Sinecure, Lakshmipuram, Hindupur Municipality …Plaintiffs

And

Thotla Padmavathi W/o T.Chalapathi, Age:about 44 years, Hindu, Agriculturist, Venkatareddipalli, Penukonda Mandal … Defendant

This petition is coming on 04-07-2015 for final hearing before me in the presence of Sri R.Sreekanth Reddy, Advocates for the Plaintiffs and of Sri H.Seshagiri Rao, Advocate for the Defendant and the matter having stood over for consideration till this day, this Court made the following:-

J U D G M E N T

1.This suit is filed by the Plaintiffs 1 and 2 against the De- fendant to divide the plaint schedule property into 3 equal shares and to allot 2/3rd share of the plaintiffs and deliver such separated share of the plaintiffs through Court.

2.Brief averments of the plaint are that their father Chinna

Subbanna and his brother Pedda Subbanna who are only sons of Ven- katappa constituted Hindu Mithakshare Joint Family, even after the death of Venkatappa their father Chinna Subbanna and his brother

Pedda Subbanna continued to be in joint. Plaintiffs further stated that 15 years ago their father Chinna Subbanna and his brother Pedda Sub- banna partitioned their ancestral and joint family properties under oral partition, in the said partition the plaint schedule house and some oth- 2 er landed properties fell to the share of their father Chinna Subbanna.

Plaintiffs further submitted that Chinna Subbanna had no male issues except plaintiffs and wife of Chinna Subbanna predeceased him. In the year 2004 disputes arose between plaintiffs and defendant on one hand and their father on the other in enjoyment of joint family proper- ties of plaintiffs and defendant, they settled their dispute in the pres- ence of elders in relation to landed properties of their joint family ex- cept plaint schedule house, plaint schedule house is remained in joint between plaintiffs, defendant and their father Chinna Subbanna and the plaintiffs, defendant and their father Chinna Subbanna are in joint possession over plaint schedule house. Plaintiffs further submits that from the beginning i.e., after death of their mother their father Chinna

Subbanna was residing with plaintiff No.1 and plaintiff No.1 was look- ing after the welfare of her father Chinna Subbanna. On 08-06-2007 their father Chinna Subbanna died, as eldest daughter plaintiff No.1 performed funeral ceremonies to Chinna Subbanna through the male heirs of Pedda Subbanna. Plaintiffs further submits that Chinna Sub- banna died in joint status with plaintiffs and defendant and after the death of Chinna Subbanna plaint schedule house is devolved upon the plaintiffs and defendant equally hence, plaintiff have 2/3rd share in plaint schedule house and Chinna Subbanna had no right to execute any deed in relation to share of plaintiffs. Plaintiffs further contended that after the death of Chinna Subbanna plaintiffs demanded for parti- tion of plaint schedule house, later, the defendant did not come for- ward for partition of plaint schedule house despite demand by re- gistered notice dt:20-07-2007 and gave reply notice with false allega- tions, hence plaintiffs are constrained to file this suit. Hence the suit.

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3.Defendant filed his written statement admitting that the defendant and plaintiffs are daughters of Chinna Subbanna and Chinna

Subbanna had no male issues and wife of Chinna Subbanna prede- ceased Chinna Subbanna and denied the other averments made in the plaint and contended that plaint schedule house was the exclusive and absolute property of Chinna Subbanna, after the death of their mother it is the defendant to look after their father Chinna Subbanna, during his life time out of love and affection while he is in sound and disposing state of mind, their father Chinna Subbanna executed registered will

dt:18-12-2003 bequeathing plaint schedule house in favour of defend-

ant subsequently on 08-06-2007 the testator of said will i.e., Chinna

Subbanna died. Therefore, will dt:18-12-2003 became final testament of Chinna Subbanna and by virtue of said will the plaint schedule house devolved upon the defendant and defendant became absolute owner of plaint schedule house and defendant has been in exclusive posses- sion and enjoyment of plaint schedule house. Defendant further con- tended that during life time of Chinna Subbanna, he conveyed the lands in S.No.93/10 and S.No.91/1 of Erramanchi Village to plaintiff

No.1, through registered document dt:10-05-2004, at the request of plaintiff No.1 it was nomenclatured as sale deed and no consideration is passed under the said sale deed. Plaintiff No.1 having taken re- gistered deed of conveyance from her father cannot dispute his right to convey the property alleging it as joint property. Plaintiff No.1 also obtained pattadar pass book and title deed pass book in her name, plaintiff No.1 concealed truth and got issued notice to the defendant for which the defendant also given suitable reply. Likewise Chinna Sub- banna also executed the registered gift deed on 10-06-2004 in favour of this defendant and also in favour of plaintiff No.2 gifting some other 4 landed properties and respective donees also accepted the said gift and also taken possession of respective properties gifted to them and eversince from the respective dates they are in exclusive possession and enjoyment of their respective properties. Plaintiff No.2 and defend- ant also obtained pattadar pass book and title deed pass book pertain- ing to the property gifted to them. The suit is patently bad for non-join- der of proper and necessary parties and misjoinder and non joinder of properties and even on the said ground suit is liable to be dismissed.

Defendant further contended that the plaintiffs never possessed the suit schedule house in any manner, joint or otherwise, hence, the suit filed for partition of plaint schedule house is not maintainable and prays to dismiss the suit with costs.

4.On considering the pleadings raised by both the parties, the following issues are settled for trial:

(1) Whether the plaint schedule is ancestral joint family of plaintiff and defendant? (2) Whether plaintiffs and the defendant are in joint possession and enjoyment of plaint schedule properties? (3) Whether plaintiffs are entitled to 2/3rd share in plaint sched- ule property? (4) Whether there is cause of action to the suit? (5) Whether the suit is bad for non joinder of proper and neces- sary parties? (6) Whether the suit is bad for mis joinder of property? (7) Whether the Court fee is paid is correct? (8) Whether the suit can be decreed as prayed for?

5.During the course of trial on behalf of the plaintiffs, the plaintiff No.1 examined herself as PW-1 and got marked Ex.A-1 and

Ex.A-2. Ex.A-1 is the office copy of legal notice dt:20-07-2007 and Ex.A- 2 is reply notice dt:28-07-2007. The plaintiffs also got ex- amined P.Adimurthy as PW-2.

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On behalf of the defendant, defendant examined himself as DW- 1 and got marked Ex.B-1 to Ex.B-5. Ex.B-1 is registered will dt:18-12- 2003, Ex.B-2 is death certificate of Chinna Subbanna dt:08-06-2007 is- sued by Village Revenue Officer, Penukonda Village and Mandal, Ex.B-3 is certified copy of sale deed dt:10-05-2004 executed by Chinna Sub- banna in favour of plaintiff No.1, Ex.B-4 is certified copy of gift deed

dt:10-06-2004 executed by Chinna Subbanna in favour of plaintiff No.2

and Ex.B-5 is registered gift deed dt:10-06-2004 executed by Chinna

Subbanna in favour defendant. The defendant also got examined one

G.R.Balakrishna as DW-2.

6.Heard arguments of learned counsel for the plaintiffs and learned counsel for defendant.

7.ISSUES 1 AND 2 :

(1) Whether the plaint schedule is ancestral joint family of plaintiff and defendant?

(2) Whether plaintiffs and the defendant are in joint possession and enjoyment of plaint schedule properties?

There is no dispute between plaintiffs 1 and 2 and defendant that plaintiffs 1 and 2 and defendant are daughters of Chinna Subbanna and Chinna Subbanna had no male issues except plaintiffs 1 and 2 and defendant and wife of Chinna Subbanna predeceased Chinna Sub- banna.

8.According to PW-1, her father Chinna Subbanna and his brother Pedda Subbanna and their father Venkatappa constituted

Hindu Mithakshra Joint Family and even after the death of Venkatappa her father Chinna Subbanna and his brother Pedda Subbanna contin- 6 ued to be in joint and about 20 years back they partitioned joint family properties under oral partition, in the said partition plaint schedule house and some other landed properties fell to the share of her father

Chinna Subbanna. PW-1 further stated that in the year 2004 disputes arose between her, plaintiff No.2 and defendant on one hand and their father on the other in enjoyment of joint family properties and they settled their dispute in the presence of elders in relation to landed properties of their joint family except plaint schedule house and plaint schedule house is remained in joint between them and they are in joint possession over plaint schedule house. During cross examination of

PW-1, PW-1 stated that she cannot give the details of properties of

Venkatappa, Pedda Subbanna and Chinna Subbanna and she cannot give details of properties that were allotted to each of the said parties in partition. Therefore, PW-1 has no knowledge about the details of joint family properties and the properties which fell to the share of her father Chinna Subbanna under partition between him and his brother

Pedda Subbanna. If PW-1 does not know about details of properties which joint family of Venkatappa, Pedda Subbanna and Chinna Sub- banna possessed, it is ununderstandable as to how could she can say that plaint schedule house is joint family property of their father

Chinna Subbanna and plaint schedule house fell to the share of Chinna

Subbanna, it is for the reasons best known to PW-1.

9.Further PW-1 in her cross examination stated that about five or six years ago partition of landed properties took place and the same is reduced into writing and she is in possession of original parti- tion document and no elders are present at the time of partition.

Whereas PW-1 in her chief affidavit filed in lieu of her chief examina- 7 tion got mentioned that in the year 2004 dispute arose between her, plaintiff No.2 and defendant on one hand and their father on the other in enjoyment of joint family properties and they settled their dispute in the presence of elders in relation to landed properties of their joint family except plaint schedule house. PW-1 on one hand stated that in the year 2004 they settled their dispute in the presence of elders with regard to enjoyment of joint family properties except plaint schedule house and the said partition is oral and on the other hand PW-2 stated that partition of landed properties is reduced into writing and she is in custody of original partition document and no elders are present at the time of partition. If really partition of joint family proper- ties took place between plaintiffs 1 and 2, defendant and their father

Chinna Subbanna certainly PW-1 could have stated about the details of joint family property devolved upon Chinna Subbanna and PW-1 could have specifically stated which of the properties fell to her share and which of the properties fell to the share of plaintiff No.2 and defendant and to their father Chinna Subbanna and PW-1 could have also stated the names of elders in whose presence they partitioned their joint fam- ily properties except plaint schedule house and certainly PW-1 could have filed original partition document which is in her custody instead of stating different versions in her evidence and there is no explanation from PW-1 as to why PW-1 did not file original partition document and why PW-1 kept quite without filing the said document to prove that ex- cept plaint schedule house which is joint family property they parti- tioned other joint family properties, it is for the reasons best known to her.

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10.To support the evidence of PW-1, PW-1 got filed Ex.A-1 leg- al notice dt:20-07-2007 issued by her to the defendant and Ex.A-2 reply notice dt:28-07-2007 issued by defendant to PW-1. The contents of Ex.A-1 goes to show that Chinna Subbanna has no right exclusively over notice schedule mentioned properties and defendant obtained gift deed dt:10-06-2004 from Chinna Subbanna in relation to item Nos.1 to 5 i.e., Ac.0-27 cents out of Ac.1-44 cents in S.No.144-1, Ac.0-12 ½ cents out of Ac.0-25 cents out of Ac.0-25 cents out of Ac.0-50 cents,

Ac.0-65 ½ cents out of Ac.1-33 cents in S.No.99-3, Ac.0-94 cents out of Ac.1-88 cents in S.No.100, Ac.2-16 cents in S.No.80-1 which are joint family properties and gift deed is void abinitio. A perusal of Ex.A-2 goes to show that the property described in the notice schedule in Ex.A-1 was the exclusive and absolute property of Chinna Subbanna father of plaintiffs and defendant and plaintiff No.1 is estopped from disputing the exclusive right of the said Chinna Subbanna, out of love and affec- tion for her, Chinna Subbanna executed registered will bequeathing his house property i.e., plaint schedule house which is item No.8 of notice schedule property, subsequently on 10-05-2004 her father Chinna Sub- banna also executed sale deed in respect of land in S.No.9-10 and

S.No.91-1 in favour of Venkatamma i.e., plaintiff No.1 but no considera- tion is passed under said sale deed and on 10-06-2004 Chinna Sub- banna also executed registered gift deeds in her favour and also in fa- vour of another daughter by name Lakshmidevi gifting Ac.0-13 ½ cents in S.No.149-1, Ac.0-94 cents in S.No.100 and Ac.0-12 ½ cents in

S.No.91-1 and Ac.0-65 ½ cents in S.No.99/3 and Ac.0-37 ½ cents in

S.No.80-1, S.No.80-2 and S.No.80-3 in her favour and an extent of

Ac.0-12 ½ cents in S.No.91-1, Ac.0-32 ½ cents in S.No.99-3 and Ac.0- 94 cents in S.No.100 and Ac.0-37 ½ cents in S.No.80-1 and S.No.80-2 9 to youngest daughter Lakshmidevi i.e., plaintiff No.2. Except filing

Ex.A-1 legal notice issued by PW-1 and Ex.A-2 reply notice issued by defendant no piece of document is filed by the plaintiffs to prove that plaint schedule house is joint family property of plaintiffs 1 and 2 and defendant.

11.To support the evidence of PW-1, PW-1 also got examined one P.Adimurthy as PW-2 who is none other than their relative, PW-2 also stated that Pedda Subbanna and Chinna Subbanna partitioned their ancestral joint family properties under oral partition about 20 years back and plaint schedule house and some other properties fell to the share of Chinna Subbanna, plaintiffs and defendant are in joint pos- session of the plaint schedule house and Chinna Subbanna has no right to execute any deed in favour of defendant.

