Smt D.Sharmila

IN THE COURT OF THE II ADDITIONAL JUDICIAL MAGISTRATE OF FIRST

CLASS, KURNOOL.

PRESENT:- Smt. D.SHARMILA, II Addl. Judicial Magistrate of I Class, Kurnool.

Tuesday, 16 th day of August, 2022

C.C. No.1147/2019

Between:

D.Venkatesh, S/o D.Ashok Rao, Hindu, Aged about 39 years, Business,

H.No.26/393, Chinna Market, Krishna. . . . .. Complainant.

AND

Suresh Babu Prathapgari, S/o P.Shankara Sharma, Hindu, aged about 40 years, H.No.132-3-1-A2, Venkatadri Nagar, B-Camp Post, Kurnool Town.

. . . . . .. Accused.

This case is coming on 12.08.2022 for final hearing before me in the presence of D.Shankar Singh, Advocate for the Complainant and of

Sri. P.Muralidhar and Sri. T.Chandrasekhar Advocates for the Accused and the matter having stood over for consideration till this day and upon hearing arguments on both sides this Court delivered the following:

J U D G M E N T

01.The Complainant filed the complaint against the accused for the offence punishable U/s.138 of Negotiable Instrument Act.

02.The factual matrix of the complaint are as follows:

On 10.10.2017 the accused had borrowed an amount of

Rs.2,00,000/- from the Complainant for his family necessities and executed a promissory note on the same day promising to repay the same with interest at 24% p.a. and accordingly the accused paid interest regularly for three months and subsequently, on 21.01.2018 the accused again borrowed an amount of Rs.2,00,000/- from the complainant and promised to repay the entire debts within one month, but he failed to keep up his promise and did not pay back the borrowed amount of Rs.2,00,000/-, dt.21.01.2018 and also stopped paying the debts due under the promissory note dt.10.10.2017. On repeated demands by the complainant, he issued a cheque bearing No.

518379, dt.07.02.2019 for an amount of Rs.4,96,000/- of State Bank of India,

Railway Station road branch, Kurnool, towards interest and principal under the above-said transactions dt.10.10.2017 and dt.21.01.2018. The

Complainant had presented the same through his account in Union Bank of

India, Kurnool main branch, Kurnool but the same got returned with an endorsement "Exceeds Arrangement" with a return memo dt:13.02.2019.

Thereafter, on 26.02.2019 complainant got issued a legal notice to the accused calling upon him to repay the cheque amount. The accused received the notice. But he did not pay the amount due under the cheque to the complainant and issued a reply notice with all false allegations to evade his liability. Therefore, the accused is liable to be punished U/s 138 of N.I.Act.

03.The cognizance was taken for the offence punishable U/s.138 of

N.I. Act against the accused. On the appearance of the accused, copies of documents were furnished to him as required u/s.207 of Cr.P.C.

04.The Accused was examined U/s.251 of Cr.P.C. The accused denied the contents of the complaint and documents. The substance of the accusation against him for the offence punishable U/s 138 of N.I. Act was read over and explained to him in Telugu, for which he denied the offence, pleaded not guilty, and claimed to be tried.

05.On behalf of the complainant, the Complainant himself is examined as P.W.1 and got marked Exs.P1 to P6.

06.After the closure of Prosecution evidence, the accused was examined U/s.313 Cr.P.C and the accused denied the incriminating evidence that appeared against him and reported he has defence evidence. The accused did not produce any evidence even though sufficient time was granted and later he reported no defence evidence.

07.Heard arguments of both the learned counsel for the complainant and the accused, apart from the written arguments of the accused. Perused the material on record

08.Now, the point for consideration is:

“Whether the Complainant is able to bring home the guilt

of the Accused beyond all reasonable doubt or not”?

POINT:-

09.To prove the guilt of the accused for the offence punishable under section 138 of N.I. Act, the complainant has to fulfill the following conditions:

(i)that the cheque was drawn on the account of the accused for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt.

(ii)that the cheque so issued was dishonoured due to insufficiency of funds or any other reason.

(iii)that the drawee issued a notice under section 138 of N.I. Act, within the statutory period.

(iv)that the complaint was filed within the period of limitation.

10.The learned counsel for the complainant argued that the evidence of P.W.1 coupled with Exs.P.1 to P6 established the guilt of the accused beyond all reasonable doubts and the complainant has satisfied the mandatory provisions of the N.I. Act and therefore, the accused is liable to be convicted. Per contra, the learned defence counsel argued that the accused borrowed the amounts from the complainant. At the time of lending the said amounts, the complainant has obtained a blank signed cheque and promissory notes for security purpose only. Later, though the accused had paid the entire amount with up-to-date interest to the complainant, he did not return the promissory Notes and the cheque stating that they were misplaced. Taking advantage of the said blank Promissory Notes and cheque, the complainant has filed this complaint to get wrongful gain from the accused, and hence accused is liable to be acquitted.

11.In view of the rival contentions of both parties to the complaint, this court has gone through the entire evidence on record. To prove the case of the complainant, the complainant was examined as P.W.1, he reiterated the contents of his complaint in his chief-examination affidavit and got marked Exs.P1 to Ex.P6 on his behalf. Now, let us scrutinize the documents relied on by the complainant to examine the compliance with statutory requirements envisaged under section 138 of N.I. Act. On perusal of the examination-in-chief of P.W.1, it seems that the accused borrowed a sum of

Rs.2,00,000/- from the complainant on 21.01.2018 under Ex.P6 promissory note to pay the same with interest @24% p.a. and he had paid interest regularly for three months and subsequently on 21.01.2018 the accused again borrowed an amount of Rs.2,00,000/- from him towards hand loan, but he failed to pay back the borrowed amounts of Rs.2,00,000/ dt.21.01.2018 and also the debt due under the Ex.P6 promissory note dt.10.10.2017 and that on repeated demands, accused issued EX.P1 cheque, dt.07.02.2019 for

Rs.4,96,000/- towards interest and principal under the above said borrowings dt.10.10.2017 and dt:21.01.2018. The evidence of P.W.1 further reveals that he presented EX.P1 cheque in Union Bank of India, Kurnool main branch,

Kurnool within its validity period, and the same is dishonored with the endorsement "Exceeds Arrangement" and the same is well proved by exhibiting Ex.P2. The learned defence counsel did not dispute the presentation of Ex.P1 cheque and the contents of Ex.P2 cheque return memo and Ex.P2 return memo corroborates the evidence of P.W.1 concerning the presentation of Ex.P1 for collection. The defence counsel could not shatter the evidence of P.W.1 and disprove the contents of Exs.P1 and P2 to prove the presentation of Ex.P1 for collection and the same was dishonored due to the reason of "Exceeds Arrangements". Therefore, the combined evidence of

P.W.1 and contents of Exs.P1 and P2 proved that the complainant presented

Ex.P1 cheque, and the same was dishonored due to exceeds arrangements in the account of the accused.

12.The evidence of P.W.1 further discloses that the complainant got issued a legal notice to the accused on 26.02.2019. The complainant got marked the office copy of the legal notice as Ex.P3 and the postal receipt as

Ex.P4. The evidence of P.W.1 coupled with EX.P3 to Ex.P5 discloses the legal notice was addressed to the address of the accused. The accused did not dispute the address particulars mentioned in Ex.P3. Further, he did not deny the issuance of Ex.P3. Further, there is no suggestion to P.W.1 that there is no proper service of legal notice as contemplated under N.I. Act. I have gone through Ex.P3 office copy of the legal notice. Ex.P3 is self-contained and it discloses the requisite information. Therefore, these admissions conclusively prove that the accused received the notice given by the complainant marked as Ex.A3. Further, the contents of Ex.P3 are sufficient to give ample information to the accused concerning the transaction covered under Exs.P1 and P6. Furthermore, the accused did not speak anything during the examination under s.313 Cr.P.C. about the service of the legal notice and the contents of the legal notice and in turn the accused issued Ex.P5 reply notice to the complainant. Therefore, the evidence of P.W.1 coupled with the contents of Exs.P3 to P5 proved that the complainant got issued a legal notice to the accused, and the accused received the same. The evidence further discloses that having received the notice the accused did not choose to pay the amount due under Ex.P1 cheque and the accused issued a reply notice, dt.22.03.2019 with false and baseless allegations to evade his liability, and thus the complainant was obliged to file the present complaint.

A scrutiny of the documents relied on by the complainant goes to show that, statutory requirements of sec.138 of N.I. Act is complied with and this complaint is filed within time. Thus this Court finds that the complainant fulfilled all the above ingredients to file this complaint.

13.The learned counsel for the complainant argued that EX.P1 and evidence of P.W.1 proved the debt due under Ex.P6 and hand loan transaction dated 21.01.2018 and that Ex.P1 was issued to discharge the amount due under the said transactions. On perusal of Ex.P6, it shows that the accused himself scribed Ex.P6 promissory note. Ex.P6 and evidence of

P.W.1 further reveal that on 10.10.2017 and 21.01.2018, the accused borrowed an amount of Rs.2,00,000/- each from the complainant. It was suggested to the complainant that the accused never borrowed any amount under Ex.P6 promissory note and hand loan, dated 21.01.2018, and Ex.P1 is a created one. It was further suggested that there is a difference in handwriting and signature in Ex.P6 and are filled with different ink. It is an admitted fact that the complainant did not choose to send Ex.P6 promissory note to a handwriting expert for comparison of the signature and the handwriting of the accused. It was suggested to complainant/P.W.1 that there is no legally enforceable debt under Ex.P1 and Ex.P1 has no legal sanctity.

Ex.P6 is dated 10.10.2017 and Ex.P1 is dated 07.02.2019. Further, there is no specific denial of the signature of the accused in Ex.P1 and Ex.P6. The only contention of the accused is that the accused never borrowed the amount from the complainant and the blank signed promissory notes and cheque were issued by the accused in favour of the complainant towards security.

