Smt C.Sumalatha

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE,

KURNOOL.

PRESENT: Smt. C.Sumalatha,

Principal District Judge, Kurnool.

Friday, the 8th day of July 2016

APPEAL SUIT No.89 of 2009

K.Rameswaramma .. Appellant

-Versus-

1. P.Chandra Sekhar (died) by LRs.

2. P.Thulasiram

3. P.Gajalakshmi .. Respondents

4. P.Venkamma (Respondent No.4 is impleaded as per the orders in I.A. No.758/2011, dated 14-06-2011)

On appeal against the judgment and decree dated 10-02-2009 that is rendered in Original Suit No.1185 of 2003 on the file of the Court of Principal Junior Civil Judge, Kurnool.

Between

K.Rameswaramma .. Plaintiff

-and-

1. P.Chandrasekhar

2. P.Thulasiram .. Defendants

3. P.Gajalakshmi

P.D.J. A.S. 89 of 2009 2

This appeal coming on 03-06-2016 for final hearing

before me in the presence of C.Nagendranath, Advocate for the

appellant, Sri G.C. Rao, Advocate for the respondents 2 and 3,

Sri M.D.Y. Rama Moorthy and Sri M.D.V. Jogaiah Sarma,

Advocates for the fourth respondent and the first respondent having died; upon perusal of the material available on record and having stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

With a submission to set aside the judgment and decree of the Court of Principal Junior Civil Judge, Kurnool, which is passed in Original Suit No.1185 of 2003 dated 10-02-2009, the appellant, who is the plaintiff in the said Original Suit, approached this Court by way of appeal.

2. The dismissal of the suit, which was filed for the relief of specific performance of Ex.A1 agreement of sale, resulted in the present appeal.

3. In the grounds of appeal, it is contended that the judgment of the trial Court is against law, weight of evidence and probabilities of the case and out of the five issues framed, the trial Court answered two issues in favour of the appellant/plaintiff and the trial Court ought to have considered that the respondents 2 and 3, i.e., defendants 2 and 3, who are the son and the daughter, respectively, of the first respondent

P.D.J. A.S. 89 of 2009 3 have no right to come on record and it ought to have concluded that the first respondent has got saleable interest in the suit schedule property. It is also mentioned that as far as Ex.A1 is concerned, steps will be taken to fill up the lacunae by praying the Court to send the said document to the Sub Registrar,

Kurnool and get it registered and as such, the judgment of the trial Court has to be set aside.

4. Notice served upon the respondents 1 to 4.

It is reported that the first respondent died.

5. Heard on both sides.

6. Projecting at length the genuineness in the case of the appellant/plaintiff, the learned Counsel for the appellant contended that the first respondent agreed to sell the suit schedule property, which is a house for Rs.84,000/- and the appellant agreed to purchase it and on that, the first respondent received a sum of Rs.10,000/- in cash and executed an agreement of sale on the terms that on receiving the balance of sale consideration, he would execute a regular registered sale deed and when the appellant pooled-up the money and begged the first respondent to receive the balance of sale consideration and execute the sale deed, the first respondent did not respond and on that, the appellant got issued a legal notice and thereafter filed the suit and indeed,

P.D.J. A.S. 89 of 2009 4 the first respondent, who came up on record, admitted execution of agreement of sale and also that he agreed to sell the suit schedule property for Rs.84,000/- and that he received

Rs.10,000/- as advance, but came up with a cunning plea that the suit schedule property is his ancestral property and that there are other sharers, who are entitled to a share in the said property and thereafter, the children of the first respondent filed a petition to implead them as parties to the suit and the said application stood dismissed and on that, they approached the Hon’ble High Court and got an order in their favour and therefore, those children were impleaded as the defendants 2 and 3 and all of them, by projecting that it is an ancestral property, in which the first respondent has got limited share, got the suit dismissed, putting the appellant/plaintiff to enormous financial loss and mental agony, and if really the suit property is ancestral property, the first respondent would not have executed an agreement of sale to that effect, that too, in the presence of his wife, who is clearly brought on record and furthermore, the appellant/plaintiff produced ample evidence to show that the ancestral property of the first respondent/first defendant was partitioned long ago and that the first respondent and his brother were enjoying their respective share of property, but the trial Court, without considering all these aspects, simply dismissed the suit and as such, the appellant sought for justice.