12.During cross examination of PW-2, PW-2 candidly conceded that he was not present at the time of partition about 20 years back and he does not know the details as to extent of property and its sur- vey numbers which fell to the share of Chinna Subbanna and Pedda

Subbanna in partition and he also does not know whether partition between Chinna Subbanna and Pedda Subbanna is oral or reduced into writing. If PW-2 was not present at the time of partition and if he does not know about the details of extent and survey numbers which fell to the share of Chinna Subbanna and Pedda Subbanna in partition, it is ununderstandable as to how PW-2 can say that apart from the lands plaint schedule house is also ancestral property of father of plaintiffs and defendant i.e., Chinna Subbanna and plaint schedule house fell to the share of Chinna Subbanna in partition between Chinna Subbanna and Pedda Subbanna, it is for the reasons best known to PW-2. It is sig- 10 nificant to note that during the cross examination of PW-2, PW-2 can- didly conceded that plaint schedule house is self acquired property of

Chinna Subbanna and eversince date of death of Chinna Subbanna de- fendant is residing in plaint schedule house and plaintiff No.1 is staying in her own house near the houses of Madiga people and her name also recorded in voters list as resident in that house and eversince the date of death of Chinna Subbanna the defendant is residing in the plaint schedule house by paying electrical consumption charges. Except ex- amining PW-2, plaintiff No.1 did not examine plaintiff No.2 who is none other than her sister who is also claiming equal share in plaint sched- ule house, it is for the reasons best known to PW-1. Therefore, the evidence of PW-2 is noway helpful to PW-1 to prove that plaint sched- ule house is joint family property of Chinna Subbanna and plaint sched- ule house is in joint possession of plaintiffs 1 and 2 and defendant.

13.To rebut the evidence of PW-1 and to prove the contention of the defendant in her written statement the defendant examined her- self as DW-1 and got marked Ex.B-1 to Ex.B-5. Ex.B-1 is original will

dt:18-12-2003 executed by Chinna Subbanna in favour of DW-1 be-

queathing plaint schedule house, Ex.B-2 is death certificate of Chinna

Subbanna dt:08-06-2007 issued by Village Revenue Officer, Penukonda

Village and Mandal, Ex.B-3 is certified copy of sale deed dt:10-05-2004 executed by Chinna Subbanna in favour of plaintiff No.1 in respect of

Ac.0-45 cents of land covered under S.No.93-(10) and Ac.0-50 cents in

S.No.91-(1); Ex.B-4 is certified copy of gift deed dt:10-06-2004 ex- ecuted by Chinna Subbanna in favour of plaintiff No.2 gifting an extent of Ac.1-04 cents in S.No.144-1, in S.No.91-1 an extent of Ac.2-11 cents, in S.No.19-3 and Ac.11-28 cents and in S.No.100 of Yerramanchi Vil- 11 lage and Ex.B-5 is original gift deed dt:10-06-2004 executed by Chinna

Subbanna in favour defendant gifting an extent of Ac.1-10 cents in

S.No.91-(i), Ac.2-11 cents in S.No.99-3, Ac.11-28 cents in S.No.100,

Ac.2-16 cents in S.No.80-1, Ac.1-12 cents in S.No.80-2 and Ac.0-82 cents in S.No.80-3.

14.DW-1 in her evidence stated that plaint schedule house is self acquired property of their father Chinna Subbanna and plaint schedule house was exclusive and absolute property of her father

Chinna Subbanna and her father Chinna Subbanna constructed plaint schedule house with the exclusive amount earned by him through money lending business and he had been in exclusive possession and enjoyment of plaint schedule house and after death of their mother she looked after her father Chinna Subbanna till his death and out of love and affection her father i.e., Chinna Subbanna voluntarily executed re- gistered will dt:18-12-2003 i.e., Ex.B-1 while he is in sound and dispos- ing state of mind, on 08-06-2007 her father died and Ex.B-1 became fi- nal testament and she became absolute and exclusive owner of suit schedule house and she is in exclusive possession and enjoyment of plaint schedule house as absolute owner by paying electrical consump- tion charges.

15.PW-1 also in her evidence admitted that her father was do- ing money lending business and he also filed civil suits O.S.No.117 of 2005 against one Khaja Vali and O.S.No.306 of 2007 against one Ath- aullah, basing on promissory notes and during pendency of civil suits their father died and on behalf of their father they are pursuing cases and during cross examination of PW-1, a suggestion is put to PW-1 that she, plaintiffs and defendant recovered the amount due from the debt- 12 ors of their father equally. It is therefore, it could be safely held that father of plaintiffs and defendant i.e., Chinna Subbanna was doing money lending business during his life time and he also filed civil suits for recovery of money under promissory notes and plaintiffs and de- fendant also recovered amount due from the debtors of their father equally. PW-2 also in his evidence categorically stated that the plaint schedule house is the self acquired property of Chinna Subbanna and plaintiff is staying in her own house near the houses of Madiga people and her name also recorded in voters list as resident in that house and eversince the date of death of Chinna Subbanna the defendant is resid- ing in the plaint schedule house by paying electrical consumption charges.

16.DW-1 further stated that her father Chinna Subbanna also conveyed his exclusive property covered under S.No.93/10 and

S.No.91/01 of Erramanchi Village to plaintiff No.1 under registered sale deed dt:10-05-2004 (Ex.B-3) and at the request of plaintiff No.1 it was nomenclatured as sale deed though no amount was paid by plaintiff

No.1 under Ex.B-3, plaintiff No.1 also took possession of said property covered by Ex.B-3 and she also obtained pattadar pass book and title deed pass books in her name which is admitted by PW-1 in her evid- ence. DW-1 also got filed Ex.B-3 certified copy of sale deed dt:10-05- 2004 executed by Chinna Subbanna in favour of plaintiff No.1, Ex.B-3 categorically disclose that an extent of Ac.0-45 cents of land covered under S.No.93-(10) and an extent of Ac.0-50 cents covered under

S.No.91-(1) is conveyed to the plaintiff No.1 i.e., to PW-1 by Chinna

Subbanna. PW-1 in her evidence also admitted that her father Chinna

Subbanna executed registered will dt:18-10-2003 bequeathing plaint 13 schedule house in favour of defendant in sound and disposing state of mind and again stated that her father executed will while he is men- tally unsound and she also provided treatment to her father. If father of PW-1 i.e., Chinna Subbanna is of unsound mind in the month of

December, 2003 then how could he executed Ex.B-3 in favour of PW-1 on 10-05-2004 conveying landed property to PW-1 under Ex.B-3 it is for the reasons best known to PW-1. The evidence of PW-1 is silent wheth- er in the year 2004 his father Chinna Subbanna is hale and healthy or not and for how much period her father was mentally unsound and when he recovered and there is no either oral or documentary evid- ence to show that Chinna Subbanna was mentally not hale and healthy while executing will and PW-1 provided treatment to her father and he recovered from mental illness and on 10-05-2004 he executed Ex.P-3 in favour of PW-1.

17.At this juncture it is significant to note that Ex.B-3 certified copy of sale deed dt:10-05-2004 executed by Chinna Subbanna in fa- vour of plaintiff No.1 categorically disclose that item No.2 of notice schedule property in Ex.A-1 i.e., an extent of Ac.0-50 cents in S.No.91- 1 along with an extent of Ac.0-45 cents in S.No.93(10) is conveyed to

PW-1 by Chinna Subbanna i.e., father of plaintiffs 1 and 2 and defend- ant under Ex.B-3 whereas the contents of Ex.A-1 goes to show that item No.2 i.e., an extent of Ac.0-50 cents in S.No.91-1 is joint family property of Chinna Subbanna. If item No.2 of notice schedule property under Ex.A-1 i.e., an extent of Ac.0-50 cents in S.No.91-1 is joint family property of Chinna Subbanna how could PW-1 can purchase the same from Chinna Subbanna alone when Chinna Subbanna has other legal heir i.e., plaintiff No.2 and defendant, it is for the reasons best known 14 to PW-1. Further the evidence of PW-1 is silent whether the properties covered under Ex.B-3 is self acquired property of her father or the said property is ancestral property and how her father Chinna Subbanna ac- quired property covered under Ex.B-3 whether her father Chinna Sub- banna purchased the same or not, if purchased the source of amount to purchase the same.

18.DW-1 further stated that on 10-06-2004 her father Chinna

Subbanna also executed registered gift deed Ex.B-4 along with rights in the wells and trees gifting an extent of Ac.1-90 ½ cents which is his exclusive property along with rights in the wells and trees in favour of plaintiff No.2 and also delivered possession to plaintiff No.2, plaintiff

No.2 also accepted the gift and also obtained pattadar pass book and title deed pass book in her name and since then plaintiff No.2 is in ex- clusive possession and enjoyment of the said property gifted under

Ex.B-4. DW-1 further stated that on the same day her father also ex- ecuted registered gift deed i.e., Ex.B-5 gifting his exclusive property of

Ac.1-90 ½ cents along with rights in the wells and trees in her favour and she also accepted the gift of the property covered under Ex.B-5 and she also obtained pattadar pass book and title deed pass book and she is in exclusive possession and enjoyment of said gifted property.

DW-1 further stated that there was no joint family property and there was no partition between Pedda Subbanna and Chinna Subbanna and plaint schedule house and landed properties never fell to the share of

Chinna Subbanna during partition and it is self acquired property of

Chinna Subbanna. The evidence of PW-1 is silent whether the proper- ties covered under Ex.B-4 and Ex.B-5 are self acquired properties of their father or said properties are ancestral properties and how her 15 father acquired properties covered under Ex.B-4 and Ex.B-5, whether her father Chinna Subbanna purchased the same or not if purchased the source of amount to purchase the properties covered under Ex.B-4 and Ex.B-5 and it is the evidence of DW-1 that the properties covered under Ex.B-1, Ex.B-3, Ex.B-4 and Ex.B-5 are self acquired properties of

Chinna Subbanna and they are exclusive properties of Chinna Sub- banna and her father Chinna Subbanna constructed plaint schedule house with the exclusive amount earned by him through money lend- ing business and he had been in exclusive possession and enjoyment of plaint schedule house and after death of their mother she looked after her father Chinna Subbanna till his death and out of love and af- fection her father i.e., Chinna Subbanna voluntarily executed re- gistered will dt:18-12-2003 i.e., Ex.B-1 while he is in sound and dispos- ing state of mind, on 08-06-2007 her father died and Ex.B-1 became final testament and she became absolute and exclusive owner of suit schedule house and she is in exclusive possession and enjoyment of plaint schedule house as absolute owner by paying electrical consump- tion charges. As already discussed above PW-1 in her evidence cat- egorically admitted that her father was doing money lending business and he also filed civil suits and after the death of their father she along with plaintiff No.2 and defendant recovered the amount from the debt- ors equally. To support evidence of DW-1, DW-1 also got examined

DW-2 who is none other than son of Late Govinda who is one of the at- testors of Ex.B-1, DW-2 stated that at the request of Chinna Subbanna his father i.e., Govinda subscribed his signature on Ex.B-1 as one of the attestors and he also identified the signature of his father i.e., Late

Govinda on Ex.B-1. During cross examination of DW-2, nothing is eli- cited from DW-2 to disprove his evidence except putting suggestions 16 to DW-2 that the signatures contained on Ex.B-1 as one of the attest- ors is not that of signatures of father of DW-2 which is denied by him. It is therefore, the evidence of DW-1 coupled with evidence of DW-2,

Ex.B-1, Ex.B-3, Ex.B-4 and Ex.B-5 and admission of PW-1 and PW-2 that

Chinna Subbanna executed registered will dt:18-12-2003 Ex.B-1 in fa- vour of defendant in respect of plaint schedule house and from the ad- mission of PW-2 that and since the date of death of Chinna Subbanna defendant is in exclusive possession and enjoyment of plaint schedule house by paying electricity consumption charges. It is categorically proved that Chinna Subbanna executed Ex.B-1 in favour of DW-1 in re- spect of plaint schedule house and Chinna Subbanna also executed

Ex.B-3, Ex.B-4 and Ex.B-5 in favour of PW-1, plaintiff No.2 and defend- ant in respect of landed properties and since the date of death of

Chinna Subbanna DW-1 is in exclusive possession and enjoyment of plaint schedule house.

19.However, it is the burden of the plaintiffs to prove that plaint schedule house is joint family property of Chinna Subbanna and plaintiffs and defendant are in joint possession of plaint schedule house and Chinna Subbanna has no exclusive right to execute Ex.B-1 in favour of defendant, except the uncorroborated testimony of PW-1 and PW-2, absolutely there is no either oral or documentary evidence to show that plaint schedule house is ancestral property of plaintiffs and defendant and plaintiffs and defendant are in joint possession and enjoyment of plaint schedule house. Accordingly these two issues 1 and 2 are answered in favour of defendant and against the plaintiffs.

20.ISSUE NO.3: Whether plaintiffs are entitled to 2/3rd share in plaint schedule property?

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In view of findings arrived in issues 1 and 2 and from the evid- ence of PW-1 and PW-2 it is categorically established that DW-1 is staying in plaint schedule house and she is in exclusive possession and enjoyment of plaint schedule house by paying electricity consumption charges and it could be safely concluded that Chinna Subbanna was the absolute owner of plaint schedule house and he bequeathed the plaint schedule house to the defendant under Ex.B-1 and after death of

Chinna Subbanna defendant alone is in joint possession of plaint schedule house, as there is no joint possession and plaintiffs and de- fendant over plaint schedule house and it is exclusive property of de- fendant, plaintiffs may not claim any share in the plaint schedule house and plaintiffs are not entitled to 2/3rd share in plaint schedule house. Accordingly this issue No.3 is answered in favour of defendant and against the plaintiffs.

21.ISSUE NO.4: Whether there is cause of action to the suit?

The plea of the plaintiffs is that plaint schedule house is ances- tral property which fell to the share of their father Chinna Subbanna during partition between Chinna Subbanna and his brother Pedda Sub- banna and Chinna Subbanna died in joint status and they are in joint possession over plaint schedule house. The cause of action is a bundle of facts, the fact that the plaint schedule house is ancestral property of plaintiffs and defendant which was allotted to their father Chinna Sub- banna during partition between Chinna Subbanna and his brother

Pedda Subbanna and till the death of their father Chinna Subbanna plaintiffs and defendant are in joint possession and enjoyment of plaint schedule house and even after the death of Chinna Subbanna plaintiffs 18 and defendant are in joint possession and enjoyment of plaint schedule house is not established by the plaintiffs that plaint schedule house is joint family property of Chinna Subbanna and plaintiffs failed to prove that plaintiffs 1 and 2 and plaintiff No.2 and defendant are in joint pos- session of plaint schedule house it could be safely concluded that there is no cause of action to the suit. Accordingly this issue No.4 is answered in favour of defendant and against the plaintiff.

22.ISSUE NO.5: Whether the suit is bad for non joinder of proper and necessary parties?