14.On perusal of the record, it reveals that the accused in his

Section 313 of Cr.P.C. examination, did not deny his signature in Ex.P1- cheque and Ex.P6 promissory note. Further, it is not the contention of the accused that he does not hold an account in SBI Bank, Railway station road

Branch, Kurnool, and that the cheque bearing No.518379 does not belong to him. Therefore, in absence of denial of signature in Ex.P1 and P6 by the accused, it can be presumed that Ex.P1 and P6 were executed by the accused. Further, the counsel for the accused in his written arguments admitted to the issuance of the cheque by the accused. Therefore, it can be inferred that Ex.P1 was issued by the accused and it contains the signature of the accused. Once execution of Ex.P1 is proved the presumption under section 139 of the NI Act would come into effect. At this juncture, the court relied on the observation of the Hon'ble Supreme Court in Rangappa Vs.

Mohan reported in AIR 2010 SC 1898, that " Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under section 139 of the Negotiable Instruments Act has to be raised by the court in favour of the complainant. The presumption referred to section 139 of the NI Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption.”

15.Relying on the above mandate laid down by three Judge bench of the Hon'ble Supreme Court, as the accused in this case did not deny his signature in Ex.P1, this Court is inclined to draw the statutory presumptions enshrined under section 139 of N.I. Act.

16.However, the presumption referred to in Section 139 of the Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption. What is required to be established by the accused to rebut the presumption is different in each case and the given circumstances, but the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the accused is required to be proved a preponderance of probabilities that is believable and acceptable by the court. The Accused had agreed that he had borrowed the entire amount mentioned above, in his Reply Notice at last para of Ex.P5 Reply Notice. The same has been again suggested by the Accused Counsel in the Cross

Examination of P.W1. But in the Cross of P.W.1, they changed their version as the complainant had collected the blank cheque from the Accused towards security for gold schemes. So it clearly shows that there are a lot of

Contradictions in the version of Accused himself. In the said circumstances, there is no force in the arguments of the defence counsel that the transaction under Ex.P1 is not a legally enforceable debt. It is further contention of the accused that the complainant misused his blank signed

EX.P1 cheque and the complainant fabricated it without his consent and filed the present complaint. But there is no base to prove the said allegation. It is further admitted fact that the accused did not file any complaint against the complainant stating that the complainant fabricated Ex.P1 cheque and launched prosecution against him to get wrongful gain from him. The transactions under Ex.P6 and P1 took place in the year 2017 to 2019. Till now the accused did not raise his litter finger and has taken steps against the complainant to strengthen his story.

17.The learned defence counsel contends that there is no legally enforceable debt due to the complainant by the accused as the alleged transaction under Ex.P6 is not proved and he relied upon K.Venkata

Krishna Prasad Vs Peram Sai Swarupa, Vijayawada, and another

(2017 (1) ALT (Crl.) 259 (A.P.), wherein the Hon’ble High Court of

Judicature at Hyderabad was pleased to give finding about non-filing of income tax returns showing the debt covered and none examination of attestor and scribe. The Hon’ble High Court was also pleased to give a finding about the discrepancy of a mode of payment and proving of legally enforceable debt between the complainant and accused. Whereas in the present case the accused himself has scribed Ex.P6 and he did not deny his signature in Ex.P6, and hence the complainant can establish that, there was legally enforceable debt and because of the admissions of the accused about his signature on the cheque and pronote, and that the citation which was relied upon by the learned defense counsel will not help the case of the accused. Further, the promissory note not being a compulsorily attestable document, it is not incumbent on the complainant to examine the attestor of

Ex.P6, and if no attestor was examined, the sole evidence of P.W.1, if found consistent and trustworthy establishing his contentions to the standard of preponderance of probabilities, can be safely relied upon.

18.The learned defence counsel further relied on the citation "Smt.

R N Jaya W/O Lakshminarayana vs Smt H N Shankunthala" reported in

CRL.RP.No.995/2009 and contended that according to the complainant, the cheque was issued on 07.02.2019 and as on that date there was no legally recoverable debt due by the accused to the complainant. When the past consideration under the promissory note is barred by time and no consideration is passed on under the cheque then there is no recoverable debt due by the accused to the complainant. Admittedly this complaint was filed against the accused based on Ex.P1 within the limitation period.

Therefore, it is sufficient to show that by the date of execution of Ex.P1- cheque, there is a liability on the part of the accused in respect of the amount due under Ex.P6-promissory note. Therefore, the contention of the accused that Ex.P6 is barred by limitation does not affect this complaint as

Ex.P1 was issued during the subsistence of liability of the accused under

Ex.P6. Once the execution of Ex.P1-cheque is proved, it is presumed that

Ex.P1 was issued for discharge of legally enforceable debt. The facts in the above citations do not apply to the case on hand as it was already held in preceding paras that Ex.P1-cheque was issued for discharge of legally enforceable debt.

19.The learned counsel for the accused, further relied upon the judgment "Chirag Travels (P) Ltd. vs . Ashwani Kumar And Anr". The facts in this citation does not apply to the case on hand as it was already held in preceding paras that Ex.P1-cheque was issued for discharge of legally enforceable debt.

20.The accused has taken the plea that the cheque was issued as security. In I.C.D.S. Vs. Beena Shabeer & Anthr; (2002) 6 SCC 426, the

Hon’ble Apex Court has held that:

“The commencement of the Section stands with the words "Where any cheque" The above noted three words are of excrement significance, in particular, by reason of the user of the word "any"--the first three words suggest that in fact for whatever reason if a cheque is drawn on an account maintained by him with a banker in favour of another person for the discharge of any debt or other liability, the highlighted words if read with the first three words at the commencement of Section 138, leave no manner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the same stands returned by the banker unpaid. The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well.”

21.Thus even if the contention of the accused that the cheque-in- question was issued as security is believed, then also as per the ratio as laid down in I.C.D.S. Vs. Beena Shabeer & Anthr; (supra), security cheque will also come under the purview of section 138 of the negotiable instruments act.

22.As per section 118 of the NI Act it is presumed until the contrary is proved that every Negotiable Instrument is made or drawn for consideration on the date appears on the instrument, and every holder of a negotiable instrument is the holder in due course. Further U/s. 139 of NI Act it shall be presumed unless the contrary is proved that the holder of a cheque received it for the discharge of the legally enforceable liability or debt. The complaint produced Exs.P1 and P6 from his custody. The accused took the plea of fabrication but he has not adduced any evidence to prove the same. Further, an evasive denial is not sufficient. The complainant discharged the initial burden casts upon him through oral and documentary evidence. Therefore, in view of the presumptions under Section 118 and 139 of the NI Act the burden lies on the accused to rebut the legal presumptions and to disprove the evidence on record. The evidence of P.W.1 coupled with the contents of Exs.P1 to P6 categorically established that the accused borrowed the sum of Rs. 2,00,000/- from P.W.1 under Ex.P6 and again a hand loan for an amount of Rs.2,00,000/- on 21.01.2018 and to discharge the said amounts, he issued Ex.P1 towards the satisfaction of the debt under Ex P6 and hand loan transaction dated 21.01.2018. There is no material on record to discredit the evidence of P.W.1 and contents of Exs.P1 to P6. The evidence of P.W.1 stood to the cross-examination and was worth credence. The accused has not adduced any evidence to rebut the presumptions and to disprove the evidence on record. Even he could not elicit facts in cross- examination to disprove the evidence of P.W. 1 and the contents of Exs.P1 to

P6.

23.The defence counsel argued that the accused misused his black signed promissory note and cheque and utilized them to launch prosecution against him. But there is no evidence whatsoever to prove the alleged contention of the accused. Further at the stage of defence arguments, the accused agreed before the court that he has to pay the cheque amount to the complainant and filed a Memo dated 28.07.2022 to that effect. Thus the

Memo dated 28.07.2022 filed by the Accused also stands as Crucial Evidence in which the Accused himself agreed to his guilt and also agreed to pay the entire cheque amount. Therefore, the evidence of P.W.1 coupled with Exs.P1 to P6 and presumptions u/s. 118 and 139 NI Act proved that there is an existence of legally enforceable debt under Ex.P1 and the accused issued

Ex.P1 to discharge the said debt beyond all reasonable doubt. Nothing is on record to discard the evidence of P.W.1. Further it is proved that the legal notice was served on the accused and the cheque was dishonored due to the reason of Exceeds Arrangement. On the other hand, the accused could not substantiate the defence contentions and the defence contentions are proved as baseless and invented for the defence, and thus the same is liable to be rejected. Because of the above discussion, this Court has come to an ineluctable conclusion that the accused has failed to rebut the presumption under Section 139 of N.I.Act stood in favour of the complainant, which makes this Court conclude that the accused issued the cheque in question under

Ex.P1 without having a sufficient amount in his account, which attracts the offence under Section 138 of N.I.Act. Hence, this point is answered accordingly.

24. In the result, the accused is found guilty of the offence punishable under Section 138 of N.I. Act and thereby he is convicted under

Sec.255(2) of Cr.P.C.

Directly typed to dictation to the Stenographer, transcribed by him, corrected and pronounced by me in open Court, on this the 16 th day of August, 2022.

Sd/-.D.Sharmila,

II Addl. Judicial Magistrate of I Class, Kurnool.

25.When the accused is heard on question of sentence to be imposed on him, he pleaded mercy. He submitted that he has old aged mother who is complete bedridden and she is depending on him and in his absence there is no one to look after his old aged mother. Hence Accused prayed to take lenient view.

26.In the facts and circumstances of the case, I feel that it is not a fit case to invoke provisions of Probation of Offenders Act or Section 360

Cr.P.C. But considering the facts and circumstances of the case, and also the above submission of the accused, I am inclined to take a lenient view in sentencing the accused.

27.However taking into consideration the submission of convict, amount of cheque and surrounding circumstances, I took balanced view in sentencing the accused. Accordingly, the accused is sentenced to undergo simple imprisonment for a period of 3 months and he is directed to pay compensation of Rs.4,96,000/- (Rupees Four Lakhs Ninety Six Thousand only) i.e. cheque amount to the complainant, in default to suffer simple imprisonment for 2 months for the offence Under Section 138 of Negotiable

Instruments Act. The remand period, if any, undergone by the accused shall be given setoff Under Section 428 Cr.P.C.