P.D.J. A.S. 89 of 2009 5

Denying the said submission and seriously assailing with the manner in which the case facts were projected, the learned

Counsel, who are appearing for the respondents 2 to 4, contended that the suit property is the ancestral property of the first respondent, in which the respondents 2 and 3 are also having share and the first respondent, under no circumstances, can execute any deed in favour of third parties in respect of the property in which he has got no absolute right and taking this aspect into consideration, the trial Court rightly dismissed the suit and hence, the judgment of the trial

Court is valid in all aspects and thus, this Court cannot interfere with the well reasoned judgment of the trial Court.

7. Taking into consideration the pleadings of both parties, which are on record in the form of plaint and written statement and also the submissions made by both parties before this

Court, the following points are settled for discussion.

1. Whether the first respondent/first defendant has got saleable interest in the suit schedule property?

2. Whether Ex.A1 agreement of sale is true, valid and binding upon the respondents/defendants?

3. Whether there exists any infirmity in the judgment of the trial Court either in appreciating the facts of the case or in applying the established principles of law to the said facts, as contended by the appellant herein and if so, to what relief, the appellant in the capacity of the plaintiff is entitled to?

P.D.J. A.S. 89 of 2009 6

8. POINT Nos.1 to 3:

The version of the appellant is that on 06-08-2003, the first respondent agreed to sell his house, i.e., suit schedule property for a consideration of Rs.84,000/- and she agreed to purchase the said property and paid Rs.10,000/- in cash and the first respondent agreed to receive the balance of sale consideration, i.e., Rs.74,000/- within 40 days and agreed to execute a regular registered sale deed and incorporating those terms and conditions, Ex.A1 agreement of sale was executed and thereafter, she sold away some of her she-buffaloes, two tulas of gold and collected Rs.45,000/- from a private chit and thereafter demanded the first respondent to receive the balance of sale consideration and execute a regular sale deed and on that, the first respondent promised that he will execute it on 16-08-2003, but he failed to do so and on that, she got issued a legal notice and thereafter filed the suit.

Through the written statement, the first respondent, admitting the fact of execution of the suit document, contended that as the appellant pressurised him to enter into the agreement of sale, he executed the suit document and indeed, he informed the appellant that the suit property is his ancestral property, but the appellant stated that she will convince other coparceners and obtain regular sale deed and further, she never approached him by stating that she is ready with the balance of sale consideration and indeed, he requested

P.D.J. A.S. 89 of 2009 7 the appellant to take back Rs.10,000/- for avoiding all complications, but the appellant filed the suit, however, he is ready to deposit Rs.10,000/- if the Court directs and the suit is also not maintainable under the Limitation Act and also the

Registration Act and thus, the suit has to be dismissed.

The respondents 2 and 3, in their written statement, contended that the appellant knew pretty well that the suit property is the ancestral property and the suit property is more valuable and the sale consideration shown in the suit document is hopelessly less and therefore, the suit is not maintainable.

9. Through a rejoinder, the appellant contended that the suit property is a government land and the first respondent, by paying nominal value, purchased it from the government and the first respondent, being a Head Constable, is threatening.

10. Putting into scrutiny the evidence of PW1, i.e., the appellant/plaintiff, the evidence of PW2-K.Hanumantha Rao, the evidence of DW1, i.e., the first respondent, the evidence of

DW2, i.e., the second respondent, Ex.A1 agreement of sale,

Ex.A2-office copy of legal notice, Exs.A3 and A4-receipts,

Ex.A5-copy of registered sale deed dated 16-09-1999, Ex.A6- reply notice, Exs.B1 to B3-property tax notices and Ex.B4-tax receipt, the learned Judge of the trial Court came to conclusion

P.D.J. A.S. 89 of 2009 8 that the relief sought for cannot be granted and as such, dismissed the suit with costs.

When the judgment of the trial Court is meticulously perused, this Court finds that the learned Judge has framed initially five issues, which are as follows:

(1) Whether the plaintiff obtained agreement of sale from the defendant dated 06-08-203 forcibly?

(2) Whether the defendant has got saleable interest in the property covered under agreement of sale?

(3) Whether the plaintiff is ready and willing to perform his part of the contract by paying balance of Rs.74,000/-?

(4) Whether the plaintiff is entitled for specific performance of the agreement of sale dated 06-08-2003?

(5) To what relief?

The learned Judge subsequently, i.e., on 13-03-2007, framed two additional issues as under:

(1) Whether the suit property is ancestral property of defendants 1 to 3 and defendants 2 and 3 have got 1/3rd each in the said property?