It is an admitted fact that both the plaintiffs and defendant that plaintiffs and defendant are the daughters of Chinna Subbanna and

Chinna Subbanna had no male issues except plaintiffs and defendant and wife of Chinna Subbanna predeceased Chinna Subbanna. It is therefore, it could be safely held that except plaintiffs and defendant there are no other legal heirs to Chinna Subbanna and it could be said that the suit is not bad for non joinder of proper necessary parties. Ac- cordingly this issue No.5 is answered in favour of defendant and against the plaintiffs.

23.ISSUE NO.6: Whether the suit is bad for mis joinder of property?

The plea of plaintiff is that plaint schedule house is ancestral property of their father Chinna Subbanna and Chinna Subbanna died in joint status and they are in joint possession over plaint schedule house and the plea of defendant that the suit is bad for mis-joinder of prop- erty. As plaintiffs failed to prove that plaint schedule house is ancestral property of Chinna Subbanna and plaintiffs and defendant are in joint 19 possession of plaint schedule house and defendant categorically estab- lished that there is no joint family property to Chinna Subbanna and plaint schedule house and other properties covered under Ex.B-3 to

Ex.B-5 are self acquired properties of their father Chinna Subbanna and seeking partition of plaint schedule house which is in exclusive possession and enjoyment of defendant it could be said that suit is bad for mis-joinder of properties. Accordingly this issue No.6 is answered.

24.ISSUE NO.7: Whether the Court fee is paid is correct?

As issues 1 to 6 are answered in favour of defendants, the issue

No.7 is also answered in favour of defendant as plaintiff failed to estab- lish that plaint schedule house is Hindu Family Property.

25.ISSUE NO.8: Whether the suit can be decreed as prayed for?

In the result, the suit is dismissed with costs.

Dictated to Stenographer Grade-III, transcribed by him, corrected and

pronounced by me in open Court, this the 3rd day of August, 2015

J

UNIOR CIVIL JUDGE

PENUKONDA

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PLAINTIFFSDEFENDANT

PW-1K.G.Venkatamma DW-Totla Padmavathi 1 PW-2P.AdimurthyDW-G.R.Balakrishna 2

EXHIBITS MARKED FOR

PLAINTIFFSDEFENDANT

Ex.A-Office copy of notice Ex.B-Original Will dt:18- 1dt:20-07-2007112-2003 Ex.A-Reply notice dt:28-07-Ex.B-Death Certificate 22007 issued on behalf of 2 defendant Ex.B-Certified copy of 3sale deed dt:10-05- 2004 20

Ex.B-Certified copy of 4 sale deed dt:10-06- 2004 Ex.B- Original gift deed 5dt:10-06-2004

JCJ

IN THE COURT OF THE JUNIOR CIVIL JUDGE :: PENUKONDA

Present: Smt C.R.Sumalatha, Junior Civil Judge, Penukonda Monday, the 3rd day of August, 2015

O.S.No.67 of 2008

Between:

1. K.G.Venkatamma W/o K.G.Venkatesulu, Age:about 52 years, Hindu, Agriculturist, Venkatareddypalli, Penukonda Mandal

2. Thotla Lakshmidevi W/o T.Anjinappa, Age:about 36 years, Hindu, Sinecure, Lakshmipuram, Hindupur Municipality …Plaintiffs

And

Thotla Padmavathi W/o T.Chalapathi, Age:about 44 years, Hindu, Agriculturist, Venkatareddipalli, Penukonda Mandal … Defendant 21

Suit for partition and to divide the plaint schedule prop - erty into 3 equal shares and allot 2/3rd share of the plaintiffs and deliver such separated share of the plaintiffs through court and for costs of the suit.

Plaint Presented on: 17-03-2008 Plaint numbered on: 18-03-2008 Total market value of the plaint schedule property is Rs.97,940/- 2/3rd share of plaintiff Rs.65,293/-, 3/4th share is Rs.48,969-75/- for court fee pur- pose of Rs.50,000/- and A fixed court fee of Rs.200/- is paid under 34(2) of APCF and SV Act of 1956.

The Cause of action for the suit arose when Chinna Subbanna died in joint status and when the defendant has not come forward for amicable parti- tion and the plaint schedule property is situate within the limits of Ven- katareddipalli, Penukonda Mandalam within the jurisdiction of this Hon’ble Court.

This suit is coming on this day for final hearing before me in the pres- ence of Sri R.Sreekanth Reddy, Advocate for the Plaintiffs and Sri.H.Seshagiri Rao , Advocate for the defendant and this court doth order and decree as fol- lows:-

1. That the suit is be and the same is here by dismissed with costs.

2. That the plaintiffs do also pay to the defendant a sum of Rs.202/- towards the costs of the suit. Given under my hand and the seal of the court this the 3rd day of Au- gust, 2015.

Junior Civil Judge, Penukonda.

Table of Costs Plaintiffs 1 and 2 Defendant Stamp on plaint Rs. 200-00 -- Stamp on vakalat Rs. 2-00 2-00 Process Rs. - -- Writing charges Rs. - -- Typing charges Rs. - -- Advocate Fee Rs. - -- (Fee costs memo not filed other costs not certified)

- - - - - - - - - - - - - - - - - - -

Total: Rs. 202-00 Rs. 2-00

- - - - - - - - - - - - - - - - - - -- - -

SCHEDULE

22

Description of the property situated within RD of Anantapuram and SRD of Penukonda within the limits of Venkatareddipalli. House with door No.2/47 within the following boundaries: East : Sandu (Lane) West : House of Venkatesu, North : House of Nagappa, South : Kothacheruvu Road.

J.C.J

1

IN THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE,

PENUKONDA

Present : Smt C.R. Sumalatha

Judicial First Class Magistrate, Penukonda

Wednesday, the 12 th day of November, 2014

C.C.No.63 of 2008

Between: State represented by the Sub Inspector of Police, Somandepalli Police Station

...Complainant

Vs

N.V.Venkatesulu S/o Narayanappa, Age:38 years, Sheshapuram Village, Roddam Mandal, Driver of RTC Bus bearing No.AP 11 Z 1772, Hindupur Depot …Accused

This case is coming on 07-11-2014 for final hearing before me in the presence of the learned APP for the State, Sri D.Nagaraju, Advocate

for Accused and the matter having stood over for consideration till this

day, this court delivered the following :

J U D G M E N T

1.The Sub Inspector of Police, Somandepalli Police Station filed charge sheet against the accused for the offences under Secs.337 and 338 of IPC in Cr.No.63 of 2008 of Somandepalli Police Station.

2.The brief accusation against the accused is that on 03-01- 2008 at about 5:00 AM PW-1 T.Ayub Khan and PW-7 S.A.Jabbar loaded passengers in their Bus bearing No.AP 02 V 5037 and left Dharmavaram to go to Bangalore, on regular service enrooted they left Bramhanapalli in

Somandepalli Mandal at about 6:30 AM. In the meantime the accused

N.V.Venkatesulu being the driver of APSRTC Bus bearing No.AP 11 Z 1772 drove it in a rash and negligent manner with a high speed without blowing horn came from Hindupur side and dashed against Bus bearing

No.AP 02 V 5037. Due to which front portion of Bus completely damaged,

PW-1 sustained fracture injuries to his right hand and right leg. PW-7 who is Bus Conductor and PW-2 K.Rangappa, LW-3 S.Peerubee, PW-3 2

G.Sreenivasulu, PW-6 M.Ravichandra, PW-4 M.Krishnamurthy, PW-5

K.Kristappa, PW-8 K.Gangamma and LW-9 K.Venkata Kondappa, PW-9

M.Vijayalakshmi, PW-13 M.Surendra, PW-10 Smt Faizunnisa, PW-11

Kristappa, PW-12 S.Mazid Sahib, LW-16 Eswaramma and LW-17

T.Lakshmapa occupants of Bus and also some passengers of RTC Bus sustained injuries. On receipt of information about the accident PW-17

M.Ganganna, Sub Inspector of Police, Somandepalli Police Station rushed to the Government Hospital, Hindupur and recorded the statement of PW-1. On statement of PW-1, PW-17 registered a case in Cr.No.1 of 2008 for the offences under Secs.337 and 338 of IPC and investigated into. During the course of investigation, PW-17 visited Government

Hospital, Hindupur and secured the injured persons, examined them and recorded their statements, he also visited the scene of offence and secured PW-14, examined him and recorded his statement. PW-17 sent a requisition to PW-16 G.V.Prasad, Motor Vehicle Inspector, Hindupur to inspect the crime vehicle APSRTC Bus and subsequently the accused was arrested on 25-01-2008 and sent for judicial remand. PW-15 Dr.

T.S.Diwakar, Civil Assistant Surgeon, Government Hospital, Hindupur who rendered treatment to the injured persons issued wound certificates opining that the injuries sustained to PW-1, LW-4, PW-6, PW-4, PW-5 and

PW-8, PW-9 and PW-10 are simple and grievous in nature. LW-19 Dr.

G.Gangadhar Settee, Civil Assistant Surgeon, Government Hospital,

Penukonda who rendered treatment to LW-17 issued wound certificate opining that the injuries sustained by LW-17 are simple in nature. PW-16 who inspected the crime vehicle issued motor vehicle inspection report opining that the accident was not due to mechanical defect. After receipt of wound certificates and Motor Vehicle Inspection report and after 3 completion of investigation PW-17 laid charge sheet in this case for the offences punishable under Secs.337 and 338 of IPC. Hence the accusation.

3.Cognizance was taken for the offences under Secs.337 and 338 of IPC against accused. On appearance of accused, copies of documents were supplied to him as contemplated under Sec.207 Cr.P.C.,

4.When accused was examined under Sec.251 Cr.P.C., for the offences under Secs.337 and 338 of IPC, accused pleaded not guilty for the said offence and claimed to be tried.

5.In support of prosecution case, prosecution examined PW-1 to PW-17 and got marked Ex.P-1 to Ex.P-28.

6.After closure of prosecution evidence, accused is examined under Sec.313 of Cr.P.C., for the incriminating material available against him, he denied the same and reported no defence evidence, accordingly defence evidence is closed.

7.Heard arguments of learned Assistant Public Prosecutor and the learned counsel for accused.

8.Now the point for determination is whether the prosecution is able to prove the case against accused for the offences under Secs.337 and 338 of IPC beyond reasonable doubt?

9.P O I N T:To prove the case of prosecution, the prosecution got examined PW-1 to PW-17 and got marked Ex.P-1 to Ex.P-28 and among them PW-1 is the de facto complainant cum injured victim, PW-2 to

PW-14 are injured victims, PW-15 is medical officer, PW-16 is motor vehicle inspector and PW-17 is the investigating officer.

10.PW-1 T.Ayub Khan who is cited as de facto complainant cum injured victim in this case, in his evidence deposed that on 03-01- 2008 while he as the driver of RPGT Private Bus while going from 4

Dharmavaram to Bangalore and when reached near Guddampalli of

Somandepalli Village one RTC Bus coming in opposite direction driven by the accused in a rash and negligent manner collided with their Bus due to that their Bus was damaged and he sustained fracture injuries and some of the passengers also sustained injuries. Later, he gave report Ex.P-1 to the police and he was admitted at Vijayamalya Hospital, Bangalore for 3 months.

11.Prosecution also examined PW-2 K.Rangappa who is cited as one of the injured victims in this case he stated that nearly five to six years back he boarded crime vehicle RTC Bus at Hindupur to go to

Dharmavaram and when the Bus reached near Bapanapalli Village one

RPGT Bus which came in opposite direction collided with their Bus due to that he sustained fracture injuries over his left thigh and left leg and some of the co-passengers also sustained injuries and he was shifted to

Government Hospital. PW-2 further stated that he cannot say which Bus caused the accident as he was sitting in the back side of the Bus.

12.Prosecution also examined PW-3 G.Sreenivasulu who is also cited as one of the injured victims in this case he stated that in the year 2008 he boarded RPGT Bus at Dharmavaram at about 5:00 AM to go to Bangalore, when the Bus reached Mamillapalli/Chakarlapalli at about 6:10 AM their Bus met with an accident due to that he sustained fracture to his right knee.

13.Prosecution also examined PW-4 M.Krishnamurthy and

PW-5 K.Kristappa who are cited as injured victims in this case, PW-4 and

PW-5 stated that on 03-01-2008 at about 5:00 PM they boarded RPGT

Bus at Dharmavaram to go to Bangalore and when they reached

Bramhanapalli Village one RTC Bus coming from Hindupur dashed their 5

Bus due to which they sustained injuries and were shifted to Government

Hospital.

14.Prosecution also examined PW-6 M.Ravichandra who is also cited as one of the injured victims in this case, PW-6 stated that on one day in the month of January, 2008 he boarded RTC Bus at Hindupur at about 6:00 AM and when the Bus reached Chakarlapalli Village one

RPGT Bus coming in opposite direction dashed each other due to that he sustained injury and some of the passengers also sustained injuries and were shifted to Government Hospital, Hindupur.

15.Prosecution also examined PW-7 S.A.Jabbar who is

Conductor of RPGT Bus, he stated that in the month of January, 2008 he as Conductor and PW-1 as the driver of RPGT Bus started at

Dharmavaram at about 5:00 AM to go to Bangalore with passengers, after passing Bramhanapalli Village he heard huge sound of collision of their

Bus and he does not know due to whose fault the accident occurred as he was perusing the accounts of tickets, in the said accident he sustained injuries.

16.Prosecution also examined PW-8 K.Gangamma who is also cited as one of the injured victims in this case, PW-8 stated that nearly four years back on one day at about 6:00 AM she and her husband boarded APSRTC Bus at Hindupur to go to Dharmavaram and when their

Bus reached Bramhanapalli, she heard huge sound due to collision with

Bus coming in opposite direction due to that she and other passengers sustained injuries and were shifted to Government Hospital, Hindupur.

17.Prosecution also examined PW-9 M.Vijayalakshmi who is also cited as one of the injured victims in this case, PW-9 stated that on 03-01-2008 at about 5:30 AM she boarded RTC Bus to go to 6

Ananthapuramu and when their Bus reached near Bramhanapalli Village she heard big sound and found that the accident took place due to collision of two Buses, in the said accident she and some of the passengers sustained injuries and were shifted to Government Hospital,

Hindupur.