28.The accused is informed of his right to prefer an appeal before

Hon’ble Sessions Court against this judgment and also enquire whether he is

having means to prefer an appeal or not for which he stated that he has means.

Directly typed to dictation to the Stenographer, transcribed by him, corrected and pronounced by me in open Court, on this the 16 th day of August, 2022.

Sd/-.D.Sharmila,

II Addl. Judicial Magistrate of I Class, Kurnool.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Complainant:- For Accused:-

P.W.1 : D.Venkatesh None

DOCUMENTS MARKED:

For Complainant:-

Ex.P1: Original Cheque Bearing No.518379, dt.07-02-2019 for Rs.4,96,000/- drawn on State Bank of India, RS Road Branch, Kurnool

Ex.P2: Original Cheque Return Memo, dt.13-02-2019

Ex.P3: Office Copy of Legal Notice, dt.26-02-2019

Ex.P4: Postal receipt, dt.01-03-2019

Ex.P5: Reply Notice, dt.22-03-2019

Ex.P6: Original Promissory Note, dt.10.10.2017 for Rs.2,00,000/-

For Accused:-

-Nil-

Sd/-.D.Sharmila,

II Addl. Judicial Magistrate of I Class,

Kurnool.

CALENDAR AND JUDGMENT

DISTRICT OF: KURNOOL.

CALENDAR OF CASES TRIED BY THE II ADDL. JUDICIAL MAGISTRATE

OF FIRST CLASS :: AT KURNOOL.

Date of Report orApprehen-ReleasedCommence-Close ofSentence on bail Complaintsion ofment of trialtrialor Order Offence accused 10.10.2015-04-2019----02-11-202122.07.2016.08.2022 1722

Name of II Addl. Judicial Magistrate of First Class, Kurnool. the court

CalendarC.C No.1147/2019 Case No.

Complain-D.Venkatesh, S/o D.Ashok Rao, Hindu, ant Aged about 39 years, Business, H.No.26/393, Chinna Market, Krishna.

ParticularsSuresh Babu Prathapgari, S/o P.Shankara Sharma, of theHindu, aged about 40 years, H.No.132-3-1-A2, accusedVenkatadri Nagar, B-Camp Post, Kurnool Town.

OffenceU/s.138 of Negotiable Instruments Act.

FindingFound Guilty.

SentenceAccused is sentenced to undergo simple imprisonment for a period of 3 months and he is directed to pay compensation of Rs.4,96,000/- (Rupees Four Lakhs Ninety Six Thousand only) i.e. cheque amount to the complainant, in default to suffer simple imprisonment for 2 months for the offence Under Section 138 of Negotiable Instruments Act. The remand period, if any, undergone by the accused shall be given set-off Under Section 428 Cr.P.C.

Explanation for delay:-Non production of the witnesses.

Sd/-D.Sharmila,

II Addl. Judicial Magistrate of I Class, Kurnool.

Copy submitted to:

The Hon’ble Chief-Judicial Magistrate-cum-Principal Assistant Sessions Judge, Kurnool.

1

IN THE COURT OF THE II ADDL. JUNIOR CIVIL JUDGE::KURNOOL

PRESENT:Smt. D.Sharmila, II Additional Junior Civil Judge, Kurnool.

Friday, 12th day of August, 2022

O.S.No.768/2015

Smt.S.Udayasree, W/o.G.Seshadri, aged about 58 years, Hindu, Housewife, R/o.H.No.50-355A, Arora Nagar, B.Camp, Kurnool City … Plaintif

Versus

S.Thanish, S/o.Late S.C.Subhash, aged about 62 years, Hindu, R/o.H.No.87/34, Sri Lakshmi Nagar, B.Camp, Kurnool City … Defendant

This suit is coming on 10.08.2022 for final hearing before me in the presence of Sri Kapu Rama Krishna Reddy, Advocate for the plaintif and Sri V.V.Krishnam Raju, Advocate for the defendant, after perusal of the material papers available on record and after hearing the counsel for plaintif and defendant, this court delivered the following:

:: JUDGMENT ::

1.This suit is filed by the plaintif against the defendant for a suit amount of Rs.25,000/- for arrears of rent from May 2015 to September 2015 at the rate of Rs.5,000/-per month and grant subsequent interest from the date of suit till the date of realization and costs of the suit.

2.Brief facts of the plaint are that, the plaintif is the absolute owner of the suit schedule house bearing H.No.87/34, B.Camp and she acquired title to the same under Registered Will dated 07.02.2015 executed by her father in her favour and after the death of her father i.e., on 06.03.2015 she acquired the house and she was in peaceful possession and enjoyment of the same. Plaintif is the sister of the defendant, who is tenant of the plaintif and the amount of rent is fixed at Rs.5,000/- per month under an oral agreement and he joined on 03.04.2015 and since the date of joined he did not pay the rent and committed default from 2

May 2015 to September 2015 and the plaintif demanded to pay the arrears of rent including the existing tenancy month rent but the defendant failed to pay the same and hence, the plaintif got issued a legal notice on 10.09.2015, the defendant received the notice and kept quiet and failed to pay the arrears of rent. Hence the suit.

3.The defendant filed written statement denying the plaint averments and inter alia stating as under:-

The father of the plaintif and defendant never executed any Will on 07.02.2015; the plaintif created the Will dt.07.02.2015 for this case, as there is no Will in her favour, and never in possession of the house bearing No.87/34, Kurnool. The defendant is not the tenant of the house bearing No.87/34, Kurnool; there is no oral or written agreement between them, and the defendant never joined as a tenant much less on 03.04.2015, hence, the payment of rent to the plaintif does not arise; that there were no arrears between them, as there is no relationship of landlord and tenant; that there is a sister and brother relationship. The plaintif did not file any documents or property tax/electricity charges receipts, except a legal notice copy dt.10.09.2015 and postal receipt dt.10.09.2015 to show that she is the absolute owner and possession and enjoyment of house bearing No.87/34; that the plaintif did not file the Will dt.07.02.2015 under which she is claiming the title to the house bearing No.87/34; that the plaintif did not mention the Regd. Sale Deed under which the mother of the plaintif and defendant purchased the house. The plaintif filed the Caveat Petition on 24.06.2015 before the

Junior Civil Judge, Kurnool through her counsel Sri K.Prabhakar and there is no word concerning Will dt.07.02.2015; that in the said Caveat Petition also she did not show the defendant as a tenant. S.Subbamma purchased the house plot on 28.02.1974 under a Registered Sale Deed 3

Doc. No.584/1974 and she is in possession and enjoyment of the same and constructed a house over it, thereon the Kurnool Municipal

Corporation assessed the house and levied the house tax for it, and issued Demand Notice to her for payment of the property tax. Hence, the house bearing No.87/34 is the not self-acquired property of

S.Ch.Subbaiah to write any Will in favour of anybody. Even if any Will is executed by him, it can be considered to the extent of his share only.

S.Ch.Subbaiah and S.Subbamma are wife and husband; they had three daughters and two sons by the name S.Ushasri, S.Udayasri, S.Upasri,

S.Thanish, and S.Venkatesha; S.Subbamma died intestate on 25.06.2010 and S.Ch.Subbaiah died on 06.03.2015, S.Ushasri died leaving behind her husband N.Nagabhushanam and children N.Vijaya Deepthi, Bhaskara

Krishna. S.Venkatesha also died leaving behind his son Sriharsha and wife. The health condition of Sri S.Ch.Subbaiah is not good on the date of the alleged execution of the Will on 07.02.2015 and also on 05.01.2015.

His condition was deteriorating day by day since November 2014 and he was admitted to the hospital several times and that he is not in a position to execute any Will with a full state of mind after November 2014. Hence, he wrote with full state of mind and with good health a

Registered Will bearing Document No.69/2014 on 04.09.2014 for the

House bearing No.87/34. According to the said Will, the defendant and the grandson Sriharsha has got right, title, interest, and possession of the property on the death of S.Ch.Subbaiah; the daughters are well positioned and they are married and well settled with their respective employments. The defendant had no regular source of income and he had private jobs. The second son S.Venkatesha died at an early age; the defendant is alone looking after his father till his death. The defendant and Sriharsha had no permanent source of income, hence, the father of the defendant executed a Will to shelter them in society to lead a good 4 life. The plaintif had fully aware of the family arrangements and the intention of her father S.Ch.Subbaiah but with bad intentions by a boring grudge against the defendant's family. The plaintif did not spend any rupee for the cremation of her father nor at least attended to the hospital whenever required to her father. The defendant is regularly paying property tax to the house.The defendant is residing in the house bearing No.87/34 along with her father and looking after his health after so many years of spending his hard money and time on his father. The defendant had no other property except this house but the plaintif had a good house and a Government Job in Postal Department. Sriharsha had no job, and no income and he is a student. The plaintif with an ulterior motive wants to put the defendant and his family in deep trouble. The plaintif filed the OS.No.43/2016 before the Principal Junior Civil Judge,

Kurnool against this defendant and Satyavathi and Sriharsha for

Permanent injunction restraining the defendants in the suit schedule property i.e., D.No.87/34 and filed the IA.No.120/2016 for not to alienating the house. The suit is filed for eviction from the house bearing

D.No.87/34 and another suit is filed for permanent injunction and not to alienate the house bearing D. no.87/34. On one side the plaintif admits that this defendant is a tenant in the said house and on another side it pleads that she is in possession and filed the IA not to alienate the house property. The plaintif has not come to this court with clean hands and she wants to gain illegally. There are no merits in the suit of the plaintif.

Hence the suit is liable to be dismissed with costs.

4.Basing on the respective pleadings of the parties, the following issues are settled for trial:-

1. Whether the plaintif is entitled for suit amount as prayed for?

2.To what relief?

5

5. On behalf of the plaintif, P.Ws.1 and 2 were examined and Ex.A1 to A3 were and Ex.B1 and Ex.B2 were marked on behalf of the defendant during cross-examination of P.W.1. On behalf of the defendant, D.W.1 was examined and Exs.B3 to B18 were marked.