(2) Whether the agreement of sale dated 06-08-2003 alleged to have executed by the first defendant in favour of plaintiff is binding on defendants 2 and 3?

Having framed these two additional issues, the learned

Judge ought to have answered them. But, the learned Judge

did not make their mention in the judgment at all and he consequently did not give any finding on those issues. The established principle of law is that each and every issue has to

P.D.J. A.S. 89 of 2009 9 be answered. This Court, sitting on appeal, cannot now make any discussion on those additional issues and the findings, if any, given on those additional issues by this Court, will adversely affect the parties to the proceedings. Therefore, this

Court is of the humble view that the matter has to be remanded to the trial Court to give its findings on the

additional issues and then arrive at a just conclusion.

These Points are thus answered accordingly.

11. In the result, the judgment of the trial Court, which is rendered in Original Suit No.1185 of 2003 dated 10-02-2009 on the file of the Court of Principal Junior Civil Judge, Kurnool is set aside and the matter is remanded back to the trial Court to make a fresh consideration, answer all issues, give a comprehensive finding on each issue and then decide the suit basing on the conclusions arrived at.

Having regard to the fact that the suit is of the year 2003, the trial Court is directed to dispose-of the matter within four months from the date of receipt of this judgment.

Dictated to the Stenographer, transcribed by him, corrected

and pronounced by me in open Court, this the 8 th day of

July 2016.

PRINCIPAL DISTRICT JUDGE,

KURNOOL.

Typed and compared by me :

IN THE COURT OF THE PRINCIPAL SESSIONS JUDGE,

KURNOOL.

PRESENT: Smt. C.Sumalatha,

Principal Sessions Judge, Kurnool

Friday, the 1st day of July 2016.

CRIMINAL APPEAL No.288 of 2015

From what Court the appeal is The Judicial Magistrate of preferred I Class, Kurnool Number of the case in that Court Calendar Case No.932 of 2014

Number of the appeal C.A. No.288 of 2015

Name and description of the 1. Nayakanti Bajaranna, appellants S/o.late Mallepalle Thippanna, aged about 42 years

2. Nayakanti Yasodamma, W/o.Bajaranna, aged about 37 years

3. Nayakanti Jammakka, W/o.late Mallepalle Thippanna, aged about 61 years

All are Hindus and residents of Padidempadu village, Kurnool Mandal and District. Name and description of the State rep. by the Station House respondent Officer, Kurnool Taluk (U) Police Station. The sentence and law under The accused 1 to 3 are found which it was imposed in the guilty for the offences lower Court punishable under Sections 323 and 324 of Indian Penal Code and sentenced to pay fine of Rs.1,500/- each, in default of payment of fine, to undergo simple imprisonment for a period of one month for the offence punishable under Section 324 of Indian Penal Code and further sentenced to pay fine of Rs.500/- each, in default of payment of fine, to undergo simple imprisonment for a period of one month for the offence punishable under Section 323 of Indian Penal Code.

P.S.J. 2 C.A. 288 of 2015

Whether confirmed, modified or Reversed. reversed and if modified, the modification? The appeal is allowed, setting aside the judgment of conviction passed by the Court of Judicial

Magistrate of I Class, Kurnool in

Calendar Case No.932 of 2014,

dated 13-10-2015, consequently

acquitting the appellants of all the charges framed. The fine amount paid by the appellants shall be refunded to them by the trial Court after lapse of revision time. The bail bonds executed by the appellants shall remain in force for a period of six months.

Date of presentation 12-11-2015 Date of filing 26-11-2015 Date of notice issued by Court to 26-11-2015 appear Date of bail bond, if appellant -- has been let out on bail Date of appellants order to 16-12-2015 appear Date of hearing 28-06-2016 Date of judgment 01-07-2016

This appeal coming on 28-06-2016 for hearing before me in the presence of Sri Uma Hanumantha Rao, Advocate for the appellants and the Public Prosecutor for the respondent; having heard on both sides; upon perusal of the record and having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

With a request to put into scrutiny the judgment rendered by the Court of Judicial Magistrate of I Class, Kurnool in Calendar

Case No.932 of 2014 dated 13-10-2015, the appellants 1 to 3, who are the accused in the said Calendar Case, approached this Court by way of appeal.