18.Prosecution also examined PW-10 Smt Faizunnisa who is also cited as one of the injured victims in this case, PW-10 stated that on 03-01-2008 at about 6:30 AM she boarded RTC Bus to go to Puttaparthi and when their Bus crossed Chakarlapalli Village a collision took place between RTC Bus and RPGT Bus but he does not know how it was occurred, in the said accident he and other passengers sustained injuries and were shifted to Government Hospital, Hindupur.

19.Prosecution also examined PW-11 Kristappa who is also cited as one of the injured victims in this case, PW-11 stated that nearly four years back on one day at about 7:30 AM he boarded APSRTC Bus at

Hindupur to go to Penukonda, when their Bus reached Bramhanapalli their

Bus fell down but, he does not know how it was occurred due to that he sustained injuries and some other passengers also sustained injuries and were shifted to Government Hospital, Hindupur.

20.Prosecution also examined PW-12 S.Mazid Sahib who is also cited as one of the injured victims in this case, PW-12 stated that nearly five years back at about 6:00 AM he boarded APSRTC Bus at

Hindupur to go to Puttaparthi and when the Bus reached in between

Chakarlapalli and Bramhanapalli the driver of RTC Bus drove it at high speed and dashed one RPGT Bus coming in opposite direction due to that he along with some of the passengers sustained injuries and were shifted to Government Hospital, Hindupur.

7

21.Prosecution also examined PW-13 M.Surendra who is also cited as one of the injured victims in this case, PW-13 stated that on 03-01-2008 at about 5:30 AM he boarded RPGT Bus at Dharmavaram to go to Bangalore, after crossing Penukonda and reached near

Somandepalli one RTC Bus coming at high speed dashed their Bus which was going on the left side of the road due to that he and some other passengers sustained injuries and were shifted to Government Hospital,

Penukonda.

22.Prosecution also examined PW-14 T.Lakshmappa who is also cited as one of the injured victims in this case, PW-14 stated that on 03-01-2008 at about 5:00 AM he boarded RPGT Bus at Dharamavaram to go to Bangalore and when their Bus reached near Railway Gate of

Chakarlapalli one RTC Bus coming in opposite direction at high speed dashed their Bus as a result he and some other passengers sustained injuries and were shifted to Government Hospital, Penukonda.

23.Prosecution also examined PW-15 Dr. T.S.Diwakar who is medical officer in this case, PW-15 stated that on 03-01-2008 he examined PW-1 to PW-14 and LW-16 and also accused who sustained injuries in accident and age of injuries sustained by PW-1 to PW-14,

LW-16 and accused is 1 to 3 hours prior to his examination which is not denied by the accused during cross examination of medical officer PW-15.

24.Prosecution also examined PW-16 G.V.Prasad who is cited as motor vehicle inspector, he stated that on 05-01-2008 on receipt of requisition from Station House Officer, Somandepalli Police Station he inspected the crime vehicle RTC Bus and found that front wind screen glass, wiper, grill, head lights, bumper, radiator, fan, front body, right side 8 front seat damaged, steering system jammed due to accident and got marked Ex.P-26 motor vehicle inspection report.

25.It is therefore, from the evidence of PW-1 to PW-14 coupled with evidence of PW-15 and PW-16 it is categorically established that on 03-01-2014 at about 6:30 AM RPGT Bus proceeding from Dharmavaram to Bangalore with passengers met with an accident near Bramhanapalli, the crime vehicle RTC Bus which was proceeding from Hindupur towards

Puttaparthi involved in the said accident, PW-1 and PW-7 who are Driver and Conductor of RPGT Bus sustained injuries and PW-3 to PW-5, PW-13 and PW-14 who were travelling in RPGT Bus also sustained injuries and

PW-2, PW-6 and PW-8 to PW-12 who were travelling in crime vehicle

RTC Bus also sustained injuries, in the said accident accused also sustained injuries and was examined by PW-15 along with PW-1 to

PW-14 on 03-01-2014 at about 5:00 PM i.e., on the date of accident from

Dharmavaram to Bangalore.

26.Now the point for consideration is whether accused is driving the crime vehicle at the time of accident or not? If so, whether accident occurred due to rash and negligent driving of accused or not?

27.PW-1 who is driver of RPGT Bus in his evidence categorically stated that one RTC Bus coming in opposite direction driven by the accused in a rash and negligent manner collided with their Bus and due to that their Bus was damaged and he and other passengers sustained injuries.

28.The motor vehicle inspector who inspected the crime vehicle who gave evidence as PW-16 got marked Ex.P-26 Motor vehicle inspection report, in Ex.P-26 in column No.16(a), 16(b) and 17 the particulars of the driver and driving license are also mentioned, the name 9 of accused is mentioned as driver and his driving license number is

AP1028542007ALP/HindupurV.16.2.2010, which is not denied by the accused during cross examination of PW-16, unless the accused was the driver of crime vehicle at the time of accident, his particulars and the driving license particulars would not be available to the motor vehicle inspector when he inspected the crime vehicle on 05-01-2008 i.e., 2 days after the accident. Further the evidence of investigating officer goes to show that he arrested the accused on 23-01-2008 at 7:30 PM at

Somandepalli Police Station. Therefore, on 05-01-2008 the motor vehicle inspector had no opportunity to know the particulars of the accused except through the documents available in the vehicle and further the report of motor vehicle inspector and contents of motor vehicle inspection report are not denied by the accused during cross examination of PW-16.

Further the evidence of PW-15 medical officer also categorically goes to show that accused also sustained injuries along with PW-1 to PW-14 which is not denied by the accused. It is therefore, considering all the above aspects it could be safely concluded that accused is the driver of crime vehicle at the time of accident.

29.Coming to the aspect of rash and negligent driving, admittedly both the vehicles are proceeding in opposite direction to each other, RPGT Bus which is driven by PW-1 in which PW-3 to PW-5, PW-7,

PW-13 and PW-14 are travelling is proceeding from Dharmavaram towards Bangalore and RTC Bus in which PW-2, PW-6, PW-8 to PW-12 are travelling is proceeding from Hindupur towards Puttaparthi, the rough sketch goes to show that the exact scene of offence is situated on the extreme right side of the road leading from Hindupur towards Penukonda which is on the extreme left side of the road leading from Dharmavaram 10 towards Bangalore which is not denied by the accused during cross examination of PW-16 investigating officer. It is therefore, it is not disputed by the accused that the exact scene of offence is on the extreme right side of the road leading from Hindupur to Penukonda, the accused who is proceeding from Hindupur to Penukonda has to proceed on the left side of the road whereas the exact scene of offence is on the extreme right side of the road which clearly indicates that the crime vehicle is not proceeding on the left side of the road towards the direction in which it is proceeding and it is clear negligence on the part of the accused. If the accused has proceeded on the left side of the road at moderate speed and he has taken proper care and caution, certainly the accident might have not have occurred and accused proceeding on the extreme right side of the road instead of proceeding on the left side of the road in the direction in which he is proceeding amounts to grave negligence on the part of accused.

Further on close reading of evidence of PW-12 to PW-14, PW-12 stated that when the RTC Bus reached in between Chakarlapalli and

Bramhanapalli the driver of RTC Bus drove it at high speed and dashed one RPGT Bus coming in opposite direction due to that he along with some of the passengers sustained injuries and were shifted to

Government Hospital, Hindupur, PW-13 stated that while he was proceeding in RPGT Bus one RTC Bus coming at high speed dashed their

Bus which was going on the left side of the road due to that he and some other passengers sustained injuries and were shifted to Government

Hospital, Penukonda and PW-14 also stated that while he was proceeding in RPGT Bus one RTC Bus coming in opposite direction at high speed dashed their Bus as a result he and some other passengers sustained injuries and were shifted to Government Hospital, Penukonda.Further 11

PW-16 motor vehicle inspector stated that he found damages viz., front wind screen glass, wiper, grill, head lights, bumper, radiator, fan, front body, right side front seat damaged, steering system jammed due to accident. Unless the hit of the vehicle was with such force the above said damages would not have been caused to the crime vehicle, and if the accused was driving the crime vehicle at moderate speed with proper care and caution certainly he would have avoided the accident.

30.It is therefore, it is very clear that the crime vehicle was proceeding at high speed. It is therefore it could be safely held that the accident occurred due to rash and negligent driving of accused.

31.In the result, the accused is found guilty for the offences punishable under Secs.337 and 338 of IPC and accused is convicted under Sec.255(2) Cr.P.C for the said offences.

JUDICIAL FIRST CLASS MAGISTRATE

PENUKONDA

32.When questioned the accused about the quantum of sentence to be imposed on him, he stated that he is having two school going children studying 8th and 9th Class who are aged about 12 and 13 years respectively and he is also having oldaged parents who are suffering with oldage ailments and he also underwent an operation about four years back and he is the sole breadwinner of his family and if he went behind bars his family will suffer lot and will be on streets and pleaded mercy to take a lenient view considering it as his first offence. Taking into consideration of the plea of the accused and gravity of the offence, facts and circumstances of the case and nature of injuries this Court took a lenient view in imposing fine according to the nature of offence and case facts.

12

33.In the result, accused sentenced to pay fine of Rs.1,000/- for the offence under Sec.338 of IPC in default simple imprisonment for a period of one month and further he is sentenced to pay fine of Rs.500/- for the offence under Sec.337 of IPC in default simple imprisonment for a period of 15 days. The bail bonds of the accused if any shall stands cancelled after expiry of appeal time. As there is no property in this case no specific property order is passed.

Partly typed to my dictation and party dictated to Stenographer Grade III, transcribed by him, corrected and pronounced by me in the Open Court on this the 12 th November, 2014

JUDICIAL FIRST CLASS MAGISTRATE

PENUKONDA

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTION DEFENCE

PW-1T.Ayub Khan----- - PW-2K.Rangappa PW-3G.Sreenivasulu PW-4M.Krishnamurthy PW-5K.Kristappa PW-6M.Ravichandra PW-7S.A.Jabbar PW-8K.Gangamma PW-9M.Vijayalakshmi PW-10Smt Faizunnisa PW-11Kristappa PW-12S.Mazid Sahib PW-13M.Surendra PW-14T.Lakshmappa PW-15Dr.T.S.Diwakar,Civil AssistantSurgeon, GovernmentHospital, Hindupur PW-16G.V.Prasad, Motor Vehicle Inspector, Hindupur PW-17M.Ganganna, Sub Inspector of Police, Somandepalli Police Station

EXHIBITS MARKED FOR

PROSECUTION DEFENCE

Ex.P-1Complaint ---- - Ex.P-2Sec.161 of Cr.P.C., statement of 13

PW-6 Ex.P-3Sec.161 of Cr.P.C., statement of PW-7 Ex.P-4Relevant portion of Sec.161 of Cr.P.C., statement of PW-8 Ex.P-5Relevant portion of Sec.161 of Cr.P.C., statement of PW-9 Ex.P-6Relevant portion of Sec.161 of Cr.P.C., statement of PW-10 Ex.P-7Sec.161 of Cr.P.C., statement of PW-11 Ex.P-8 Wound certificates of injured tovictims Ex.P-25 Ex.P-26Motor Vehicle inspection report Ex.P-27FIR Ex.P-28Rough Sketch

MATERIAL OBJECTS MARKED FOR

PROSECUTION

------

JUDICIAL FIRST CLASS MAGISTRATE

PENUKONDA

14

CALENDAR AND JUDGMENT IN C.C.No.63 of 2008 ON THE FILE OF

JUDICIAL FIRST CLASS MAGISTRATE, PENUKONDA

Date of

Offence Complai Apprehen Release Comme Close of Judgment

nt sion d ncemen Trial

of on Bail t

Accused of trial

03-01-0803-01-0825-01-0825-01-0821-06-1212-06-1412-11-14

Calendar and Judgment in C.C.No.63 of 2008 on the file of Judicial First Class Magistrate, Penukonda

Complainant: State represented by the Sub Inspector of Police, Somandepalli Police Station

Crime No.63 of 2008

N.V.Venkatesulu S/o Narayanappa, Age:38 years, Sheshapuram Village, Roddam Mandal, Driver of RTC Bus bearing No.AP 11 Z 1772, Hindupur Depot

Offences: under Secs.337 and 338 of Indian Penal Code

Finding: Found guilty

Sentence :

In the result, accused sentenced to pay fine of Rs.1,000/- for the offence under Sec.338 of IPC in default simple imprisonment for a period of one month and further he is sentenced to pay fine of Rs.500/- for the offence under Sec.337 of IPC in default simple imprisonment for a period of 15 days. The bail bonds of the accused if any shall stands cancelled after expiry of appeal time. As there is no property in this case no specific property order is passed.

JUDICIAL FIRST CLASS MAGISTRATE

PENUKONDA

Copy submitted to the Hon’ble II Addl. District & Sessions Judge, Hindupur 15

1

IN THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE,

PENUKONDA

Present : Smt C.R. Sumalatha

Judicial First Class Magistrate, Penukonda

Tuesday, the 21 st day of October, 2014

C.C.No.251 of 2012

Between: State represented by the Sub Inspector of Police, Kothacheruvu Police Station

...Complainant

Vs

G.Chandra Mohan S/o G.Venkataramudu, Age:31 years, D.No.5/1165, B.C.Colony, Kothacheruvu Village and Mandal, Driver of TATA Indigo Car bearing No.KA 03 D 592 (Caste: Balija, Profession: Driver) …Accused

This case is coming on 17-10-2014 for final hearing before me in the presence of the learned Asst P.P., for the State, Sri L.Viswanath, Advocate for Accused and the matter having stood over for consideration till this day, this court delivered the following :

J U D G M E N T

1.The Sub Inspector of Police, Kothacheruvu Police Station filed charge sheet against the accused for the offences under Secs.337, 338 and 304-A of IPC in Cr.No.76 of 2011 of Kothacheruvu Police Station.