6.Heard arguments of both sides. Written arguments filed on behalf of the defendant. Perused the material on record.

ISSUE No.1:-

7.The suit filed by the Plaintif for recovery of the rent due by the defendant in a sum of Rs.Rs.25,000/- towards arrears of rent from May to

September 2015 with interest at 24% p.a. from the date of suit till the date of realization. She claims Rs.5,000/- per month. The defendant pleads that there is no relationship between owner and tenant and they are brother and sister apart from the other pleadings and the defendant denies the ownership of the Plaintif. Thus the plaintif has to establish there is a relationship of the landlord and tenant between her and the defendant.

8.To substantiate her case, the plaintif herself was examined as

P.W.1, by reiterating the contents of her plaint and got marked Ex.A1 to

A3. P.W.1 deposed that she acquired the title of the schedule house under Registered Will dated 07.02.2015 executed by her father in her favour and after the death of her father i.e., on 06.03.2015 she acquired the H.No.87/34, B.Camp and she was in peaceful possession and enjoyment of the same and she is the sister of the defendant and she let out the house to him for a monthly rent of Rs.5,000/- under an oral agreement and the defendant joined on 03.04.2015 and since the date of joined, he did not pay the rent and committed default from May 2015 to September 2015, even after receipt of the legal notice. She got 6 marked the legal notice, postal receipt, and postal acknowledgment as

Exs.A1 to A3. During the cross-examination of P.W.1, it was elicited that the defendant is her brother and he is residing in the schedule house and the tax is being paid by the defendant as he agreed to pay. It is further elicited that there is no written agreement between them to pay the tax by the defendant. She stated that she got issued a legal notice to the defendant before the filing of the present suit demanding payment of rent and the defendant got issued a reply notice under Ex.B1. She admitted that she filed OS.No.43/2016 against the defendant in respect of the very same suit schedule house seeking an injunction as the defendant therein and others tried to dispossess her from the suit schedule property on 23.12.2015 and admitted the document shown to her as the plaint, and proof affidavit of the said suit under Ex.B2. P.W.1 stated that her father purchased the plaint schedule property and he executed a Will bequeathing the suit schedule house in her favour and she has not seen the Will deed stated to have been executed in favour of the defendant. She admitted that except for the documents filed by her under Exs.A1 to A3, there are no other documents to show that the defendant is her tenant.

9.In support of her version, the plaintif examined one Mallikarjuna

Reddy as P.W.2, who deposed that the plaintif is the absolute owner of the plaintif's schedule house and she acquired title to the property by way of a Registered Will dated 07.02.2015, which is executed by her father in the name of the plaintif and he witnessed the said Registered

Will. He further deposed that the defendant is the brother of the plaintif and he knows he is the tenant of the plaintif's schedule house. During cross-examination of P.W.2, it is elicited that the defendant is the brother of the plaintif and the defendant is residing in the plaint schedule 7 property, but he does not know whether the defendant is residing in the said house as a tenant or not. He denied that he worked as a driver under the plaintif in one breath and on the next breath he stated that the plaintif has a Bolero vehicle and in 2010, one Mallikarjuna was the driver of the said vehicle. He admitted that the plaintif is his owner and that he is before the court to depose evidence on her behalf. He stated that he does not know the pleading of the plaintif in the present suit and he cannot say the document number of the Will deed, dt.07.02.2015, and also the date of the document, and the said Will deed was not executed in the residence. He denied the suggestion that he is not the attester of the Will deed, dt.07.02.2015 and that he is deposing falsely at the instance of the plaintif. He admitted that in his chief affidavit, the amount of rent was not mentioned and he cannot say the house number mentioned in the Will deed, dt.07.02.2015.

10.On behalf of the defendant, he examined as D.W.1 and Ex.B3 to

B.18 are marked, and the Ex.B1 and 2 are marked through Plaintif. Out of them, Ex.B3 is the Original property tax receipt, dt.29.04.2017, Ex.B4 is Original water tax receipt, dt.18.04.2018, Ex.B5 is Original property tax receipt, dt.29.04.2017, Ex.B6 is the Original water tax receipt, dt.29.04.2017, Ex.B7 is Tax receipt, dt.19.04.2016, Ex.B8 is the Original water tax receipt, dt.24.01.2019, Ex.B9 is the Original water tax receipt, dt.23.06.2015, Ex.B10 is the Original water tax bill, dt.01.11.2015,

Ex.B11 is Original water tax demand notice, dt.05.05.2015, Ex.B12 is

Original electronic service delivery, dt.19.06.2015,Ex.B13 is Original property tax receipt, dt.10.12.2015,Ex.B14 is Original property tax receipt, dt.22.10.2015,Ex.B15 is Original property tax receipt, dt.13.05.2015, Ex.B16 is the Original water tax receipt, dt.10.12.2015,

Ex.B17 is Served copy of the affidavit and petition Caveat OP.85/2015 of 8 the plaintif, and Ex.B18 is C/c.of Caveat Petition No.80/2015 filed by the defendant. During cross-examination, he denied that his father Subbaiah executed a Will in respect of the suit schedule house in favour of P.W.1 and that he is residing as a tenant in the schedule house. D.W.1 stated that he is the owner of the schedule house and he is residing in it accordingly. He denied the suggestion that P.W.1 is the owner of the schedule house and that he is deposing falsely against P.W.1 to evade the rent amounts to P.W.1. He further denied that PW.1 is owner of schedule house as per Will, dt.07.02.2015 executed by his father. It is suggested to D.W.1 that he entered into an agreement with PW.1 as a tenant to reside in the schedule house by paying a monthly rent of

Rs.5,000/-. This suggestion elicits that there was a written argument between P.W.1 and D.W.1 regarding tenancy and the amount of rent. It is further suggested that on 03.04.2015 he entered into an oral agreement with his sister i.e., P.W.1 to reside in the schedule house as a tenant. The contrary suggestions put by the counsel for the plaintif create doubt in the mind of the court regarding the jural relationship of landlord and tenant of the parties. Therefore, still, the jural relationship between the parties is pending for determination.

11.The documents exhibited and relied on by the plaintif in proof of her relationship with the defendant as landlord and tenant are the legal notice, postal receipt, and acknowledgment under Exs.A1 to A3 documents, she has not filed any proof to show that she is the owner of the Plaint schedule house bearing No.87/34, B.Camp, Kurnool and she admitted that she is the absolute owner of the plaint schedule property and there is no other document to show that the defendant is her tenant". Even though she undertakes the cross-examination, for the production of the documents and also the property tax receipts, she 9 failed to produce the same. She further submitted that she has not filed any documents in proof of arrears of rent. The documents exhibited and relied on by the plaintif in proof of her relationship with the defendant as landlord and tenant i.e., Ex.A1 to A3 are not at all established the jural relationship between them.

12.On the other hand, the defendant filed the property tax receipts under Exs.B3, B5, B13 to B15 pertaining to H.No.87/34, water tax receipts pertaining to H.No.87/34 under Ex.B4, B6, B8 to B11 and B16 and tax receipt pertaining to the H.No.87/34 under Ex.B7. Further D.W.1 produced Ex.B17 is served a copy of the affidavit and petition Caveat

OP.No.85/2015 of the plaintif under Ex.B17 and c/c of Caveat Petition

No.80/2015 filed by the defendant under Ex.B18. The documents filed by the defendant are showing the defendant is residing in the said house and his name is mutated in the concerned records. Based on the documents filed by the defendant under Exs.B1 to B18, it is established a reasonable doubt that the plaintif is not the owner of the schedule house and the defendant is not a tenant to the Plaintif.

13.Apart from the documentary evidence, it is clearly admitted by the

Plaintif in her cross-examination that she filed OS No.43/2016 against the defendant in respect of the very same suit schedule property seeking an injunction and the document shown to her under Ex.B1 is the plaint and proof affidavit of the said suit. Except for the legal notice, postal receipt, and acknowledgment under Exs.A1 to A3 documents, she has not filed any proof to show that she is the owner of the Plaint schedule house bearing No.87/34, B.Camp, Kurnool and she admitted that she is the absolute owner of the plaint schedule property and there is no other document to show that the defendant is her tenant". Even though she undertakes the cross-examination, for the production of the 10 documents and also the property tax receipts, she failed to produce the same. She further submitted that she has not filed any documents in proof of arrears of rent.

14.Though the plaintif pleads that the defendant paid one month's rent there is no evidence or proof. It is rightly contended by the defendant that it is the natural custom that, whenever we will give the house for rent, we will take advance rent of two months. That she has not pleaded or established. This shows that the defendant is not the tenant to the plaintif. Thus, the plaintif miserably failed to establish that there is a relationship between owner and tenant and she has given the schedule house for rent. There is no documentary proof for her pleadings.

15.Admittedly another suit is filed by the plaintif in O.S.No.43/2016 seeking permanent injunction restraining the defendant herein and others from the schedule house itself shows that there are contra pleadings. On one side the plaintif admits that the defendant is a tenant in the plaint schedule house and on another side she pleads in the other suit that the defendant and his men should not interfere with her peaceful possession and enjoyment of the schedule house. The contra pleads proves that the defendant is not a tenant and plaintif is not in possession and enjoyment of the schedule suit house.

16.The examination of the P.W.2 will not improve the suit, as the plaintif is miserably failed to elicit the relationship of the parties as tenant and owner. P.W.2 is the driver of the plaintif and he did not know whether the defendant is residing in the said house as a tenant or not.