P.S.J. 3 C.A. 288 of 2015

2. In the grounds of appeal, it is urged that the trial Court erred in accepting the evidence of PWs.1 to 5, which is contradictory with each other and that the trial Court failed to consider the material aspects in respect of the incident alleged to have been occurred, the aspect of causing injuries to PW1, the nature of injuries sustained and other facts and the trial Court gave wrong findings without appreciating the merits and circumstances of the case and as such, the judgment of the trial Court has to be set aside.

3. Notice given to the learned Public Prosecutor.

4. Heard on both sides.

5. Now the points for consideration are:

1. Whether the prosecution established before the trial Court beyond all reasonable doubt that the appellants committed the offences punishable under Sections 323 and 324 read with 34 of Indian Penal Code?

2. Whether there exists any infirmity in the judgment of the trial Court either in appreciating the facts of the case or in applying the established principles of law to the facts, as contended by the appellants herein and if so, to what relief the appellants are entitled to?

6. POINT Nos.1 and 2:

Stating that the trial Court committed a serious error in appreciating the facts of the case and in convicting the appellants herein, the learned Counsel for the appellants submitted that the prosecution miserably failed to establish the guilt of the appellants beyond all reasonable doubt and indeed, this is a case filed as a

P.S.J. 4 C.A. 288 of 2015 counter-blast to the complaint given by the first appellant, alleging that PW2 and others beat him, and the evidence of prosecution witnesses makes it clear that a false case is foisted against the appellants herein, but without considering all these facts, the

Judge of the trial Court simply convicted the appellants and

imposed find and therefore, the conviction itself is unsustainable.

Per contra, the learned Public Prosecutor contended that as the case of the prosecution is proved beyond all reasonable doubt, the appellants are convicted and only fine is imposed and therefore, the appellants approaching this Court again on appeal is highly unjustifiable.

The evidence produced by the prosecution before the trial

Court, i.e., evidence of PWs.1 to 5 and the documents under Exs.P1 to P4 is put to strict scrutiny, in the light of the grounds urged by the appellants herein. When the entire material is studied meticulously, this Court finds justification in the submission of the learned Counsel for the appellants. The punishment either by way of imposing substantive sentence or imposition of fine should only be when the guilt of the accused is proved beyond all reasonable doubt by the prosecution. But, this Court finds that in the case on hand, the prosecution miserably failed to establish the guilt of the appellants herein beyond all reasonable doubt. This view of this

Court exercising appellate jurisdiction is based on the following points.

(1) PW1 did not give complaint to the police

immediately after the alleged incident or within reasonable

time.

P.S.J. 5 C.A. 288 of 2015

As per the version of the prosecution, the incident occurred on 04-08-2014 at about 10.00 a.m. The contents of Ex.P3 F.I.R.

reveal that PW1 gave complaint to the police on 05-08-2014 at about 12.30 p.m. The reason projected by the prosecution for not giving the complaint within reasonable time is that the defacto- complainant, i.e., PW1 fell unconscious due to the injuries sustained and that she was shifted to Government General

Hospital, Kurnool and therefore, on the next day, she went to the

Police Station and gave complaint. PW1, during the course of chief- examination, gave evidence to that effect.

PW4, who alleged to have treated PW1, stated that PW1 received only an abrasion over the left elbow and an abrasion over the back and both those injuries are simple in nature. He also stated that PW1 was treated as an out-patient. Thus, as rightly submitted by the learned Counsel for the appellants, a person receiving two simple injuries, is not expected to go into an unconscious state and recover from the injuries on the second day.

That itself goes to show that there is a cloud of suspicion in the entire version of the prosecution.

(2) The place where the incident occurred is also not clear.

PWs.1 to 3 stated that the incident occurred in the fields, which are located at the outskirts of Gudur village. But, PW5, who investigated into the case, deposed that he visited the scene of offence, which is situated at Padidempadu village. During the

P.S.J. 6 C.A. 288 of 2015 course of cross-examination also, he stated that the place of occurrence is Padidempadu village. Thus, there is clear contradiction between the evidence of PWs.1 to 3 and the evidence of PW5 with regard to the place where the incident occurred.

Also, when PW1 states that there is onion crop aged about one month in their field as on the date of the incident, PW2 and

PW3 stated that while PW1 was sowing onion seeds, the incident occurred.

Thus, the place of occurrence is not established by the prosecution in clear terms.