2.The brief accusation against the accused is that on 31-10- 2011 at about 1:45 PM the accident took place at Mylepalli Village,

Kothacheruvu Village, on Kothacheruvu-Dharmavaram road while the accused G.Chandra Mohan being the driver of TATA Indigo Car bearing

No.KA 03 D 592 proceeding from Puttaparthi to Dharmavaram drove it in a rash and negligent manner at high speed and dashed against Ape Piogo

Auto bearing No.AP 02 W 7161 which was proceeding from Ontikonda to

Kothacheruvu, in the meantime rider of motor bike (Discover 135, AP 04 P 1378 proceeding on the rear side of the said Auto hit to the Auto, resulting which the Ape Auto, turned turtle, deceased No.1 Talari Narayana, 2 deceased No.2 Rampuram Pedda Ganganna, deceased No.3 Erikala

Swathi and deceased No.4 Yerikala Varalakshmi who were travelling in the said Auto sustained injuries and died while undergoing treatment at

Government Hospital, Dharmavaram on 31-10-2011 at about 3:50 PM, in the said accidence, PW-9 Talari Anjamma and PW-10 Nallaobannagari

Bhasker Reddy sustained injuries and immediately they were shifted to

Dharmavaram for treatment, PW-8 Nallapareddigari Sreenivasa Reddy and LW-16 Yerikala Gujjala Venkatesu who are coming on the rear side of the Auto on motor cycle narrowly escaped from injuries and witnessed the occurrence of offence. On the complaint given by PW-1 Chakali Manohar,

LW-35 A.Ismail, Sub Inspector of Police, Kothacheruvu Police Station registered a case in Cr.No.76 of 2011 for the offences under Secs.337, 338 and 304-A of IPC and investigated into. During the course of investigation, PW-14 B.Venugopal, Circle Inspector of Police, Puttaparthi

Rural Circle Police Station received express FIR from LW-35 and took up investigation and also instructed LW-33 P.Nagaraju, Head Constable,

Kothacheruvu Police Station, LW-34 M.Rajesh, Sub Inspector of Police,

Bukkapatnam Police Station and LW-35 to conduct inquest over the dead bodies of deceased 2, 3 and 5. PW-14 examined PW-1 and sent him to

Government Hospital, Penukonda for treatment, and conducted inquest over the dead body of deceased No.1 in the presence of LW-19

Thummalakunta Alam Basha, LW-20 Katika Varaprasad and PW-11

Neeruganti Narayanaswamy and during the time of inquest, he examined

PW-2 Talari Lakshminarasimhaamma, PW-3 Talari Babu, LW-4 Talari

Narayana Swamy and LW-5 Talari Shashikala and recorded their statements, and examined the scene of offence and got photographed of the scene of offence and seized the crime vehicle TATA Indigo Car PW-14 3 also examined PW-8, LW-16, PW-9 and PW-10 and recorded their statements. PW-14 perused the inquest reports of deceased 2, 3 and 4 which was conducted by LW-33 over dead body of deceased No.3, LW-34 over dead body of deceased No.4 and LW-35 over dead body of deceased No.2. PW-14 also examined the witnesses who are examined by LW-33 to LW-35 and found that all the witnesses revealed the same facts which were recorded by LW-33 to LW-35 at the time of inquest.

LW-33 held inquest over the dead body of deceased No.3 in the presence of LW-25 Nagireddigari Raghurami Reddy, PW-13 Erikala Sreeramulu and

LW-27 Erikala Chalapathi and examined PW-5 Erikala Nagaraju, LW-11

Erikala Sathyanna, LW-12 Erikala Sathish and PW-6 Erikala Muthyalappa and recorded their statements at the time of inquest of deceased No.3.

LW-34 held inquest over the dead body of deceased No.4 in the presence of LW-25, PW-13 and LW-27 and examined PW-5, LW-11 and LW-13 and recorded their statements at the time of inquest of deceased No.4. LW-35 held inquest over the dead body of deceased No.2 in the presence of

LW-22 Dongala Chenna Reddy, PW-12 Mondi Pothanna and LW-24

Chedipothula Akkulappa and examined PW-4 Rampuram Shesaiah, LW-7

Rampuram Anand, LW-8 Rampuram Anjamma and LW-9 Rampuram

Chinna Ganganna and recorded their statements at the time of inquest of deceased No.2. LW-32 G.V.Madhava Reddy, Motor Vehicle Inspector,

Regional Transport Office, Hindupur who inspected the crime vehicle issued motor vehicle inspection report opining that the accident was occurred not due to any mechanical defects of the crime vehicle. LW-28

Dr. S.Babjan, Civil Assistant Surgeon, Community Health Centre,

Penukonda who conducted autopsy over the dead body of deceased No.1 issue post mortem certificate opining that the deceased would appear to 4 have been died due to cranio cerebral injury due to head injury, prior to 16 to 24 hours for post mortem examination and also treated PW-1 and issued wound certificate opining that all the injuries are simple in nature and are due to impact of hard and blunt object. LW-29 Dr. B.Ram Naik,

Civil Assistant Surgeon, Community Health Centre, Penukonda who conducted autopsy over the dead body of deceased No.2 issued post mortem certificate of deceased No.2 opining that the deceased No.2 would appear to have been died due to hypovolenic shock cerebral hemorrhages due to multiple bone fractures, prior to 18 to 24 hours post mortem examination, and also conducted autopsy over the dead body of deceased No.3 and issued post mortem certificate of deceased No.3 opining that deceased No.3 would have appear to have been died due to hypovolenic shock cerebral hemorrhages due to head injury, prior to 18 to 24 hours prior to post mortem examination. LW-30 Dr. A.L.Naseer Khan,

Civil Assistant Surgeon, Community Health Centre, Dharmavaram who conducted autopsy over the dead body of deceased No.4 issued post mortem certificate of deceased No.4 opining that the deceased would appear to have been died due to hypovolenic shock due to multiple injuries due to road traffic accident, prior to 16 to 20 hours post mortem examination. LW-31 Dr. B.Lavanya, Civil Assistant Surgeon, Community

Health Centre, Dharmavaram who treated PW-9 and PW-10 issued wound certificate of PW-9 and PW-10 opining that injuries caused to

PW-9 are grievous in nature and the injuries caused to PW-10 are simple in nature. On 12-11-2011 PW-14 arrested the accused and sent for remand to the judicial custody. After receipt of wound certificates of PW-9 and PW-10, Post Mortem Certificates of deceased 1 to 4 and Motor

Vehicle Inspection report and after completion of investigation PW-14 5

B.Venugopal, Circle Inspector of Police, Puttaparthi Rural Circle Police

Station laid charge sheet in this case against the accused for the offences punishable under Secs.337, 338 and 304-A IPC. Hence the accusation.

3.Cognizance was taken for the offences under Secs.337, 338 and 304-A of IPC against accused. On appearance of accused, copies of documents were supplied to him as contemplated under Sec.207 Cr.P.C.,

4.When accused was examined under Sec.251 Cr.P.C., for the offences under Secs.337, 338 and 304-A of IPC, accused pleaded not guilty for the said offence and claimed to be tried.

5.In support of prosecution case, prosecution examined PW-1 to PW-14 and got marked Ex.P-1 to Ex.P-10.

6.After closure of prosecution evidence, accused is examined under Sec.313 of Cr.P.C., for the incriminating material available against him, he denied the same and reported no defence evidence, accordingly defence evidence is closed.

7.Heard arguments of learned Assistant Public Prosecutor and the learned counsel for accused.

8.Now the point for determination is whether the prosecution is able to prove the case against accused for the offences under Secs.337, 338 and 304-A of IPC beyond reasonable doubt?

9.P O I N T:To prove the case of prosecution, the prosecution got examined PW-1 to PW-14 and got marked Ex.P-1 to Ex.P-10 and among them PW-1 is the de facto complainant .cum injured victim, PW-2 to PW-6 are circumstantial witnesses, PW-7 is the owner of crime vehicle,

PW-8 to PW-10 are injured victims, PW-11 to PW-13 are inquest mediators for the inquest of deceased 1 to 4 respectively and PW-14 is the investigating officer.

6

10.PW-1 Chakali Manohar who is cited as de fact complainant cum injured victim in this case in his evidence deposed that he is the driver cum owner of Auto bearing No.AP 02 W 7161, on 31-12-2011 at about 1:45 PM while he was transporting passengers deceased 1 to 4 and

PW-10 from Venkatampalli to Kothacheruvu and when reached the scene of offence and proceeding on the left side of the road at that time the crime vehicle which came in opposite direction and its extreme right side dashed his Auto as a result his Auto turned turtle, in the said accident he sustained injuries over his right thigh, right foot and on right side of face, deceased 2, 3 and 4 died instantaneously, deceased No.1 and PW-10 sustained injuries and they were shifted to Government Hospital,

Kothacheruvu, there police examined him and recorded his statement.

11.PW-2 Talari Lakshminarasimhamma who is cited as circumstantial witness who is none other than wife of deceased No.1 in her evidence deposed that nearly three months back at about 2:00 PM she received information over phone that her husband i.e., deceased No.1 met with an accident and died due to injuries, immediately she along with

PW-3 and LW-4 went to the scene of offence and found the dead body of deceased No.1 and three other dead bodies and on enquiry she came to know that one Car which was proceeding from Dharmavaram to

Kothacheruvu dashed the Auto from its rear side and accident occurred due to negligence of Car Driver.

12.PW-3 Talari Babu who is also cited as one of the circumstantial witnesses who is none other than son of deceased No.1 in his evidence deposed that on 31-11-2012 deceased No.1 met with an accident on Dharmavaram road while he was proceeding in an Auto and on information about the accident he along with PW-2, LW-4 and LW-5 7 went to the scene of offence and found the dead body of deceased No.1 and other three dead bodies and on enquiry he came to know that one

Car which came in opposite direction dashed the Auto which was proceeding on the left side of the road.

13.PW-2 and PW-3 are only circumstantial witnesses who came to the scene of offence on information about the accident, according to

PW-2 on enquiry she came to know that one Car which was proceeding from Dharmavaram to Kothacheruvu dashed the Auto from its rear side and accident occurred due to negligence of Car Driver whereas according to PW-3 on enquiry he came to know that one Car which came in opposite direction dashed the Auto which was proceeding on the left side of the road. It is therefore, it creates doubt whether Car dashed the Auto from its rear side or from opposite direction and further the evidence of PW-2 and

PW-3 is silent whether they found the driver of the Car at the scene of offence or not and PW-2 and PW-3 never identified the accused in the public Court as the driver of the crime vehicle responsible for the accident and for causing death of deceased 1 to 4 and for causing injuries to PW-9 and PW-10. Therefore, much credence should not be given to the evidence of PW-2 and PW-3 who are only hearsay witnesses and not direct eye witnesses for the occurrence of accident.

14.PW-4 Rampuram Shesaiah who is also cited as one of the circumstantial witnesses who is none other than son of deceased No.2 also stated that nearly three years back deceased No.2 met with an accident near Kothacheruvu and on information he rushed to the

Government Hospital, Penukonda.

15.PW-5 Erikala Nagaraju who is also cited as one of the circumstantial witnesses who is none other than father of deceased No.3 8 also stated that nearly three years back deceased No.3 died due to injuries sustained in a road accident while proceeding in an Auto on information immediately he went to the scene of offence and found dead body of deceased No.3.

16.Prosecution also examined PW-6 Erikala Muthyalappa who is also cited as one of the circumstantial witnesses who is none other than father of deceased No.4 and grand-father of deceased No.3 also stated that nearly three years back deceased 3 and 4 died due to injuries sustained in a road accident and on information he went to Dharmavaram and found dead bodies of deceased 3 and 4.

17.Prosecution also examined PW-7 Ediga Ramanjineyulu who is cited as the owner of the crime vehicle, PW-7 in his evidence categorically admitted that he is the owner of the crime vehicle and in the year 2011 his Car met with an accident near Mylepalli and on information about the accident through the accused over phone he rushed to the scene of offence and found his damaged Car and also Auto which involved in the accident. During the cross-examination of PW-7 no suggestion is put to PW-7 by the counsel for the accused denying the ownership of PW-7 over the crime vehicle and accused informing about the accident to him.

18.Therefore, it could be safely held that the crime vehicle belongs to PW-7 and crime vehicle involved in the accident took place near Mylepalli in the year 2011.

19.Prosecution also examined PW-8 Nallapareddigari

Sreenivasa Reddy who is cited as one of the injured victims, PW-8 deposed that on 31-10-2011 at about 2:00 PM while he along with LW-16 were proceeding on a motor cycle and when reached the scene of offence 9 an Auto proceeding ahead of them met with an accident due to that his motor cycle dashed the Auto and as a result he and LW-16 sustained injuries and were shifted to Government Hospital, Kothacheruvu.

20.Prosecution also examined PW-9 Talari Anjinamma and

PW-10 Nallaobannagari Bhasker Reddy who are also cited as injured victims, PW-9 stated that nearly four years back while she was proceeding to Puttparthi from Prasannayapeta in an Auto and when reached Mylepalli cross one Car which came and dashed their Auto due to that their Auto turned turtle, in the said accident she and three other passengers sustained injuries and were shifted to Government Hospital,

Dharmavaram.

21.PW-10 stated that in the year 2011 while he along with other passengers were proceeding in an Auto and reached Mylepalli cross road one Car dashed their Auto as a result their Auto turned turtle and she and other passengers sustained injuries and four passengers succumbed to injuries.

22.ProsecutionalsoexaminedPW-11Neeruganti

Narayanswamy, PW-12 Mondi Pothanna and PW-13 Erikala Sreeramulu who are cited as inquest mediators for the inquest of deceased 1 to 4 respectively. PW-11 stated in his evidence that in his presence and in the presence of LW-19 and LW-20, police held inquest over the dead body of deceased No.1 and prepared inquest report Ex.P-2 duly attested by him,

LW-19 and LW-20.

23.PW-12 Mondi Pothanna stated in his evidence that in his presence and in the presence of LW-22 and LW-24, police held inquest over the dead body of deceased No.2 and prepared inquest report Ex.P-3 duly attested by him, LW-22 and LW-24.

10

24.PW-13 Erikala Sreeramulu stated in his evidence that in his presence and in the presence of LW-25 and LW-27, police held inquest over the dead bodies of deceased 3 and 4 and prepared inquest report

Ex.P-4 duly attested by him, LW-25 and LW-27.