The witness at least failed to give evidence that, the rent amount and house number also. In these circumstances, the evidence of the P.W.2 11 cannot be believed and it cannot rely upon. As rightly contended by the defendant, The plaintif did not file any documents or property tax/ electricity charges receipts, except a legal notice copy dt.10.09.2015 and postal receipt dt.10.09.2015 to show that she is the absolute owner and possession and enjoyment of house bearing No.87/34; that the plaintif did not file the Will dt.07.02.2015 under which she is claiming the title to the house bearing No.87/34; that the plaintif did not mention the Regd. Sale Deed under which the mother of the plaintif and defendant purchased the house. The plaintif filed the Caveat Petition on 24.06.2015 before the Junior Civil Judge, Kurnool through her counsel and there is no word with regard to Will dt.07.02.2015; that in the said

Caveat Petition also she did not show the defendant as a tenant. The plaintif failed to establish that the defendant is the tenant of the house bearing No.87/34, Kurnool. Further, there is no oral or written agreement between them that the defendant joined as a tenant much less on 03.04.2015, hence, the payment of rent to the plaintif does not arise; that there were no arrears between them, as there is no relationship of landlord and tenant.

17.It is evident from the plaint pleadings that the defendant kept quiet after receiving the legal notice got issued under Ex.A1. But during her cross examination, it is elicited that the defendant got issued reply notice to the plaintif under Ex.B1. But the plaintif did not choose to exhibit or file the said reply said to have been issued by the defendant by way of reply to the legal notice got issued by the plaintif under

Ex.A1. The plaintif was not even chosen to examine any one of the neighbors of the suit schedule property or any person who attested the alleged Will, dt.07.02.2015, and payment of rent by the defendant to the plaintif. There is no iota of evidence on the record to establish the jural 12 relationship between the plaintif and defendant as landlord and tenant.

Moreover, the suit was filed in the year 2015 by claiming arrears of rent from May to September 2015 for the period of 5 months totaling an amount of Rs.25,000/-. The suit is pending to date i.e till the year 2022.

The plaintif was not even chosen to produce or adduce any evidence by way of oral or documentary evidence to show whether the defendant paid the rent even after filing the suit or before May 2015 to establish that she is entitled to arrears of rent for the period from May to

September 2015. The plaintif failed to discharge her burden of proof by producing consistent and cogent evidence in proof of this contention.

Therefore, issue No.1 is answered accordingly against the plaintif.

Issue No.2: " To what relief?"

18.In the result, the suit is dismissed with costs.

Typed to my dictation by Personal Assistant corrected and

pronounced by me in open court on this the day of 12 th day of August,

2022.

Sd/- Smt. D. Sharmila

II ADDL. JUNIOR CIVIL JUDGE,

KURNOOL.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF : FOR DEFENDANT :

P.W.1: Smt.S.UdayasreeDW.1:S.Thanisha

P.W.2: M.Mallikarjuna Reddy

EXHIBITS MARKED

FOR PLAINTIFF :

Ex.A1 : Office copy of Registered Notice, dt.10.09.2015

Ex.A2 : Postal receipt, dt.10.09.2015

Ex.A3 : Postal acknowledgement

FOR DEFENDANT:

Ex.B1: Reply notice, dt.28.09.2015

Ex.B2: Plaint and proof affidavit in OS.43/2016

Ex.B3: Original property tax receipt, dt.29.04.2017 13

Ex.B4: Original water tax receipt, dt.18.04.2018

Ex.B5: Original property tax receipt, dt.29.04.2017

Ex.B6: Original water tax receipt, dt.29.04.2017

Ex.B7: Tax receipt, dt.19.04.2016

Ex.B8: Original water tax receipt, dt.24.01.2019

Ex.B9: Original water tax receipt, dt.23.06.2015

Ex.B10: Original water tax bill, dt.01.11.2015

Ex.B11: Original water tax demand notice, dt.05.05.2015

Ex.B12: Original electronic service delivery, dt.19.06.2015

Ex.B13: Original property tax receipt, dt.10.12.2015

Ex.B14: Original property tax receipt, dt.22.10.2015

Ex.B15: Original property tax receipt, dt.13.05.2015

Ex.B16: Original water tax receipt, dt.10.12.2015

Ex.B17: Served copy of affidavit and petition Caveat OP.85/2015 of plaintif

Ex.B18: C/c.of Caveat Petition No.80/2015 filed by the defendant

Sd/- Smt. D. Sharmila

II AJCJ, KNL.

1

IN THE COURT OF THE II ADDL. JUNIOR CIVIL JUDGE::KURNOOL

PRESENT: Smt. D.Sharmila,

II Additional Junior Civil Judge, Kurnool.

Friday, 12 th day of August, 2022

O.S.No.906/2015

T.Muralidhar, S/o.P.T.Moulali Swamy, Hindu, aged 41 years, R/o.H.No.46-240, Budhawarapeta, Kurnool.… Plaintif

Versus

1. M/s.Kapil Chit Funds Pvt., Ltd., Kurnool Branch, rep. by its Divisional Manager, E.Naga Shankar, s/o.E.Yellaiah, who is authorized by the Company Board of Directors

2. J.Chandra Sekhar, s/o.J.Narayana, aged 45 years, Hindu, r/o.H.No.16/542, Budhawarapeta, Kurnool town, Now r/o.H.No.3-23-33, Kota street,

3. K.Venugopal Rao, s/o.K.Swamy Rao, aged 42 years, Hindu, r/o.D.No.81/130, Venkateswara nagar, Kurnool town

4. S.Chinna Naganna, s/o.S.Edanna, aged 35 years, Hindu, r/o.H.No.11/473-65, S.S.Nagar, Kurnool town

5. S.David (DIED), s/o. S.Moses, aged 40 years, r/o.H.No.46/785/209, Swamy Reddy Nagar, Kurnool town.… Defendants

This suit is coming on 05.08.2022 for final hearing before me in the presence of Sri D.Mohammad Rafi, H.K.Jalandhar Rao, Advocates for the plaintif and

Sri N.Siva Prasad Gupta, Advocate for defendant No.3, Defendants No.1, 2 and 4 having been called absent and set exparte and the suit against Defendant No.5 is dismissed and this Court delivered the following

:: JUDGMENT ::

1. This suit is filed by the plaintif seeking to pass a decree against the 2nd defendant and a personal decree against defendants No.3 to 5 and for the costs of the suit.

2. The brief averments in the Plaint are as follows:-

Defendant No.1 is the Chit Fund Company, 2nd defendant is the principal borrower. Plaintif, defendants No.3 to 5 are guarantors of the 2nd defendant. On 31.01.2008, 2nd defendant executed Chit Agreement in favour of defendant No.1 Chit

Fund company being the subscriber of chit run by defendant No.1 and the 2nd 2 defendant participated and stood as successful bidders and for taking the amount from defendant No.1, the plaintif and defendants No.3 to 5 stood as surety on behalf of 2nd defendant. Defendant No.2 regularly paid chit amount for some time and he has failed to pay chit amount afterward defendant No.1 was constrained to file

O.S.No.459/2012 on the file of Principal Junior Civil Judge, Kurnool, and the same

was decreed on 17.07.2014. Based on the said decree, E.P.No.273/2014 in

O.S.No.459/2012 on the file of Principal Junior Civil Judge, Kurnool under Order 21

Rule 43 & 77 of CPC to attach the movables of J.Dr.No.2 ( i.e., plaintif herein) and

J.Dr.NO.4 to the extent of E.P. amount of Rs.67,508/- and the Hon'ble Court pleased to order for attachment of movables of plaintif herein. Subsequently, the plaintif approached the defendant No.1 chit fund company and settled the matter, and paid an amount of Rs.62,000/- towards full and final satisfaction to defendant No.1 chit fund company, and the same was filed in the Hon'ble Court. Being the principal borrower, defendant No.2 is liable to pay the suit amount, and defendants No.3 to 5 who are guarantors to the 2nd defendant are personally liable to pay the suit amount to the plaintif which was paid by the plaintif to the 1st defendant chit company.

Hence, no relief was sought against defendant No.1 as it is added as a proforma party. Hence, the suit.

3.Though summons were served on all, defendants Nos.1,2, and 4 did not attend the Court, hence they were set exparte. Defendant No.1 was added as a proforma party and the case against Defendant No.5 was dismissed on 03.02.2020.

4.Thus it is only defendant No.3 who contested the suit. Defendant No.3 filed written statement denying the plaint averments and inter alia stating as under:-

Defendant No.3 did not receive any summons in O.S.No.459/2012 Principal Junior

Civil Judge, Kurnool and he does not know about the filing of E.P.No.273/2014 in

O.S.No.459/2012. He submitted that he never gave a guarantee to defendant No.2 in

suit No.459/2012 and the plaintif is put to strict proof of the same. He further denied the allegation that the plaintif approached defendant No.1 chit fund company and 3 settled the matter and paid Rs.62,000/- as full and final settlement is also to be proved by the plaintif. Defendant No.3 further submitted that the plaintif and defendant No.2 by colluding with each other filed this false case and he further submitted that defendant No.2 alone is liable to pay the suit amount as he is the main borrower and defendant No.3 has not given a guarantee to the plaintif. In this case, the plaintif has not issued any mandatory legal notice before the filing of this suit, and hence, there is no limitation for the suit and hence, prayed to dismiss the suit.

5.Based on the respective pleadings of the parties, the following issues are settled for trial:-

1. Whether the plaintif is entitled to the suit amount along with the interest as prayed for?

2. To what relief?

6.On behalf of the plaintif, the plaintif himself was examined as P.W.1, and

Exs.A1 to A4 were marked. No oral or documentary evidence was adduced on behalf of defendant No.3.

7.Heard arguments of both sides. Perused the material on record.

ISSUE No.1:-

8.A perusal of the record, the 1st defendant is added ad a Proforma party and case against the 5th defendant is dismissed on 03.02.2020 and Defendant No.2 and 4 were set exparte. The 3rd Defendant has taken a plea that he never stood as guarantor for defendant No.2 herein in O.S. No.459/2012 and he denied the allegation that the plaintif approached defendant No.1 chit fund company and settled the matter in E.P.No.273/2014 in O.S. No.459/2012 by paying Rs.62,000/- as full and final settlement. The 3rd Defendant further contends that defendant No.2 being the

principal debtor alone is liable to pay the suit amount and that the suit is not

maintainable against him as the plaintif has not issued any mandatory legal notice

before the filing of this suit. The 3rd defendant denied his liability towards the suit

4 claim against the plaintif, to establish the liability of the 3rd defendant, the plaintif initially adduced his evidence.