(3) PW5, during the course of cross-examination, admitted that there is a counter case against PW2 and PW3. He also admitted that the incident in the counter case occurred on 02-08-2014. The submission of the learned Counsel for the appellants is that no incident occurred on 04-08-2014 and basing on the incident occurred on 02-08-2014, the complaint was given against PW2 and others by the first appellant and bearing that in mind, to implicate the appellants herein in a false case, PW1 and others foisted this false case against the appellants.

PW4, who alleged to have treated PW1, during the course of cross-examination, admitted that he did not mention the age of the injuries in the wound certificate. This statement probablizes the version projected by the learned Counsel for the appellants.

7. When the judgment of the trial Court is gone through, this

Court finds that without considering all these aspects and

P.S.J. 7 C.A. 288 of 2015 evaluating the evidence available on record in right perspective, the learned Judge of the trial Court has convicted the appellants herein. Therefore, this Court has no hesitation to hold that the judgment of the trial Court is unsustainable, as it is not in accordance with the rule governing the criminal jurisprudence that the case has to be proved beyond all reasonable doubt by the prosecution.

Thus, these two Points are answered accordingly.

8. In the result, the appeal is allowed, setting aside the judgment of conviction passed by the Court of Judicial Magistrate of I Class, Kurnool in Calendar Case No.932 of 2014, dated 13-10-2015, consequently acquitting the appellants of all the charges framed. The fine amount paid by the appellants shall be refunded to them by the trial Court after lapse of revision time.

The bail bonds executed by the appellants shall remain in force for a period of six months.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in open Court, this the 1 st day of July 2016.

PRINCIPAL SESSIONS JUDGE,

KURNOOL.

Typed and compared by me :

IN THE COURT OF THE PRINCIPAL SESSIONS JUDGE,

KURNOOL.

PRESENT: Smt. C.Sumalatha,

Principal Sessions Judge, Kurnool

Friday, the 1st day of July 2016

CRIMINAL REVISION PETITION No.15 of 2016

R.Venkata Ramana, S/o.Chalamaiah, aged 51 years, .. Revision Petitioner/ Resident of Maruthi Mega City, Accused No.1 Kurnool. Presently residing at Mathusree Apartment G-4, Neredmet, Ramakrishnapuram, Secunderabad. -Versus-

State by the Station House Officer,.. Respondent

Kurnool I-Town Police Station

Revision against the order rendered by the learned Special

Judicial Magistrate of I Class (for Prohibition & Excise), Kurnool in

Crl. M.P. No.7237/2015 in C.C. No.387/2012 dated 04-03-2016.

Between:

R.Venkata Ramana .. Petitioner

-A n d-

State rep. by Station .. Respondent

House Officer, Kurnool I-Town Police Station

This criminal revision petition coming on 28-06-2016 for hearing before me in the presence of Sri S.V. Krishna Reddy,

Advocate for the revision petitioner and the Public Prosecutor for the respondent; having heard on both sides; upon perusing the

P.S.J. 2 C.R.P. 15 of 2016 material available on record and having stood over for consideration till this day, this Court passed the following:

O R D E R

Projecting that the order rendered by the Court of Special

Judicial Magistrate of I Class (for Prohibition & Excise), Kurnool in

Crl. M.P. No.7237/2015 in C.C. No.387/2012 dated 04-03-2016 is illegal and unlawful, the revision petitioner, who is accused no.1 in

C.C. No.387/2012, approached this Court by way of revision.

2. The dismissal of the application filed seeking a direction to the defacto-complainant to produce the account copy of loan pertaining to V.C. Deluxe and the Project Report, resulted in the present revision.

3. In the grounds of revision, it is contended that the trial Court, without thoroughly examining the depositions of PWs.1 and 2, dismissed the application and the trial Court miserably failed to understand the importance of the documents, which were sought to be produced and the order of the trial Court resulted in miscarriage of justice and under law, the accused is entitled for fair trial and he should be given opportunity to present his case and as such, the order rendered by the trial Court has to be set aside by allowing the revision.

4. Notice given to the respondent.

P.S.J. 3 C.R.P. 15 of 2016

5. Heard on both sides.

6. Now the point for consideration is:

Whether there exists any infirmity in the impugned order that is rendered by the Court of Special

Judicial Magistrate of I Class (for Prohibition &

Excise), Kurnool in Crl.M.P. No.7237/2015 in C.C. No.387/2012, dated 04-03-2016, as contended by the revision petitioner herein, and if so, to what result?