25.It is therefore from the evidence of PW-1 to PW-13 it is categorically established that on 31-10-2011 at about 1:45 PM, PW-1,

PW-8, PW-9, PW-10 and deceased 1 to 4 met with an accident near

Milepalli cross while PW-1, PW-9 and PW-10 and deceased 1 to 4 were proceeding in an Auto driven by PW-1 and PW-8 and LW-16 proceeding on a motor cycle on the rear of said Auto, in the said accident PW-1,

PW-8, PW-9 and PW-10 sustained injuries and deceased 1 to 4 died due to injuries, in the said accident the crime vehicle Car involved.

26.Now the point for consideration is whether the accused is driver of crime vehicle or not? If so, whether accident occurred due to rash and negligent driving of accused?

27.PW-1 who is cited as de facto complainant cum injured victim in this case in his evidence stated that immediately after accident he lost conscious and regained conscious 15 minutes later, the evidence of

PW-1 is silent whether he saw the driver at the scene of offence or not and whether the accused is driving the crime vehicle at the time of the accident or not.

28.Coming to the evidence of PW-2 and PW-3, PW-2 and PW-3 are only circumstantial witnesses who came to the scene of offence on information about the accident and their evidence is silent whether they found the driver of the crime vehicle at the scene of offence or not.

29.PW-4, PW-5 and PW-6 who are also cited as circumstantial witnesses in their evidence stated that on information about the accident 11 they rushed to the hospital and found the dead bodies of deceased 1 to 4 respectively. Therefore, there is no chance for PW-4 to PW-6 to see the driver of crime vehicle to identify him.

30.Coming to the evidence of PW-7 who is cited as owner of the crime vehicle, PW-7 stated that through the accused he came to know about the accident over phone and the evidence of PW-7 is silent as to who is the driver of the crime vehicle at the time of the accident and whether the accused is working as driver under him or not and whether the accused is driving the crime vehicle at the time of the accident or not.

31.PW-8 to PW-10 who are injured victims in their evidence categorically stated that they did not observe the driver of the crime vehicle involved in the accident and they did not identify the accused in the public Court as the driver of crime vehicle. Therefore, no prosecution witnesses identified the accused in the public Court as the driver of crime vehicle responsible for accident.

32.Coming to the evidence of PW-14 who is investigating officer in this case, PW-14 stated that on 10-11-2011 he arrested the accused and sent him for remand, the evidence of PW-14 is silent as to how he confirmed the accused as the driver of the crime vehicle at the time of the accident. There is no explanation from the investigating officer as to why he failed to seize the driving license of the accused at the time when he arrested the accused. Except the evidence of PW-7 that he came to know about the accident through the accused over phone no prosecution witnesses identified the accused as driver of the crime vehicle at the time of accident.

33.It is therefore basing on sole evidence of PW-7 that he came to know about the accident through the accused alone is not sufficient to 12 believe that the accused is driving the crime vehicle at the time of the accident unless corroborated with the evidence of independent eye witnesses.

34.Therefore, in the absence of any cogent and clinching evidence on record it is unsafe to come to believe that the accused is driving the crime vehicle at the time of the accident and accused is responsible for the accident and for causing death of the deceased 1 to 4 and causing injuries to PW-1, PW-8 to PW-10. It is therefore, in view of the above discussion it could be safely held that the prosecution utterly failed to prove the case of the prosecution against the accused.

35.In the result, accused is found not guilty for the offences punishable under Secs.337, 338 and 304-A of IPC and accused is acquitted under Sec.255(1) of Cr.P.C., for the said offence. The bail bond of accused if any shall stands cancelled after expiry of appeal time. The unmarked property i.e., TATA Indigo Car which is already given to interim custody to the accused is made absolute after appeal time is over.

Partly typed to my dictation and party dictated to Stenographer Grade III, transcribed by him, corrected and pronounced by me in the Open Court on this the 21 st October, 2014

JUDICIAL FIRST CLASS MAGISTRATE

PENUKONDA

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTION DEFENCE

PW-1Chakali Manohar----- - PW-2Talari Lakshminarasimhamma PW-3Talari Babu PW-4 Rampuram Shesaiah PW-5Erikala Nagaraju PW-6 Erikala Muthyalappa PW-7Ediga Ramanjineyulu PW-8Nallapareddigari Sreenivasa Reddy PW-9Talari Anjinamma 13

PW-10 NallaobannagariBhasker Reddy PW-11 Neeruganti Narayanaswamy PW-12 Mondi Pothanna PW-13 Erikala Sreeramulu PW-14B.Venugopal, Circle Inspector of Police, Puttaparthi Rural Circle Police Station

EXHIBITS MARKED FOR

PROSECUTION DEFENCE

Ex.P-1Statement of PW-1---- - Ex.P-2Inquest report of D-1 Ex.P-3Inquest report of D-2 Ex.P-4Inquest report of D-3 Ex.P-5Inquest report of D-4 Ex.P-6FIR Ex.P-7Rough Sketch Ex.P-8Post mortem certificates four in number Ex.P-9Wound Certificates 3 in number Ex.P-10MVI report

MATERIAL OBJECTS MARKED FOR

PROSECUTION

------

JUDICIAL FIRST CLASS MAGISTRATE

PENUKONDA

14

CALENDAR AND JUDGMENT IN C.C.No.251 of 2012 ON THE FILE OF

JUDICIAL FIRST CLASS MAGISTRATE, PENUKONDA

Date of

Offence Complai Apprehen Release Comme Close of Judgment

nt sion d ncemen Trial

of on Bail t

Accused of trial

31-10-1131-10-1110-11-1110-11-1117-04-1429-09-1421-10-14

Calendar and Judgment in C.C.No.251 of 2012 on the file of Judicial First Class Magistrate, Penukonda

Complainant: State represented by the Sub Inspector of Police, Kothacheruvu Police Station

Crime No.76 of 2011

G.Chandra Mohan S/o G.Venkataramudu, Age:31 years, D.No.5/1165, B.C.Colony, Kothacheruvu Village and Mandal, Driver of TATA Indigo Car bearing No.KA 03 D 592 (Caste: Balija, Profession: Driver)

Offences: under Secs.337, 338 and 304-A of Indian Penal Code

Finding: Found not guilty

Sentence :

In the result, accused is found not guilty for the offences punishable under Secs.337, 338 and 304-A of IPC and accused is acquitted under

Sec.255(1) of Cr.P.C., for the said offence. The bail bond of accused if any shall stands cancelled after expiry of appeal time. The unmarked property i.e., TATA Indigo Car which is already given to interim custody to the accused is made absolute after appeal time is over.

JUDICIAL FIRST CLASS MAGISTRATE

PENUKONDA

Copy submitted to the Hon’ble II Addl. District & Sessions Judge, Hindupur

1

IN THE COURT OF THE JUNIOR CIVIL JUDGE :: PENUKONDA

Present: Smt C.R.Sumalatha, Junior Civil Judge, Penukonda Monday, the 19th day of January, 2015

O.S.No.188 of 2012

Between: Nagannagari Venkataramanappa S/o Late Venkatesu, Age:about 51 years, Hindu, Agriculturist, R/o Kammapalyam Street, Kothacheruvu Village and Mandal …Plaintiff

And

Madineni Adinarayana S/o Madineni Subbaiah, Age:about 40 years, Hindu, Business, R/o Thippabatlapalli Village, Kothacheruvu Mandal, Anantapur District …Defendant

This petition is coming on 11-12-2014 for final hearing before me in the presence of Sri C.Venkataramanappa, Advocate for the Plaintiff and of Sri M.Rajendra Prasad Reddy, Advocate for the Defendant and the matter having stood over for consideration till this day, this Court made the following:-

J U D G M E N T

1.This suit is filed by the Plaintiff against the Defendant for recovery of a sum of Rs.96,340/- (Rupees Ninety Six Thousand Three

Hundred and Forty Only) due by the defendant under suit pronote ex- ecuted by the defendant in favour of Plaintiff.

2.Brief averments of the plaint are that:

On 27-08-2006, the defendant borrowed an amount of

Rs.45,000/- (Rupees Forty Five Thousand only) from the plaintiff for his business, agreeing to repay the same with interest at Rs.2/- per month per hundred i.e., @ 24% per annum and executed a promissory note in favour of plaintiff at the house of plaintiff situated at Kothacheruvu Vil- lage and Mandal. The defendant himself scribed the suit promissory note, the defendant affixed his signature on four revenue stamps in two places and also affixed his signature underneath the stamps as ac- knowledgment of payment. The plaintiff made several oral demands for repayment of the suit promissory note amount with interest, on 25- 08-2009 the defendant paid Rs.13,000/- towards interest and endorsed the same on the rear of the suit promissory note and subscribed his signature. Plaintiff further contended that the defendant is doing busi- 2 ness by maintaining tent house at Kothacheruvu and also running a

Car as Taxi, hence, the interest is claimed at Contract Rate. Except the above payment of interest on 25-08-2009 the defendant did not pay balance of interest and the principal amount due under suit promissory note. Hence the plaintiff is constrained to file the present suit.

3.Denying the averments made in the plaint the defendant filed written statement contending that he never borrowed Rs.45,000/- from the plaintiff on 27-08-2006 for his business purpose and he never executed suit pronote dt:27-08-2006 agreeing to repay the same with interest at 24% per annum and the alleged signatures contained on pronote dt:27-08-2006 are not of his signatures. Defendant further contended that the plaintiff with a view to get wrongful gain altered date from 17-08-2006 to 27-08-2006 by altering “1” as “2” to save lim- itation. Defendant further contended that plaintiff altered the date in the pronote as well as in endorsement hence, pronote dt:27- 08-2006 is void under Sec.87 of Negotiable Instrument Act and is not enforceable in the Court of law and the suit is liable to be dismissed in limine. Defendant further contended that he is an agriculturist, he is cultivating the land covered under S.No.22-1 having an extent of Ac.3- 66 cents belonging to one G.Ravindra S/o G.Adeppa of Thippabatlap- ally of Kothacheruvu Mandalam on Koru Basis and he is not doing busi- ness by maintaining tent house at Kothacheruvu and prays to dismiss the suit with exemplary costs.

4.On considering the pleadings raised by both the parties, the following issues are settled for trial :

(1) Whether the suit pronote is true, valid and binding on the de- fendant? (2) Whether the suit can be decreed as prayed for? (3) If so, to what relief? (4) Whether the suit pronote is materially altered by altering “1” as “2” in date portion or not?

3

5.During the course of trial, on behalf of the plaintiff, the plaintiff himself examined as PW-1 and through him Ex.A-1 suit promis- sory note dt:27-08-2006 and Ex.A-2 part payment endorsement dt:25- 08-2009 are marked. Plaintiff also examined PW-2 S.Sreenivasulu who is scribe of Ex.A-2. On behalf of defendant, the defendant himself ex- amined as DW-1 and no documents are exhibited.

6.Heard arguments of learned counsel for the plaintiff and learned counsel for defendant.

7.ISSUES 1 and 2: To substantiate the case of the plaintiff, plaintiff himself examined as PW-1 and got marked Ex.A-1 and Ex.A-2,

PW-1 also got examined PW-2 who is scribe of Ex.A-2 part payment endorsement dt:25-8-2009 for Rs.13,000/-. PW-1 in his evidence stated that on 27-08-2006 defendant borrowed a sum of Rs.45,000/- from him for his business purpose agreeing to repay the same with interest at 24% per annum and executed suit pronote Ex.A-1 in his favour in his house at Kothacheruvu Village and Mandal. PW-1 further stated that defendant himself scribed suit pronote and he is an illiterate and he only knows to subscribe his signature in Telugu. PW-1 further stated that inspite of several oral demands defendant paid Rs.13,000/- to him on 25-08-2009 and executed Ex.A-2 part payment endorsement on the back of Ex.A-1 and except the above said amount of Rs.13,000/- the defendant did not choose to pay neither principal amount nor remaining balance due under Ex.A-1.

8.To support the case of the plaintiff, plaintiff also got examined PW-2 who is scribe of Ex.A-2, PW-2 also corroborated the evidence of PW-1 in all material aspects with regard to defendant making of part payment of Rs.13,000/- on 25-08-2009 by the defendant to PW-1 towards interest in his presence and defendant executing Ex.A-2 by subscribing his signature underneath endorsement scribed by him. PW-2 further stated that he came to know that on 27- 4 08-2006 defendant borrowed Rs.45,000/- and executed suit pronote in favour of plaintiff. During cross examination of PW-2, nothing is elicited from PW-2 to disprove his evidence, except putting suggestion that the signature contained on Ex.A-2 as scribe of Ex.A-2 is not of signature of

PW-2 and PW-2 never scribed Ex.A-2 on the back of Ex.A-1 and defendant never paid Rs.13,000/- to the plaintiff and never subscribed his signature on Ex.A-2 which is denied by PW-2.

9.To disprove the case of the plaintiff and to prove the contention of defendant in his written statement the defendant himself examined as DW-1, DW-1 in his evidence deposed that he never borrowed Rs.45,000/- and he never made part payment of Rs.13,000/- to PW-1 and he never executed part payment endorsement Ex.A-2 on the back of suit pronote and plaintiff materially altered promissory note Ex.A-1 by altering date from 17-08-2006 to 27-08-2006 and filed this suit to get wrongful gain and pronote dt:27-08-2006 is void under

Sec.87 of Negotiable Instrument Act and the signatures contained on

Ex.A-1 are not that of his signatures and he did not pay any sum towards alleged debt and did not endorse Ex.A-2 on the back of Ex.A-1 as he did not borrow any sum from the plaintiff at any point of time.

10.During the cross examination of PW-1, PW-1 candidly conceded that there is overwriting in the date portion on Ex.A-1 and defendant subscribed three signatures on Ex.A-1 stating that defendant himself scribed Ex.A-1 with his own handwriting and denied suggestion put to him that defendant did not execute pronote on 27- 08-2006 and he himself materially altered date portion by overwriting “1” as “2” and that suit is barred by limitation and not enforceable by law. Except putting above suggestion to PW-1 that defendant did not execute promissory note on 27-08-2006 and plaintiff himself materially altered date portion by overwriting “1” as “2” the defendant did not deny he himself scribing Ex.A-1 with his own handwriting and also did 5 not deny the handwriting contained on Ex.A-1 as not of his handwriting and did not deny signatures contained on revenue stamp and underneath revenue stamp on Ex.A-1 and further no suggestion is put to PW-1 by the learned counsel for defendant denying part payment of

Rs.13,000/- by him to PW-1 on 25-08-2006 and execution of Ex.A-2 by the defendant on the back of Ex.A-1 by subscribing his signatures, it is for the reasons best known to the defendant.