9.To discharge the burden cast upon him, the plaintif himself was examined as

P.W.1 and he reiterated the averments in the plaint and got marked Exs.A1 to A4.

The plaintif filed his evidence affidavit reiterating the plaint averments that the 2nd defendant was one of the subscribers in the chit conducted by defendant No.1 Chit

Fund company and this plaintif stood as guarantor along with 3rd to 5th defendants on behalf of the 2nd defendant, who remained as a defaulter. Ex.A1 reflects that defendant No.1 Chit Fund company filed O.S. No.459/2012 against the 2nd defendant, being the principal debtor and P.W.1 and defendants 3 to 5 being guarantors of the 2nd defendant, for recovery of chit amount as the 2nd defendant failed to pay the dues and that the Court decreed the suit against P.W.1 and defendants 2 to 5 under Ex.A1. The recitals of Ex.A2 reveal that based on the decree in O.S.No.459/2012 under Ex.A1, the 1st defendant herein filed E.P.No.273/2014 under Order 21 Rule 43 & 77 of CPC to attach the movables of J.Dr.No.2 ( i.e., plaintif herein) and J.Dr.NO.4 (4th defendant herein) to the extent of E.P. amount of

Rs.67,508/- under Ex.A2 and that P.W.1 approached the defendant No.1 chit fund company and settled the matter, and paid an amount of Rs.62,000/- towards full and final satisfaction to defendant No.1 chit fund company and in turn, the 1st defendant filed F.S.Memo towards final payment of the plaintif herein under Ex.A4 and that

E.P.No.273/2014 was terminated as per docket order under Ex.A3. Further P.W.1

also deposed about the liability of defendant No.2 (principal debtor) and defendants

No.3 to 5 (other guarantors of 2nd defendant) to pay the suit amount to P.W.1 which was paid by him to the 1st defendant chit company under Ex.A4.

10.During the cross-examination of P.W.1, it is elicited that he stood as one of the guarantors along with the 3rd to 5th defendants on behalf of the 2nd defendant and he repaid the decretal amount in EP No.273/2014 in OS No.459/2012 to the 1st defendant company on behalf of himself and 2nd to 5th defendants, who arrayed as 5 defendants for the decree passed in OS No.459/2012 under Ex.A1. P.W.1 denied the suggestion that the 3rd defendant is not liable to pay the suit claim as he did not lend any amount to the plaintif. It is elicited that PW.1 is entitled to claim the EP amount in

EP No.273/2014 in OS No.459/2012 from the 2nd to 5th defendants as he repaid the

said EP amount to the 1st defendant on behalf of himself and 2nd to 5th defendants towards full and final satisfaction of EP amount under Ex.A4. He denied the suggestion that the suit is not maintainable against the 3rd defendant as he failed to issue legal notice before filing this suit. Butfor the reason that unlike the cases filed

Under Sec.138 of the NI Act, wherein issuance of legal notice as per Sec.138(b) of the Act is mandatory before filing a criminal case, it is not a condition precedent in a civil suit for the plaintif to issue legal notice, wait for a considerable time and then file suit. So, the non-issuance of prior notice to the 3rd defendant does not itself either negation the claim of the plaintif or ground to disbelieve his contentions.

11. P.W.1 was cross-examined by the learned counsel for the 3rd defendant at length. However, nothing was elicited to doubt the veracity of his evidence. This court has no reason to disbelieve the evidence of P.W.1 and Exs.A1 to A4. Once the plaintif discharges his initial burden, the burden shifts onto the 3rd defendant to rebut the same. In this regard, the 3rd defendant did not choose to adduce any evidence.

On the other hand, the plaintif successfully proved that the 2nd defendant was subscribed as a member in the chit conducted by the 1st defendant/chit fund company, and this plaintif stood as guarantor along with 3rd to 5th defendants on behalf of the 2nd defendant, who remained as a defaulter to repay the chit installments and produced Exs.A1 to A4, which recite that in view of the settlement under Ex.A4 FS Memo, the liability of 2nd defendant and the remaining guarantors i.e.,

D3 to D5 are fully absolved against the 1st defendant herein. Admittedly the 3rd defendant failed to prove that he never stood as one of the guarantors of the 2nd defendant along with the plaintif and others and no document is filed by him whether he preferred any appeal against the decree passed against him in OS No.459/2012 6 under Ex.A1 and any revision preferred against the order passed in EP No.273/2014 in OS No.459/2012 under Ex.A3. Further, the 3rd defendant did not deny that the plaintif discharged the decretal amount in EP No.273/2014 in OS No.459/2012 to the

DH.r/1st defendant herein on behalf of the plaintif and other defendants including him by way of FS Memo under Ex.A4.

12.Learned counsel for the 3rd defendant argued that there is no monetary transaction between the plaintif and the 3rd defendant and that the 3rd defendant is not liable to pay any amount to the plaintif. Be it may be, it is settled law that as per the principles of the Contract Act, for a Guarantor to exercise its right of subrogation, it is not necessary to have an agreement in writing. Once one of the Guarantor discharges the liability of the Principal Borrower and other guarantors towards the

Creditor, all the rights of the Creditor to recover the money get automatically transferred to the said Guarantor. Thus the plaintif being one of the guarantor paid the debt, and on such payment, he is entitled to recover the entire amount from the

principal debtor and other guarantors.The guarantor is therefore entitled to every

remedy that the Creditor has against the Debtor, to enforce every security and all means of payment, even through securities entered without the knowledge of Surety having a right to have those securities transferred to him.

13.In the light of the above observations, except the oral assertions of the 3rd defendant, there is neither oral nor documentary evidence to support or to at least probabilise his defence. Seen from any angle, the contention put forward by the 3rd defendant does not appear to be convincing and trustworthy. He simply remained silent without adducing any evidence. Whereas the evidence adduced by the plaintif is cogent and convincing and based on the said evidence, it has to be held that the suit claim is proved and he is entitled to recover the suit claim as prayed for.

Accordingly, issue No.1 is answered in favour of the plaintif.

7

ISSUE No. 2: " To what relief?"

14.In the result, the suit is decreed with costs in favour of the plaintif, for an amount of Rs.65,844/- (Rupees Sixty Five Thousand Eight Hundred and Forty-Four

Only) with future interest at 12% p.a., on the Principal amount of Rs.62,000/- (Rupees Sixty Two Thousand Only) from the date of suit till the date of decree and thereafter at 6% p.a. on the Principal amount of Rs.62,000/- (Rupees Sixty Two

Thousand Only), from the date of decree till the date of realization of the amount.

Defendants 2 to 4 are jointly and severally liable to pay the suit claim to the plaintif.

Typed to my dictation by Personal Assistant corrected and pronounced by me in open court on this the day of 12 th day of August, 2022.

II ADDL. JUNIOR CIVIL JUDGE,

KURNOOL.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF : FOR DEFENDANT :

P.W.1: T.MuralidharNone

EXHIBITS MARKED

FOR PLAINTIFF :

Ex.A1 : Certified copy of Decree in OS.No.459/2012, dt.17.07.2014

Ex.A2 : Certified copy of EP.No.273/2014 in OS.No.459/2012

Ex.A3 : Certified copy of Docket Order in EP.273/2014 in OS.459/2012

Ex.A4 : Certified copy of Full Satisfaction memo filed in EP.273/2014 in

OS.459/2012

FOR DEFENDANT: NIL

II AJCJ, KNL.

CALENDAR AND JUDGMENT

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS :: KURNOOL

CC.No.1498/2017

1. Date of offence 15-08-2014

2.Date of report or Complaint 15-08-2014

3.Date of apprehension of the accused --

4.Date of release on bail --

5.Date of commencement of trial 04-01-2022

6.Date of close of the trial 29-03-2022

7.Date of sentence of order 18-04-2022

8.Explanation of delay and remarks -

ComplainantState: Represented by: Sub Inspector of police, I Town PS., Kurnool. Accused1. Shaik Khaleel Ahmed, age 38 years,S/o.S.A.Azeez Miah, R/o.H.No.23/87,Moghalpura, Kurnool Town, Town Secretary,

2. S.Md.Riyaz Basha, age 42 years,S/o.Jahangeer Basha, R/o.D.No.46/167, B.2,Opp.Sadiq Masjid, Budhawarapeta, Kurnool Town, PFI District Secretary,

3. Syed Roshan Ali, age 68 years,S/o.Late Syed Saddem, R/o.H.No.87/1256, Nagireddy Revenue Colony, Near Bharatamma Temple, Kurnool Town, Rtd., M.R.O.

4. Chintamanu Ajay Kumar , age 61 years, S/o. C.Satyanarayana R/o. H.No. 14- 57, Kodumuru town

5. Sayed Abdul Gafor, Aged 41 years, S/o.S.A.Mujeeb,r/o.H.No.36/36- 40-G-3, Chittari Street, Madam Compound, Kurnool Town. OffenceU/s. 143, 188, 341 IPC FindingAccused are found not guilty. Sentence In the result, accused 2 to 6 are found not guilty of offence punishable under Sec.143, 188, 341 IPC and they are acquitted of the same U/sec.255 (1) of Cr.P.C. Their bail bonds and surety bonds shall be in force for a period of six months U/sec.437-A of Cr.P.C.

I Addl. Judicial Magistrate of I Class, Kurnool.

Copy submitted to the Hon’ble Chief Judicial Magistrate-Cum-Prl. Asst. Sessions

Judge, Kurnool.

2

IN THE COURT OF I ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS:

KURNOOL

Present: Smt V.Satya Lakshmi Prasanna

Judicial Magistrate of I Class, Kurnool

MONDAY, THE 18th DAY OF APRIL, 2022

CC.No.1498/2017

Between:

State rep. By Sub-Inspector of Police,

Kurnool I Town UPS.... Complainant.