7. P O I N T:

With a submission that all the findings given by the trial

Court in the impugned order are erroneous, the learned Counsel for the revision petitioner contended that the revision petitioner herein approached the trial Court, seeking a direction to the defacto-complainant to furnish the account copy of loan, which shows all the payments made by the revision petitioner, who is accused no.1 in the said criminal case, and if the said loan account is produced, it will be clear that the revision petitioner did not commit any offences whatsoever and that he made the payments of loan in time, as directed by the Bank authorities and furthermore, no prejudice will be caused to the respondent/complainant, but for the reasons best known to the trial Court, the said application was dismissed and therefore, the revision petitioner approached this

Court for redressal.

Per contra, the learned Public Prosecutor stated that sufficient material is produced before the trial Court in the form of evidence to show that the revision petitioner committed the offences charged and with a fear of being convicted, the revision petitioner is taking

P.S.J. 4 C.R.P. 15 of 2016 steps to drag on the proceedings one way or the other and the present revision is one of such tactics and therefore, the revision is not maintainable.

The material available on record reveals that the revision petitioner filed a petition, invoking Section 311 of Code of Criminal

Procedure Code, seeking a direction to the defacto-complainant to furnish the loan account with all the transactions of payment and also the Project Report, which were sent to the State Bank of India,

Head Office, Hyderabad for deciding the case and the said request was resisted by the respondent through a counter, in which it is contended that the revision petitioner committed default in repayment of loan and inspite of issuing legal notices several times, the revision petitioner did not respond and the same is brought on record and as such, the petition filed under Section 311 of Code of

Criminal Procedure Code is not maintainable.

The learned Judge of the trial Court, discussing at length the merits of the case, came to a conclusion that the request of the revision petitioner herein cannot be honoured and resultantly dismissed the criminal miscellaneous petition that is filed by the revision petitioner herein.

8. The law governing the power of the Court to summon any witness and to permit production of any document or anything by the accused are provided under Sections 311 and 243 of Code of

Criminal Procedure. For better appreciation of the facts of the case, both the provisions are extracted below:

P.S.J. 5 C.R.P. 15 of 2016 “311. Power to summon material witness, or examine person present

Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case.” “243. Evidence for defence.

(1) The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the

Magistrate shall file it with the record.

(2) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross- examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing:

Provided that, when the accused has cross- examined or had the opportunity of cross- examining any witness before entering on his defence, the attendance of such witness shall not be compelled

P.S.J. 6 C.R.P. 15 of 2016 under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice.

(3) The Magistrate may, before summoning any witness on an application under sub- section (2), require that the reasonable expenses incurred by the witness in attending for the purposes of the trial be deposited in Court.”

The established principle of criminal jurisprudence is that the

State, which initiates criminal proceedings against any individual, has got absolute power to produce the evidence of it’s choice and the accused will thereafter be given an opportunity to adduce his evidence, if any, and the accused has got no right under the Code of Criminal Procedure to compel or to seek the Court to compel the

State/complainant to produce the evidence of any witness or any document/material object and if the accused intends to examine any person or to produce any document of his choice, he has to file an application under any of the provisions referred supra and produce such evidence before the Court to establish his innocence.

The accused, as earlier discussed, sought the Court to issue a direction to the other party to compel production of any document.

Though the learned Judge of the trial Court did not discuss all these aspects, this Court is of the humble view that the conclusion arrived at is justifiable. Therefore, this Court is of the view that the request of the revision petitioner herein to set aside the order of the trial Court cannot be honoured. However, this

Court, basing on the facts and circumstances of the case, can only order the trial Court to entertain an application, which, if filed by

P.S.J. 7 C.R.P. 15 of 2016 the revision petitioner herein, under Section 243 (2) of Code of

Criminal Procedure to issue process for production of the documents sought for.

This Point is thus answered accordingly.

9. In the result, the revision petition stands dismissed, giving liberty to the revision petitioner herein to move an appropriate application before the trial Court under Section 243 (2) of Code of

Criminal Procedure for issuance of process to the concerned person, in whose custody, the documents sought for are, for production of the documents and on such application being filed, the learned Judge of the trial Court shall dispose-of the said application basing on its merits, un-influenced by any of the observations that are made by this Court in the present revision petition.

Orders passed accordingly.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in open Court, this the 1 st day of July 2016.

PRINCIPAL SESSIONS JUDGE,

KURNOOL.

Typed and compared by me :

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE,

KURNOOL.

PRESENT: Smt. C.Sumalatha,

Principal District Judge, Kurnool.