11.If really defendant did not execute Ex.A-1 and handwriting and signatures contained on Ex.A-1 are not that of defendant certainly the defendant could have also denied handwriting contained on Ex.A-1 as not of his handwriting and also defendant could have denied signatures contained on Ex.A-1 as not of his signatures and certainly defendant could have also denied payment of part payment of

Rs.13,000/- by him on 25-08-2009 to PW-1 and defendant subscribing his signature on Ex.A-2 endorsement on the back of Ex.A-1. Further the defendant did not choose to send the disputed signatures contained on

Ex.A-1 and Ex.A-2 and handwriting contained on Ex.A-1 to the handwriting expert for comparison of disputed signatures contained on

Ex.A-1 and Ex.A-2 with his admitted signatures contained on served summons, written statement, vakalath and also to compare handwriting of defendant taken in public Court with the handwriting contained on Ex.A-1 to prove that defendant never scribed Ex.A-1 with his own handwriting and defendant never subscribed his signatures on

Ex.A-1 and Ex.A-2. If really the handwriting contained on Ex.A-1 is not that of the defendant and if signatures contained on Ex.A-1 and Ex.A-2 are not that of the defendant certainly the defendant could have sent disputed signatures contained on Ex.A-1 and Ex.A-2 to the handwriting expert for comparison with his admitted signatures which are very much available on record and further the defendant could have sent his handwritings taken in public Court to the handwriting expert for 6 comparison with the handwriting contained on Ex.A-1 but the defendant did not choose to send the disputed signatures contained on

Ex.A-1 and Ex.A-2 and handwriting contained on Ex.A-1 to the handwriting expert for comparison of disputed signatures contained on

Ex.A-1 and Ex.A-2 with the admitted signatures of defendant contained on served summons, written statement, vakalath and also to compare handwriting of defendant taken in public Court with the handwriting contained on Ex.A-1 it is for the reasons best known to defendant.

12.The evidence of PW-1 and PW-2 coupled with Ex.A-1 and

Ex.A-2 is quite clear and cogent with regard to defendant borrowing

Rs.45,000/- from PW-1 on 27-08-2006 and defendant executing Ex.A- 1 by scribing Ex.A-1 with his own handwriting and defendant making part payment of Rs.13,000/- to PW-1 on 25-08-2009 towards interest due under Ex.A-1 in the presence of PW-2 and executed Ex.A-2 by subscribing his signatures on Ex.A-2 and plaintiff proved that the defendant executed Ex.A-1 with his own handwriting and executed

Ex.A-1 on receiving consideration of Rs.45,000/- from PW-1 and on 25- 08-2009 defendant paid Rs.13,000/- to PW-1 in the presence of PW-2 towards interest due under Ex.A-1 and executed Ex.A-2 and plaintiff discharged his burden and burden shifts on to the defendant to prove that he never executed Ex.A-1 on 27-08-2006 with his own handwriting and signatures contained on Ex.A-1 and Ex.A-2 are not of his signatures and except self interested testimony of defendant there is no either oral or documentary evidence to prove that the signatures contained on Ex.A-1 and Ex.A-2 are not that of signatures of defendant and handwriting contained on Ex.A-1 was not that of the defendant and there is no substantial evidence on record to believe the version of the defendant. Accordingly issues 1 and 2 are answered.

13.ISSUE NO.4: The contention of defendant is that, the date portion in suit pronote Ex.A-1 is materially altered by altering “1” as 7 “2” and suit is also barred by limitation and suit pronote is void under

Sec.87 of Negotiable Instrument Act and cannot be enforced in the

Court of Law. During cross examination of PW-1 a suggestion to that effect is put to PW-1, PW-1 conceded that there is material alteration in date portion by altering “1” as “2” and stated that he is an illiterate and he knows to subscribe his signature in Telugu and Ex.A-1 is not void under Sec.87 of Negotiable Instrument Act as the defendant himself altered the date in the date portion by overwriting “1” figure as “2” at the time of execution of Ex.A-1 itself.

14.While advancing arguments the learned counsel for plaintiff argued that defendant himself scribed Ex.A-1 with his handwriting and defendant himself altered date “1” as “2” on Ex.A-1 on the date of execution of Ex.A-1 and PW-1 is an illiterate and he only knows to subscribe his signature only in Telugu and Ex.A-1 is not void under Sec.87 of Negotiable Instrument Act as it was made by the defendant at the time of execution of Ex.A-1 itself.

Sec.87 of Negotiable Instrument Act reads as “Any material alteration of a negotiable instrument renders the same void as against anyone who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties. Alteration by endorsee: And any such alteration, if made by an endorsee, discharges his endorser from all liability to him in respect of the consideration thereof. The provisions of this section are subject to those of sections 20, 49, 86 and 125.”

15.It is therefore, as per Sec.87 of Negotiable Instrument Act any material alteration made by anyone of the party without the consent of other party at the time of making such alteration renders negotiable instrument as void but if such an alteration is made by anyone of the party with the consent of other party thereto in order to carryout common intention of original parties does not render negotiable instrument as void. Therefore in the present case according to PW-1 Ex.A-1 is executed by the defendant with his own handwriting 8 which is not denied by defendant and as already discussed above plaintiff categorically proved execution of Ex.A-1 by examining himself and also proved execution of Ex.A-2 by examining himself and by examining PW-2 who is scribe of Ex.A-2 and no steps were taken by the defendant to disprove that the handwriting contained on Ex.A-1 is not that of his handwriting and handwriting in date portion is not that of his handwriting and handwriting in figure “1” and figure “2” in date portion is not tallied with that of the handwriting contained on Ex.A-1 to prove that figure “1” is overwritten by altering “1” in date portion as “2” and Ex.A-1 is materially altered by some others without the consent and knowledge of the defendant, therefore, it could be safely presumed that defendant himself who is scribe of Ex.A-1 altered date portion at the time of execution of Ex.A-1 itself and it could be safely said that Ex.A-1 is not void document under Sec.87 of Negotiable

Instrument Act. Accordingly this issue is answered in favour of the plaintiff and against the defendant.

16.ISSUE NO.3: In the result suit is decreed for the suit amount of Rs.96,340/- (Rupees Ninety Six Thousand Three Hundred and Forty only) with costs with future interest on the principal amount of Rs.45,000/- @ 12% p.a from the date of filing of the suit till the date of decree and thereafter @ 6 % p.a till realization.

Typed to my dictation to Stenographer Grade III, corrected and pronounced by me in open Court, this the 19th day of January, 2015

JUNIOR CIVIL

JUDGE

PENUKON

DA

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PLAINTIFFDEFENDANT

PW-1Nagannagari DW-1M.Adinarayana Venkataramanappa PW-2S.Sreenivasulu

EXHIBITS MARKED FOR

PLAINTIFFDEFENDANT

9

Ex.A-1Suitpromissorynote -----

dt:27-08-2006 for an

amount of Rs.45,000/- executed by the defendant in favour of plaintiff Ex.A-2Partpayment endorsementdt:25-08- 2009 for an amount of Rs.13,000/-

J CJ

IN THE COURT OF THE JUNIOR CIVIL JUDGE :: PENUKONDA

Present: Smt C.R.Sumalatha., B.Sc., LL.B., Junior Civil Judge, Penukonda

Monday, the 19th day of January, 2015

O.S.No.188 of 2012

Between: Nagannagari Venkataramanappa S/o Late Venkatesu, Age:about 51 years, Hindu, Agriculturist, R/o Kammapalyam Street, Kothacheruvu Village and Mandal …Plaintiff

And

Madineni Adinarayana S/o Madineni Subbaiah, Age:about 40 years, Hindu, Business, R/o Thippabatlapalli Village, Kothacheruvu Mandal, Anantapur District …Defendant Suit for recovery of Rs.96,340/- (Rupees Ninety Six

Thousand Three Hundred and Forty Only) under suit pronote.

10

Plaint Presented on: 25-08-2012

Plaint numbered on: 04-09-2012

Suit is valued for the purpose of Court fee and jurisdiction on promissory note is at Rs.96,340/- and a Court fee of Rs.3,346/- is paid and on thereon under Section 20 of A.P.C.F. and S.V.Act.

The Cause of action for the suit arose when the defendant bor- rowed a sum of Rs.45,000/- from the plaintiff on 27-08-2006 at plaintiffs house at Kothacheruvu Village and Mandal and also paid

Rs.13,000/- on 25-08-2009 as interst, the transaction took place at

Kothacheruvu Village is within the jurisdiction of this Hon’ble Court.

This suit is coming on this day for final hearing before me in the presence of Sri C.Venkataramanappa, Advocate for the Plaintiff and Sri

M.Rajendra Prasad Reddy, Advocate for the Defendant and the matter having stood over for consideration this Court doth order and decree as follows:-

1. That the defendant do pay to the plaintiff a sum of Rs.96,340/- (Rupees Ninety Six Thousand Three Hundred and Forty Only) with costs with future interest on the principal amount of Rs.45,000/-(Ru- pees Forty Five thousand only) @ 12%p.a from the date of filing of the suit viz., 25-08-2012 till the date of decree and thereafter @ 6 % p.a till realization;

2.That the defendant does also pay to the plaintiff a sum of

Rs.7,666/- towards the costs of the suit.

Given under my hand and the seal of the Court this the 19th day of January, 2015 Junior Civil Judge Penukonda

Table of Costs Plaintiff Defend- ant

Stamp on plaint Rs. 3,346-00 Rs. --

Stamp on vakalat Rs. 2-00 Rs. 2-00

Process Rs. 60-00 Rs. --

Typing charges Rs. 20-00 Rs. --

Writing charges Rs. - Rs. --

Advocate Fee (as claimed) Rs. 4,238-00 Rs.4,580-00 11

- - - - - - - - - - - - - - - - -

- - - -

Total: Rs. 7,666-00 Rs.4,582-00

- - - - - - - - - - - - - - - -- - - - -

J.C.J

1

IN THE COURT OF THE JUNIOR CIVIL JUDGE :: PENUKONDA

Present: Smt C.R.Sumalatha, Junior Civil Judge, Penukonda

Thursday, the 23rd day of April, 2015

O.S.No.36 of 2012

Between: Chinta Janardhana Reddy S/o C.Thippa Reddy, 35 years, Weaver, Maruti Nagar, Somandepalli (V) & (M) …Plaintiff

And

Karavula Nagi Reddy S/o K.Adi Reddy, 32 years, D.No.2/504, Weaver, Maruti Nagar, Somandepalli (V) & (M) …Defendant

This petition is coming on 26-03-2015 for final hearing before me in the presence of Sri Md.Asif, Advocate for the Plaintiff and of Sri M.Sreenivasulu and G.Sarath Babu, Advocates for the Defendant and the matter having stood over for consideration till this day, this Court made the following:-

J U D G M E N T

1.This suit is filed by the Plaintiff against the Defendant for recovery of a sum of Rs.86,300/- (Rupees Eighty Six Thousand Three

Hundred Only) due by the defendant under suit pronote executed by the defendant in favour of Plaintiff.

2.Brief averments of the plaint are that:

On 21-02-2009 the defendant borrowed an amount of

Rs.50,000/- (Rupees Fifty Thousand only) from the plaintiff in cash for his necessities and executed a promissory note in favour of plaintiff, agreeing to repay the same with interest @ 24% per annum either to the plaintiff or to his order on demand. Inspite of repeated demands made by the plaintiff the defendant did not pay any amount to the plaintiff and used to give evasive answers. The plaintiff finally got is- sued a notice to the defendant on 16-02-2012 but the defendant neither replied nor discharged the debt amount due to the plaintiff.

The defendant is a weaver and no debt relief Act is applicable to him, 2 so the interest is claimed as per the contract rate of interest at 24% per annum. Hence the plaintiff is constrained to file the present suit.

3.Denying the averments made in the plaint the defendant filed written statement contending that he never borrowed Rs.50,000/- from the plaintiff on 21-02-2009 and after receipt of legal notice he gave suitable reply to the plaintiff and suppressing the said fact plaintiff filed this unjust suit to get wrongful gain. Defendant further contended that on 20-03-2011 he paid entire suit pronote debt to the plaintiff with accrued interest thereon but the plaintiff failed to return the pronote stating that the pronote executed by the defendant is mis- placed somewhere and promised to return the suit pronote whenever traced in future. Defendant further contended that in acknowledgment for payment made by the defendant the plaintiff executed two promis- sory notes in favour of the defendant to a tune of Rs.25,000/- each in- stead of giving receipt and that the plaintiff has no right to claim again on the pronote for which he had already received amount from the de- fendant and prays to dismiss the suit with costs.

4.On considering the pleadings raised by both the parties, the following issues are settled for trial :

(1) Whether the suit pronote is discharged one? (2) Whether the suit can be decreed as prayed for? (3) If so, to what relief?

5.During the course of trial, on behalf of the plaintiff, the plaintiff himself examined as PW-1 and through him Ex.A-1 suit promis- sory note dt:21-02-2009 and Ex.A-2 office copy of notice dt:16-02-2012 are marked. Plaintiff also examined PW-2 S.Nanji Reddy who is attestor of Ex.A-1.

On behalf of defendant, the defendant himself examined as

DW-1 and through him Ex.B-1 promissory note dt:20-03-2011 for an amount of Rs.25,000/- executed by C.Janardhan Reddy S/o C.Thippa 3

Reddy R/o Maruthi Nagar of Somandepalli in favour of K.Nagi Reddy

S/o K.Adinarayana Reddy R/o Maruthi Nagar of Somandepalli, Ex.B-2 promissory note dt:20-03-2011 for an amount of Rs.25,000/- executed by C.Janardhan Reddy S/o C.Thippa Reddy R/o Maruthi Nagar of

Somandepalli in favour of K.Nagi Reddy S/o K.Adinarayana Reddy R/o

Maruthi Nagar of Somandepalli and Ex.B-3 office copy of legal notice

dt:22-02-2012 are marked. Defendant also examined DW-2

G.Raveendrareddy who is the attestor of Ex.B-1 and Ex.B-2.