-VS-

1. Shaik Khaleel Ahmed, age 38 years, S/o.S.A.Azeez Miah, R/o.H.No.23/87, Moghalpura, Kurnool Town, Town Secretary,

2. S.Md.Riyaz Basha, age 42 years, S/o.Jahangeer Basha, R/o.D.No.46/167, B.2, Opp.Sadiq Masjid, Budhawarapeta, Kurnool Town, PFI District Secretary,

3. Syed Roshan Ali, age 68 years, S/o.Late Syed Saddem, R/o.H.No.87/1256, Nagireddy Revenue Colony, Near Bharatamma Temple, Kurnool Town, Rtd., M.R.O.

4. Chintamanu Ajay Kumar , age 61 years, S/o. C.Satyanarayana R/o. H.No. 14- 57, Kodumuru town

5. Sayed Abdul Gafor, Aged 41 years, S/o.S.A.Mujeeb, r/o.H.No.36/36-40-G-3, Chittari Street, Madam Compound, Kurnool Town.

... Accused

This case is coming on 12.04.2022 before me for final hearing in the presence of learned A.P.P for prosecution and of Sri.Shaik Shafi,

Advocate for accused and upon having perused the material papers on record, this court delivered the following:

:: J U D G M E N T::

The then Sub-Inspector of Police, I Town PS, Kurnool filed charge sheet in Crime No.132/2014 registered under Sec.143, 188, 341 IPC.

3

2.The brief facts of case are that:

On 15-08-2014 the informant by name P.Raghunath working as

PC in I Town PS Kurnool attended his duties near Chowk Centre, Kurnool along with his colleague G.Nagendra Goud. During course of discharging their duties, at about 8.00 pm, the accused herein by name Moulana Abdul

Rasheed, S.E.C. member of PFI , 2. Khaleel Ahmed, SDPI Town Body

President, Kurnool, 3.Riyaz Basha, District Secretary of PFT, 4.Roshan Ali,

Retired MRO, 5.Ajay Kumar, Retired M.R.O and one Hafeez Abdul Gafoor

AIIC, Kurnool District President arranged the stage on the public road for conducting a meeting on behalf of People Front of India in the name of

Freedom Meeting. Their gathering is unlawful since their proposal for conducting the meeting without prior permission from the then SDPO Kurnool as Sec.30 of Police Act was in force. Therefore, the informant and his colleague both went to above accused and asked them to show the permission for conducting meeting for which they told that they have no permission. Inspite of information given by informant about illegality of their meeting, all of them conducted a meeting on the public road thereby caused hindrance to the free flow of traffic which caused inconvenience to the public.

On the same day, at 22.00 hours, the informant submitted special report

before SHO and sought for necessary action against above mentioned

persons.

3.On the strength of such report the then Sub-Inspector of

Police/LW7 registered the present crime and took up investigation by examining and recording the statements of informant, his colleagues

Nagendra Goud and one M.C.Rangaiah, ASI, besides the statements of three independent witnesses. He also visited the scene and after duly observing the same, he drew the rough sketch. Subsequently, on 06-09-2017 LW8 has taken over the investigation and during course of such investigation, 4 on 10-09-2017 accused No. 2 to 6 voluntarily attended before LW8 and they were served with Sec.41(a) Cr.P.C notices with a direction to cooperate for investigation and to appear before the court as and when required. During course of investigation, the accused No.1 by name M.Abdul has died.

Hence, after completion of investigation LW8 filed charge sheet against A2 to

A6 alleging that they formed themselves into an unlawful assembly and in violation of order duly promulgated by the then SDPO, Kurnool they conducted a meeting and restrained the general public to go through the road thus, they are liable to be punished for the offences punishable under

Sec.143, 188 and 341 IPC.

4.On the strength of material papers filed along with charge sheet, this case was taken on file by one of my learned predecessors by taking cognizance of offences punishable under Sec.143, 188 and 341 IPC, accordingly issued summons to A2 to A6.

5.On receipt of summons, they all appeared and received copies of case documents supplied by this court as contemplated under Sec.207 of

Cr.P.C., thereafter, A2 to A6 were examined U/sec.251 of Cr.P.C. by explaining the sum and substance of accusation of the offences punishable under Sec.143, 188 and 341 IPC, to which they pleaded not guilty and claimed to be tried.

6.During course of trial, prosecution examined PWs.1 to 7 and got marked Exs.P.1 to P.6. The learned APPO has given up the evidence of

LW4 A.C.Peeraiah who filed charge sheet.

7.After closure of prosecution evidence, A2 to A6 were examined

U/Sec.313 Cr.P.C., by explaining the incriminating material appeared from the evidence of PW1, PW5 to PW7 for which they pleaded false implication.

However, they reported no evidence in their defence.

5

8.I have heard on both sides and perused the material on record.

9.Now the point for determination is “Whether the prosecution has to prove the guilt of A2 to A6 of

the offence punishable under Sec.143, 188 and 341 IPC beyond doubt?

POINT:

10.In order to bring home the guilt of above accused for the offences as referred supra, prosecution mainly projected the evidence of

PWs.1 to 5. Out of them PW1 is the informant who submitted Ex.P.1 special report whereby he sought for necessary action against all the accused 1 to 6. He deposed in support of his special report stating that on 15-08-2014 during discharge his duties near Chowk Centre in I Town area,

Kurnool along with PW5 G.Nagendra Goud (PC), he found all the accused 1 to 6 who were gathered for conducting a meeting on behalf of people front of India. He further deposed that inspite of caution given by PW1 about not to conduct any meeting without prior permission from SDPO in view of enforcement of Sec.30 of Police Act, by then all the accused paid deaf ear and conducted meeting thereby caused hindrance to free flow of traffic in the above given area.

11.He was cross-examined by learned counsel for defence. Admittedly, one day before the alleged offence i.e., 14-08-2014 PW1 had reported before

I Town PS, Kurnool on his transfer. On the very next day itself the alleged offence said to have been occurred. Therefore, by the date of offence he is new to the PS as well as Kurnool Town since nothing contra has been brought on record regarding the tenure of PW1 in Kurnool Town prior to 14- 08-2014. In his Ex.P.1 special report PW1 has stated the names of all accused 1 to 6 along with their designations in different organizations. In his cross-examination he stated that after enquiry with the persons available at 6 the scene he has mentioned the full name and designation of all accused in

Ex.P.1 report. Who are those persons?.Nothing is explained by prosecution in that regard.

12.Even otherwise except a statement about conducting a meeting by accused 1 to 6 despite warning given by PWs.1 & 5, they all said to have conducted a meeting by arranging flexies and also some mikes and speakers at the time of meeting. During his visit to the scene nothing has been seized by Pw7/I.O either from the scene of offence during preparation of Ex.P.6 rough sketch or even at the time of the alleged surrender of all accused before the same I.O. It is strange to consider that having got transfer to I Town PS Kurnool on 14-08-2014, PW1 was able to identify the accused to mention their names along with full designation in Ex.P.1 report and his claim about enquiry made with others also looses its significance in the absence of any details furnished regarding the name and other particulars of informant who is given names of accused 1 to 6 to PW1.

13.PW5 is the companion of PW1 at the time of offence and he too had deposed in support of prosecution case and in corroboration of PW1's evidence about conducting the meeting by one M.Abdul Rasheed and A2 to

A6. He too had deposed that because of such meeting much inconvenience has been caused to the general public. As admitted in his cross-examination

PW5 has no prior acquaintance with either of accused 1 to 6 even otherwise neither PW5 nor PW1 would make any mention about utilization of flexies/banners at the place of meeting, in Ex.P.1 special report. The date of offence happened to be independence Day. So mere gathering by any number of persons would not amount to an offence by itself. Though PW1 has deposed attributing that A1 to A6 who had gathered and conducted a meeting on behalf of people front of India party, his evidence is unable to 7 convince regarding source of information from whom PW1 got to know about the names of A1 to A6.

14. Even otherwise there are three independent witnesses to the alleged offence who are examined as PWs.2 to 4, as per their case they are the persons who were running their businesses around the scene of offence at relevant point of time. All these witnesses stated nothing in support of prosecution’s case and against accused. They also pleaded innocence about having any acquaintance with all accused 1 to 6. All these witnesses 2 to 4 are declared as hostile and cross-examined by learned APPO which could not yield any fruitful result eliciting any matter in support of prosecution case except marking of their Sec.161 Cr.P.C statement as Exs.P.1 to P4.

15.Further, PWs.5 and 6 are I.Os who registered the case and conducted investigation. Their evidence particularly relates to the lines of investigation so obviously they have no knowledge about the manner of offence and the role of accused 1 to 6 therein. Both these witnesses denied a suggestion that a false case has been foisted against A2 to A6 on the instructions of their superiors but they failed to collect some cogent and convincing material evidence to prove the presence of accused 1 to 6 at the time of place of alleged offence much less to show that they have conducted a meeting in violation of Sec.30 of Police Act as alleged. If such is the case when the prosecution fails to offer anything regarding the source of information supplied to PW1 in making a mention of the names of accused 1 to 6 in his Ex.P.1 report, their oral evidence of whatever quantity cannot be believed as true particularly to establish the identity of persons present at the scene as A2 to A6 at the time of offence. Hence, they are entitled for clear acquittal.

16.In the result, accused 2 to 6 are found not guilty of offence punishable under Sec.143, 188, 341 IPC and they are acquitted of the same 8

U/sec.255 (1) of Cr.P.C. Their bail bonds and surety bonds shall be in force for a period of six months U/sec.437-A of Cr.P.C.

Dictated to the Stenographer, corrected, signed and pronounced

by me in open court, this the 18 th day of April, 2022.

I Addl. Judicial Magistrate of I Class, Kurnool.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION : FOR DEFENCE:

P.W.1: P.Raghunath -None- P.W.2: Shaik Nazeer Ahmed P.W.3: Maqbul Ahmed P.W.4:Siraj Basha P.W.5:G.Nagendra Goud P.W.6:M.C.Rangaiah P.W.7:P.Thimmaiah

EXHIBITS MARKED

FOR PROSECUTION: FOR DEFENCE:

Ex.P.1:Report-Nil- Ex.P2:161 Cr.P.C Statement of PW2 Ex.P3:161 Cr.P.C Statement of PW3 Ex.P4:161 Cr.P.C Statement of PW4 Ex.P5:F.I.R Ex.P6:Rough Sketch

MATERIAL OBJECTS

-NIL-

JMFC, KNL.