Friday, the 1st day of July 2016.

E.P. No.4 of 2016 in C.P. No.SB/CP443 of 2011

M/s.IndusInd Bank Ltd., rep. by its .. Petitioner/

G.P.A. holder K.Ravi Shankar Decree-holder -Versus-

1. A.Venkateshwara Rao .. Judgment-

2. M.Naga Maddileti debtors

This petition coming on 01-06-2016 for hearing before me in the presence of Sri G.Karunakara Rao, Advocate for the petitioner,

Sri D.A.Anees Ahmed and Sri A.V. Thimmappa, Advocates for the first respondent and the second respondent having remained ex parte; upon perusing the material available on record and having stood over for consideration till this day, this Court passed the following:

O R D E R

This execution petition is filed under Order XXI Rules 37 and 38 of Civil Procedure Code, seeking the Court to send the

Judgment-debtors to civil prison on their failure to satisfy the E.P.

amount.

2. The contents in the affidavit given in support of the petition, go to show that the execution petition is filed for recovery of the

PDJ EP 4 / 2016 in C.P. No.SB.CP443/2011 2 decretal amount from the Judgment-debtors and the Judgment- debtors are jointly and severally liable to pay the decretal amount along with interest and they are intentionally avoiding to pay the said amount, even though they are having sufficient means to repay the same and as such, the Judgment-debtors have to be sent to civil prison on their failure to satisfy the E.P. amount.

3. Notice served upon the Judgment-debtors 1 and 2.

4. Judgment-debtor no.2 remained ex parte.

5. Judgment-debtor no.1 filed counter, submitting that he is a unemployee and he does not have any movable and immovable properties and further, he has no means to discharge the E.P. debt and as such, the execution petition has to be dismissed with costs.

6. During the course of enquiry, the Decree-holder examined

PW1 on his side and Judgment-debtor no.1 did not adduce any evidence.

7. Gone through the contents of the written arguments filed by both parties to the proceedings.

8. Now the points for determination are:

1. Whether the Judgment-debtors 1 and 2 having sufficient means, failed to discharge the amount due under the decree?

2. Whether there exist any justifiable grounds to send the Judgment-debtors 1 and 2 to civil prison, as prayed for?

PDJ EP 4 / 2016 in C.P. No.SB.CP443/2011 3

9. POINT Nos.1 and 2:

In the written arguments filed, the learned Counsel for the

Decree-holder contended that the Judgment-debtors have duty to repay the loan amount due and as they have committed default, the matter reached here and the Judgment-debtors are having immovable properties and also movable properties and both the

Judgment-debtors are earning Rs.15,000/- to Rs.20,000/- per month and it is for the Judgment-debtors to prove that they have no properties by entering into the witness box, but they did not do so and as such, the execution petition has to be allowed with costs.

On the other hand, the learned Counsel for Judgment-debtor no.1, in his written arguments, contended that Judgment-debtor no.1 has no means to discharge the amount due and when

Judgment-debtor no.1 has specifically pleaded that they have no means to discharge the amount due, the burden is on the Decree- holder to prove by filing necessary documents that there are sufficient means and the oral testimony of PW1 is not useful and as such, the execution petition has to be dismissed.

Nowhere the Decree-holder disclosed the actual occupation and earnings of Judgment-debtor no.1, likewise, they did not even state the slightest details of the immovable properties possessed by

Judgment-debtor no.1 and the same is the case with value movable property. Only because Judgment-debtor no.1 did not enter into the witness box and Judgment-debtor no.2 remained ex parte, their detention in civil prison cannot be ordered.

PDJ EP 4 / 2016 in C.P. No.SB.CP443/2011 4

In the decision which is rendered by the Hon’ble Apex Court, which is reported in 1980 AIR 470 in a case between “Jolly George

Verghese & another -Versus- The Bank of Cochin”, Their Lordships held as follows :

“The simple default to discharge is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past or, alternatively, current means to pay the decree or a substantial part of it. The provision emphasizes the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree.”

Thus, relying upon the law governing the field and the discussion that went on supra, this Court is of the view that the execution petition filed for arrest of the Judgment-debtors cannot be allowed.

These Points are, thus, answered accordingly.

10. In the result, the execution petition stands dismissed without costs.

Dictated to the Stenographer, transcribed by him, correct and

pronounced by me in open Court this the 1 st day of July 2016.

PRINCIPAL DISTRICT JUDGE,

KURNOOL.