6.Heard arguments of learned counsel for the plaintiff and learned counsel for defendant.

7.ISSUES 1 and 2: To substantiate the case of the plaintiff, plaintiff himself examined as PW-1 and got marked Ex.A-1 and Ex.A-2, besides examining PW-2 S.Nanji Reddy who is one of the attestors of

Ex.A-1. PW-1 in his evidence stated that on 21-02-2009 the defendant borrowed a sum of Rs.50,000/- from him and executed promissory note in his favour agreeing to repay the same on demand with interest at the rate of 24% per annum in the presence of P.Sankar Reddy and

Nanji Reddy who attested the suit promissory note and defendant himself scribed the same and inspite of repeated demands the defendant did not choose to pay any amount to PW-1 on that on 16- 02-2012 PW-1 got issued legal notice to the defendant, inspite of receipt of legal notice the defendant neither gave reply nor discharged the debt. PW-1 further stated that though the defendant admitted receiving the amount and executing suit promissory note failed to discharge the same and made false allegations intentionally in order to evade debt due on him. The plaintiff further stated that the defendant is a weaver so, he claimed interest at the rate of contract rate of interest i.e., @ 24% per annum as no debt relief Act is applicable to the defendant.

4

8.PW-2 S.Nanji Reddy who is cited as one of the attestors of

Ex.A-1 also corroborated the evidence of PW-1 in all material aspects with regard to borrowing of Rs.50,000/- by the defendant from PW-1 on 21-02-2009 and defendant executing suit promissory note Ex.A-1 agreeing to repay the same with interest at 24% per annum in favour of PW-1 in his presence and in the presence of P.Sankar Reddy and defendant himself scribed Ex.A-1. During cross examination of PW-1 and PW-2 nothing is elicited from them to disprove their evidence except putting suggestions which are denied by PW-1 and PW-2.

9.To rebut his evidence of PW-1 and PW-2 and prove the contention of the defendant the defendant himself is examined as

DW-1, DW-1 in his evidence categorically admitted about he borrowing

Rs.50,000/- from the plaintiff on 21-02-2009 and defendant executing

Ex.A-1 in favour of the plaintiff. It is therefore, there is no dispute that defendant borrowed Rs.50,000/- from the plaintiff on 21-02-2009 and defendant executing Ex.A-1 in favour of the plaintiff. It is the contention of the defendant is that on 20-03-2011 he repaid entire suit pronote debt to PW-1 with accrued interest thereon but plaintiff did not return back Ex.A-1 stating that Ex.A-1 was misplaced and promised him to return the same whenever traced and in acknowledging payment made by him to the plaintiff, plaintiff executed two promissory notes in his favour for Rs.25,000/- each on 20-03-2011 instead of issuing receipt. Therefore, when once the defendant admitted execution of suit pronote for Rs.50,000/- in favour of PW-1 on receiving consideration of Rs.50,000/- and taken plea of discharge of entire amount due under Ex.A-1 to the plaintiff on 20-03-2011, then, the burden automatically shifts on to the defendant to prove that he repaid entire amount due under Ex.A-1 to the plaintiff.

10.To prove the contention of the defendant that he discharged entire amount due under Ex.A-1 to the plaintiff the 5 defendant got marked Ex.B-1 promissory note dt:20-03-2011 for an amount of Rs.25,000/- executed by C.Janardhan Reddy S/o C.Thippa

Reddy R/o Maruthi Nagar of Somandepalli in favour of K.Nagi Reddy

S/o K.Adinarayana Reddy R/o Maruthi Nagar of Somandepalli and Ex.B- 2 promissory note dt:20-03-2011 for an amount of Rs.25,000/- executed by C.Janardhan Reddy S/o C.Thippa Reddy R/o Maruthi Nagar of Somandepalli in favour of K.Nagi Reddy S/o K.Adinarayana Reddy

R/o Maruthi Nagar of Somandepalli and also got examined DW-2

G.Raveendrareddy who is cited as attestor of Ex.B-1 and Ex.B-2.

11.During the cross examination of DW-1, DW-1 candidly conceded that he never issued notice to the plaintiff demanding plaintiff to return back discharged pronote and there is no mention in

Ex.B-1 and Ex.B-2 that plaintiff got executed Ex.B-1 and Ex.B-2 in his favour as plaintiff did not return back the pronote discharged by him and he did not obtain any receipt from the plaintiff to the effect that he paid entire amount due to the plaintiff under Ex.A-1.

12.There is no explanation from DW-1 as to why he failed to obtain receipt from the plaintiff with regard to the payment of entire amount due by him to the plaintiff under suit pronote instead of obtaining two promissory notes for Rs.25,000/- each it is for the reasons best known to the defendant. Further there is no recital in

Ex.B-1 and Ex.B-2 to the effect that plaintiff executed those promissory notes in relation to failure to return back the discharged pronote to the defendant.

13.The evidence of DW-1 is silent as to how much amount he paid to the plaintiff on 20-03-2011 towards discharge of entire amount due under Ex.A-1 with accrued interest, if really DW-1 has repaid entire amount due under Ex.A-1 with accrued interest DW-1 could have specifically stated how much amount he gave to PW-1 on 20-03-2011 6 towards discharge of amount due under Ex.A-1 and in whose presence he gave said amount.

14.Further if really defendant discharged entire amount due to

PW-1 under Ex.A-1 on 20-03-2011 and plaintiff did not return back discharged promissory note stating that the same is misplaced certainly the defendant could have obtained receipt from the plaintiff with regard to payment of entire debt due under Ex.A-1 to the plaintiff and defendant could have also issued notice to the plaintiff asking plaintiff to return back discharged pronote to him stating that he repaid entire amount due under suit pronote but plaintiff did not return back discharged pronote and stated that the same is misplaced but no notice is issued by the defendant to PW-1 asking plaintiff to return back discharged pronote except issuing reply notice dt:22-02-2012 after receipt of legal notice dt:16-02-2012.

15.It is therefore, except Ex.B-3 i.e., reply notice dt:22-02- 2012 which is issued to the plaintiff subsequent to filing of this suit which is filed on 21-02-2012 no notice is issued to the plaintiff by the defendant immediately after 20-03-2011 and no scrap of paper is filed by the defendant to show that defendant paid entire amount with accrued interest to PW-1 on 20-03-2011 towards the amount due under Ex.A-1 and obtained Ex.B-1 and Ex.B-2 from PW-1 towards discharge of amount due under Ex.A-1.

16.To support the evidence of DW-1, DW-1 got examined DW- 2 who is cited as attestor of Ex.B-1 and Ex.B-2, DW-2 in his chief exam- ination stated that defendant paid entire suit pronote debt in his pres- ence and in the presence of one P.Prasad but plaintiff did not return back suit pronote stating that the suit pronote was misplace some- where and promised to return the same to the defendant whenever it is traced and plaintiff executed two promissory notes for Rs.25,000/- in favour of plaintiff in acknowledging payment made by the defendant.

7

There is no whisper in the evidence of DW-2 as to on what date the de- fendant paid entire amount to the plaintiff towards discharge of suit pronote debt. Further during cross examination DW-2, DW-2 categor- ically stated that defendant borrowed Rs.50,000/- from the plaintiff about four years back and defendant repaid Rs.50,000/- about two years back which clearly indicates that defendant borrowed

Rs.50,000/- from the plaintif about four years back and returned

Rs.50,000/- about 2 years back but no interest is paid by the defendant to plaintiff whereas the evidence of DW-1 is that he paid entire amount with accrued interest to the amount due under Ex.A-1 to the plaintiff.

Further it is significant to note that during cross examination DW-2,

DW-2 stated that he does not aware about the money dealing between plaintiff and defendant, if that is so, it is ununderstandable as to how could DW-2 can say that DW-1 paid Rs.50,000/- to the plaintiff towards discharge of entire amount due under Ex.A-1 only, it is for the reasons best known to DW-2 and much credence need not be given to the evid- ence of DW-2. The contention of the plaintiff is that he never executed

Ex.B-1 and Ex.B-2 and Ex.B-1 and Ex.B-2 are created by the defendant with the assistance of DW-2 and one Prasad for the purpose of this suit and a suggestion to that effect is put to DW-1 and DW-2 which is denied by them. However it is the burden of the defendant to prove that he discharged entire amount with accrued interest under Ex.A-1 to

PW-1 and PW-1 did not return back discharged pronote Ex.A-1 and ex- ecuted Ex.B-1 and Ex.B-2 acknowledging payment of amount due un- der Ex.A-1 and the signatures contained on Ex.B-1 and Ex.B-2 are be- longs to plaintiff. But the defendant did not take any steps to send the disputed signatures contained on Ex.B-1 and Ex.B-2 to the handwriting expert for comparison with the signatures of plaintiff contained on

Ex.B-1 and Ex.B-2 with the admitted signatures of plaintiff which are very much available in the record, it is for the reasons best known to 8 defendant and defendant failed to prove that he repaid entire amount due under Ex.A-1 and he discharged entire amount due under Ex.A-1.

Therefore, the evidence of PW-1 and PW-2 coupled with Ex.A-1 and

Ex.A-2 and admission of the defendant that he borrowed an amount of

Rs.50,000/- from PW-1 and executed Ex.A-1 suit promissory note, it could be safely held that defendant borrowed an amount of Rs.50,000/- from the plaintiff and executed Ex.A-1 suit promissory note and de- fendant did not pay any amount towards discharge of amount due un- der Ex.A-1. Accordingly these two issues are answered in favour of the plaintiff and against the defendant.

17.ISSUE NO.3: In the result suit is decreed for the suit amount of Rs.86,300/- (Rupees Eighty Six Thousand Three Hundred only) with costs with future interest on the principal amount of

Rs.50,000/- @ 12% p.a from the date of filing of the suit till the date of decree and thereafter @ 6 % p.a till realization.

Dictated to Stenographer Grade III, transcribed by him, corrected and

pronounced by me in open Court, this the 23rd day of April, 2015

JUNIOR CIVIL

JUDGE

PENUKON

DA

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PLAINTIFFDEFENDANT

PW-1Chinta Janardhana Reddy DW-1K.Nagireddy PW-2S.Nanji ReddyDW-2G.Raveendra Reddy

EXHIBITS MARKED FOR

PLAINTIFFDEFENDANT

Ex.A-1Suit promissory note Ex.B-1Promissorynote

dt:21-02-2009dt:20-03-2011 for

anamountof Rs.25,000/- executedby C.Janardhan Reddy S/o C.Thippa Reddy R/o Maruthi Nagar of Somandepalli in favour of K.Nagi ReddyS/o K.Adinarayana 9

Reddy R/o Maruthi Nagarof Somandepalli Ex.A-2Office Copy of the notice Ex.B-2Promissorynote

dt:16-02-2012dt:20-03-2011 for

anamountof Rs.25,000/- executedby C.Janardhan Reddy S/o C.Thippa Reddy R/o Maruthi Nagar of Somandepalli in favour of K.Nagi ReddyS/o K.Adinarayana Reddy R/o Maruthi Nagarof Somandepalli Ex.B-3Office copy of legal noticedt:22-02- 2012

J CJ

IN THE COURT OF THE JUNIOR CIVIL JUDGE :: PENUKONDA

Present: Smt C.R.Sumalatha, Junior Civil Judge, Penukonda

Thursday, the 23rd day of April, 2015

O.S.No.36 of 2012

Between: Chinta Janardhana Reddy S/o C.Thippa Reddy, 35 years, Weaver, Maruti Nagar, Somandepalli (V) & (M) 10 …Plaintiff

And

Karavula Nagi Reddy S/o K.Adi Reddy, 32 years, D.No.2/504, Weaver, Maruti Nagar, Somandepalli (V) & (M) …Defendant Suit for recovery of Rs.86,300/- (Rupees Eighty Six

Thousand Three Hundred Only) under suit pronote.

Plaint Presented on: 21-02-2012

Plaint numbered on: 21-02-2012

Suit is valued for the purpose of Court fee and jurisdiction on promissory note is at Rs.86,300/- and a Court fee of Rs.3,186/- is paid and on thereon under Section 20 of A.P.C.F. and S.V.Act.

The Cause of action for the suit arose on 21-02-2009 when the defendant executed the suit promissory note in favour of plaintiff after receiving cash of Rs.50,000/- from the plaintiff, agreeing to repay the same on demand with interest @ 24% per annum and on subsequent dates when the plaintiff demanded the defendant for repayment of debt amount and the defendant used to give evasive answers and on 16-02-2012 when the plaintiff got issued a notice to the defendant and the defendant neither replied nor discharged the debt all at

Somandepalli Village and Mandal within the jurisdiction of this Hon’ble

Court.

This suit is coming on this day for final hearing before me in the presence of Sri Md.Asif, Advocate for the Plaintiff and Sri M.Sreeniva- sulu, Advocate for the Defendant and the matter having stood over for consideration this Court doth order and decree as follows:-

1. That the defendant do pay to the plaintiff a sum of Rs.86,300/- (Rupees Eighty Six Thousand Three Hundred Only) with costs with fu- ture interest on the principal amount of Rs.50,000/-(Rupees Fifty thou- sand only) @ 12% p.a from the date of filing of the suit viz., 21-02- 2012 till the date of decree and thereafter @ 6 % p.a till realization;

2.That the defendant do also pay to the plaintiff a sum of

Rs.7,617/- towards the costs of the suit.

Given under my hand and the seal of the Court this the 23rd day of April, 2015 Junior Civil Judge Penukonda

Table of Costs 11

Plaintiff Defend- ant

Stamp on plaint Rs. 3,186-00 Rs. --

Stamp on vakalat Rs. 2-00 Rs. 2-00

Process Rs. 140-00 Rs. --

Typing charges Rs. -- Rs. --

Writing charges Rs. - Rs. --

Advocate Fee (as claimed) Rs. 4,289-00 Rs. --

- - - - - - - - - - - - - - - - -

- - - -

Total: Rs. 7,617-00 Rs. 2-00

- - - - - - - - - - - - - - - -- - - - -

J.C.J