1

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE:: KURNOOL

PRESENT:Smt. D.Sharmila,

Principal Junior Civil Judge, Kurnool.

Wednesday, 19th day of April, 2023

O.S.No.1441/2019

G.Mohan Rao, s/o.G.Tirupal, Hindu, aged 40 years, r/o.H.No.40/421-38-B, Bhagya Nagar, Kurnool City… Plaintif

Versus

Syed Sajjad Hussain, s/o.Syed Khaja Moinuddin, aged about 50 years, Muslim, r/o.H.No.3-108-11, Balaji Nagar, Kurnool City … Defendant

This suit is coming on 17.04.2023 for final hearing before me in the presence of Sri G.Naga Seshaiah, Advocate for the plaintiff and of

Sri Y.Srinivasulu, Advocate for the defendant, after perusal of the material papers available on record and after hearing the counsel for plaintiff and defendant, this court delivered the following:

:: JUDGMENT ::

1.This suit is filed by the plaintiff seeking to recover the principal sum of Rs.2,00,000/- said to be borrowed by the defendant from the plaintiff, along with interest which comes to a tune of Rs.3,43,600/-.

2.The brief averments in the Plaint are as follows:-

On 10.11.2016, Defendant borrowed an amount of Rs.2,00,000/- from Plaintiff for his business and domestic necessities and executed a promissory note in favour of Plaintiff agreeing to repay the same with interest at the rate of 36% p.a. despite repeated oral demands made by the plaintiff, on 10.01.2017 the defendant issued a cheque bearing

No.088357 for Rs.2,12,000/- drawn on State Bank of India, Main Branch,

Kurnool. The said cheque was presented by the plaintiff in his account and the said cheque was returned with an endorsement “Funds

Insufficient” on 31.01.2017. On 07.02.2017 the plaintiff got issued legal notice and filed a complaint under Section 138 of N.I.Act on the file of

Special Judicial Magistrate of First Class, (Proh. & Excise), Kurnool and it 2 is numbered as C.C.No.1404/2017 and the said case is still pending. The defendant did not pay any amount either principal or interest thereon towards the suit promissory note. Hence, the plaintiff filed the suit.

3.The defendant filed written statement denying the plaint averments and inter alia stating that the allegations of the plaintiff against the defendant are vague and are only invented to extract money from him. The plaintiff and some others conducted private chits in the year 2014, the defendant joined as a subscriber and was given an empty signed promissory note and one blank cheque on the same date for security purpose of chit transaction in the year 2014. The said promissory note and the cheque were not returned to the defendant after the completion of chit tenure and the plaintiff got the same illegally and filed the present case to get wrongful gain from the defendant. The defendant paid the total due of the chit transaction, without any dues and further, the plaintiff has not issued any legal notice before filing the suit, if so the defendant has every chance to give a proper reply and deny the claim of the plaintiff. The defendant is no means to pay the claim amount to the plaintiff; the defendant is aged and suffering ill health, having no means. The plaintiff has to prove each allegation with proper evidence. There is no cash consideration between the plaintiff and the defendant, so the suit is liable to be dismissed with costs.

4.Based on the respective pleadings of the parties, the following issues are settled for trial:-

1. Whether suit promissory note is true, valid and binding on the defendant?

2. Whether the suit promissory note is fabricated and not supported by consideration as contended by the defendant?

3. Whether the plaintiff is entitled for suit amount as claimed for?

4. To what relief?

3

5.During the trial, the Plaintiff himself was examined as P.W.1 and

Ex.A1 was marked. On behalf of the defendant, none were examined and no documents were marked.

6.Heard and Perused the material on record.

ISSUE Nos.1 to 3:-

7.Since the case of the defendant is of total denial, the initial legal burden is on the plaintiff to prove the execution of the promissory note by the defendant in his favour and passing of consideration there under to the defendant. For that purpose, he examined himself as P.W.1.

According to P.W.1, the defendant borrowed an amount of Rs.2,00,000/- from him on 10.11.2016 and he got executed a promissory note for

Rs.2,00,000/-, later the defendant failed to repay the amount and on his persist demands the defendant issued a cheque bearing No.088357 drawn on SBI, for Rs.2,12,000/- in his favour and when the said cheque was presented for collection, it was returned with an endorsement "Funds Insufficient" and that he got issued mandatory legal notice and filed a complaint under Section 138 of NI Act and since the defendant did not choose to repay the amount due to him. P.W.1 got marked the suit Promissory Note dated 10.11.2016 for Rs.2,00,000/- as Ex.A1 which is supporting the contention of the plaintiff. During cross-examination

P.W.1 stated that he issued legal notice through his counsel to the defendant demanding recovery of the debt due under Ex.A.1. He denied the suggestion that he did not lend the alleged amount under Ex.A.1 to the defendant and that he did not issue legal notice to the defendant.

P.W.1 stated that Defendant borrowed the amount under Ex.A.1 from him on 10.11.2016 at his residence and he lent the said amount in cash in the denomination of Rs.500/-old notes. He denied the suggestion that old Rs.500/- notes were cancelled by the date of the alleged transaction, for which P.W.1 elicited that the old notes were still in force by the time 4 of the alleged transaction and at the time of the alleged transaction, he along with the defendant and his were present and his son scribed

Ex.A.1 promissory note and Defendant put two signatures in Telugu on

Ex.A.1. He denied the suggestion that defendant gave the blank signed promissory note and blank cheque in his favour towards security for chit transaction and that he created blank signed promissory note given by the defendant for this case. He further denied that did not return the blank signed promissory note of the defendant by stating that the said promissory note was kept in the locker and foisted a false case against the defendant to harass him. He denied that the present civil suit against the defendant is not maintainable as he already filed a complaint u/s.138 of NI Act against the defendant for the dishonour of cheque issued by the defendant in his favour and the defendant herein was convicted in said NI Act case. P.W.1 was not cross-examined by the learned counsel for the defendant despite sufficient time granted by this court. As a result, the evidence adduced by the plaintiffs remained unchallenged. In the very written statement, the defendant pleaded that his signature was obtained on a blank promissory note by the plaintiff in connection with a chit transaction and that Ex.A1 is devoid of consideration, from which defence it can be inferred that, the defendant is not denying his signature on Ex.A1, but says it to have come to existence otherwise. Which defence of the defendant indeed had helped the plaintiff in discharging the initial burden cast upon the plaintiff of proving the execution of Ex.A1 by the defendant. As the

Plaintiff, by examining himself as P.W.1 proved the transaction under

Ex.A1 Suit Promissory Note, the presumption U/sec.118 (a) of Negotiable

Instruments Act shall be drawn in his favour. It is settled law that once the execution of the Promissory Note and transaction under Ex.A1 is proved, the presumption U/sec.118 (a) of Negotiable Instruments Act 5 shall be drawn in favour of the Plaintiff, and then the burden shifts to the

Defendant to rebut the said presumption by preponderance of probability.

8.As stated supra, the defendant filed written statement inter alia takingthe plea of fabrication of Ex.A1 and no consideration passed under Ex.A1 to him, the burden is on him to prove that the suit promissory notes are not supported by consideration or that it came into existence in the circumstances stated by him in the written statement, for which he did not adduce any oral or documentary evidence. If at all the contention of the defendant that the plaintiff obtained a signed blank promissory note from him for chit amount is true, he ought to have issued any notice on his own when the plaintiff failed to return the blank signed promissory note even after repayment of chit installments. No prudent man would exhibit, such a callous attitude in such a situation.

9.There is also no proof to show that the plaintiff did chit business and the defendant subscribed as his chit member. He cannot produce any evidence to show that he paid all the chit installments, to the plaintiff without any default, and believes that even he could not substantiate the contention of the defendant that, he was ever a subscriber in the chits run by the plaintiff. Perhaps this Court opines that, if the defendant had examined any witness, who along with him, happened to be a subscriber in the alleged chit run by the plaintiff, then it could have substantiated the plea of the defendant to some extent.

But without any such exercise, when the defendant did not adduce any evidence to provide any material at least to form an opinion that, the plaintiff had ever done chit business the mere oral assertions of the defendant in the written statement that, he was a subscriber in the chits run by the plaintiff, or the plaintiff did chit business is not proved. In which event how far is the contention of the defendant that, he signed 6 on Ex.A1 in the blank in connection with a chit transaction believable?

Therefore, except for the oral assertions of the defendant, there is neither oral nor documentary evidence to support or to at least probabilise his defence. Seen from any angle, the contention put forward by the defendant does not appear to be convincing and trustworthy.

Consequently, based on the evidence adduced by the plaintiff, it has to be held that the suit claim is proved and he is entitled to recover the suit amount as prayed for. Accordingly, issues 1 to 3 are answered in favour of the plaintiff.

Issue No.4: " To What relief? "

10.In the result, the suit is decreed with costs in favour of the plaintiff for an amount of Rs.3,43,600/- (Rupees three lakhs forty three thousand six hundred only) with subsequent interest @ 12% P.A. on the

principal amount of Rs.2,00,000/- (Rupees two lakhs only) from the date

of suit till the date of decree and thereafter @ 6% P.A. on the principal amount of Rs.2,00,000/- (Rupees two lakhs only) from the date of the decree till the date of realization of the amount.

Typed to my dictation by Personal Assistant, corrected and

pronounced by me in open court on this the day of 19 th day of April,

2023.

PRINCIPAL JUNIOR CIVIL JUDGE,

KURNOOL.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF : FOR DEFENDANT : P.W.1: G.Mohan RaoNone

EXHIBITS MARKED

FOR PLAINTIFF : Ex.A1-Original Promissory note dt.10.11.2016 executed by the defendant in favour of plaintiff for Rs.2,00,000/-

FOR DEFENDANT:

Nil

PJCJ, KNL.