PDJ EP 4 / 2016 in C.P. No.SB.CP443/2011 5

APPENDIX OF EVIDENCE

Witnesses examined

For Petitioner/Decree-holder:

PW1: N.Sanjeeva Rayudu, S/o.N.Sanjanna, Legal Executive ARD in M/s.IndusInd Bank Ltd., Kurnool.

For Respondents/Judgment-debtors:

-None-

Exhibits marked

For Petitioner/Decree-holder:

-Nil-

For Respondents/Judgment-debtors:

-Nil-

PRINCIPAL DISTRICT JUDGE,

KURNOOL.

Typed and compared by me :

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE,

KURNOOL.

PRESENT: Smt. C.Sumalatha,

Principal District Judge, Kurnool.

Tuesday, the 5th day of July 2016

ORIGINAL SUIT No.129 of 2015

K.Siva Naga Sowmya Deepthi .. Plaintiff

-Versus-

N.Satyanarayana .. Defendant

This suit coming on this day for final hearing before me in the presence of Sri M.Srinivasan, Advocate for the plaintiff and the defendant having set ex parte and upon perusal of the material available on record, this Court delivered the following:

J U D G M E N T

This is a suit for realization of Rs.17,20,000/- together with interest and costs from the defendant basing on a promissory note dated 31-8-2012 for a sum of Rs.10,00,000/-, which was alleged to have been executed by the defendant in favour of the plaintiff.

2. The plaint pleadings go to show that on 31-08-2012, the defendant borrowed a sum of Rs.10,00,000/- in cash from the

P.D.J. O.S. 129 of 2015 2 plaintiff, promising to repay the same with interest at the rate of 24% per annum and executed the suit promissory note for

Rs.10,00,000/- in favour of the plaintiff and inspite of repeated oral demands made by the plaintiff, the defendant did not choose to repay the same.

3. Summons served upon the defendant.

The defendant, having received the summons, engaged an

Advocate to defend him in this suit. But, subsequently, as the defendant failed to file his written statement, though sufficient time was granted, he was set ex parte.

4. The plaintiff filed her chief examination affidavit as PW1 and got marked Ex.A1 on her side.

5. Heard.

6. Now the point for determination is:

Whether the plaintiff is entitled for a decree for a sum of Rs.17,20,000/- with interest and costs against the defendant, as prayed for?

7. P O I N T:

It is the contention of the learned Counsel for the plaintiff that on 31-08-2012, the defendant borrowed a sum of

Rs.10,00,000/- in cash from the plaintiff, promising to repay

P.D.J. O.S. 129 of 2015 3 the same with interest at the rate of 24% per annum and executed Ex.A1 suit promissory note in favour of the plaintiff and inspite of repeated demands made by the plaintiff, the defendant did not choose to repay the same and hence, the plaintiff filed the suit for recovery of suit amount from the defendant.

Perused the chief examination by affidavit of PW1 and

Ex.A1 document. As already stated, the defendant, having received the summons in this suit, remained ex parte and having engaged an Advocate to defend him in this suit, did not choose to file his written statement, though sufficient time was granted. Non-filing of the written statement by the defendant probablizes the version of the plaintiff. I am satisfied that the defendant, having borrowed amount from the plaintiff under

Ex.A1 suit promissory note, failed to repay the same and hence, the plaintiff is entitled for a decree, as prayed for.

This Point is thus answered in favour of the plaintiff.

8. In the result, the suit is decreed with costs, directing the defendant to pay the plaintiff a sum of Rs.17,20,000/- (Rupees seventeen lakhs twenty thousand only) together with interest at the rate of 12% per annum from the date of suit till the date of decree and subsequent interest at the rate of 6% per annum

P.D.J. O.S. 129 of 2015 4 from the date of decree till the date of realization on the

principal sum adjudged, i.e., Rs.10,00,000/-.

Dictated to the Stenographer, transcribed by him, corrected

and pronounced by me in open Court, this the 5 th day of July 2016.

Principal District Judge,

Kurnool.

APPENDIX OF EVIDENCE

Witnesses examined

For Plaintiff:

PW1: K.Siva Naga Sowmya Deepthi, W/o.K.Raja Ramana, resident of Kurnool City and District.

For Defendant:

-None-

Exhibits marked

For Plaintiff:

Ex.A1: Promissory note dated 31-08-2012.

For Defendant:

-Nil-

Principal District Judge,

Kurnool.

Typed and compared by me