Sri E.rajendra Babu

1

A.S. No.04/2018

PCJC (SD)/GWK.

IN THE COURT OF THE PRINCIPAL CIVIL JUDGE (SENIOR

DIVISION) AT GAJUWAKA

Present:- SRI. E. RAJENDRA BABU,

PRINCIPAL CIVIL JUDGE,

(SENIOR DIVISION),

GAJUWAKA.

FRI DAY, THE 20 th DAY OF DECEMBER, 2024

APPEAL SUIT No. 04/2018

Between :

1. Lakkimsetty Anuradha, W/o Veerabhadra Rao (died)

2. Lakkimsetty Veerabhadra Rao, S/o L.M. Lingam, aged 60 years, residing at Plot No.22/B, B-Block, Pt Colony, Bandlaguda Jageer, Rajendra Nagar, R.R. District, Telangana State, Aadhar No.4734 4447 0406, Phone No.9866327797. (2nd Appellant is added as per the orders in I.A.No.41/2018 dated 01.05.2018)

..Appellants/Plaintiffs

And :

Gorusu Gurunadha Rao, S/o Satya Rao, aged 40 years, residing at Door No.21-66-1, Siddheswaram, Pedagantyada, Gajuwaka, Visakhapatnam.

.. Respondent/Defendant

APPEAL FILED AGAINST DECREE AND JUDGMENT

DATED 24.11.2017 PASSED IN O.S.247/2007 BY THE COURT OF

LEARNED CIVIL JUDGE (JUNIOR DIVISION), GAJUWAKA

Between:

Lakkimsetti Anuradha, W/o Veerabhadra Rao, aged about 44 years, household duties, residing at D.No.1-130/1, Sanath Nagar, Chinagantyada, Gajuwaka, Visakhapatnam.

.. Plaintiff

And:

Gorusu Gurunadha Rao, S/o Satya Rao, aged 30 years, residing at Door No.21-66-1, Siddheswaram, Pedagantyada, Gajuwaka, Visakhapatnam.

.. Defendant

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PCJC (SD)/GWK.

This Appeal Suit came before me for final hearing on 09.12.2024 in the presence of Sri P. Rama Rao (Ramu), learned counsel for appellants and Sri V. Srinivasa Rao, learned counsel for the respondent and upon hearing and having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

1.Plaintiff i.e., Lakkimsetty Anuradha in O.S.247/2007 on the file of the Court of Civil Judge (Junior Division), Gajuwaka died and her husband filed this appeal. The suit filed by plaintiff i.e., Lakkimsetty Anuradha for permanent injunction restraining the respondent/defendant, his men, agents, assignees and legal representatives etc., from interfering with the peaceful possesion and enjoyment of plaintiff, her heirs, successors, agents and assigness etc., over the plaint schedule property and for costs was dismissed.

2.For the sake of convenience, parties are referred to in this

Judgment as arrayed in the suit.

3.The averments of plaint is as follows.

(a) The plaintiff by name Lakkimsetty Anuradha has purchased the plot No.12 consisting 240 sq. yards of site in Sanathnagar Layout from one

D. Gowri Shankara Rao by virtue of a registered sale deed dated 23.05.1999, who purchased the same from Rapeti Paradesi Naidu and Others under a registered sale deed dated 27.04.1970 and that since the date of sale, vendor of plaintiff Gowri Shanakra Rao had been in possession and enjoyment of the same. It is further contended that after purchase, the plaintiff has been in possession and enjoyment of the same and she also availed loan by depositing title deeds of plaint schedule property with State Bank of India,

Gajuwaka. It is further contended that since the date of purchase, the plaintiff has been in peaceful possession and enjoyment of plaint schedule property by laying a cement foundation of compound wall around plaint schedule property.

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PCJC (SD)/GWK. It is further contended that originally, the plaint schedule property and surrounding land sold by Sirasapalli Kannayya in the year 1945 and he sold

Ac.8.00 cents of land to Margani Venkata Ramana by virtue of a registered sale deed dated 16.05.1945. It is further contended that by that time, survey number was 2-A and subsequently it became Sy. No.186 and that later Rapeti

Paradesi Naidu, his son Rapeti Venkata Govinda Rao, Pentakota

Suryanarayana and Pentakota Nagaraju who are sons of Pentakota

Ramadasu purchased the same by virtue of a registered sale deed dated 25.06.1959, but in that sale deed, schedule property shown as Ac.9.94 cents, whereas Venkata Ramana purchased Ac.8.00 cents only.

(b) It is further contended that Rapeti Paradesi Naidu and Others executed a sale agreement dated 25.12.1969 in favour of Bolla Bulli

Subbaraya Choudary and that at the time of execution, some amount was paid and subsequent payments were also shown on the reverse of agreement and that B.B.S. Choudary was continued in possession of plaint schedule property.

It is further contended that subsequently Rapeti Paradesi Naidu and Others executed G.P.A in favour of B.B.S. Choudary to develop the land and later

B.B.S. Chowdary sold Ac.0.71 cents of western side of land in Sy. No.186 to

D. Gowri Shankar Rao by virtue of registered sale deed dated 27.04.1970. It is further contended that thereafter disputes arose between B.B.S. Choudary and his principals with regard to deficit of existing lands and also disputes with

Gonthina Appanna and in that connection, there were exchange of letters between B.B.S. Chowdary and Rapeti Paradesi Naidu and that thereafter at the instance of Gowri Shankara Rao, dispute was raised before arbitrator K.V.

Chalapathi Rao, Advocate, Visakhapatnam, subsequently matter was settled

before Arbitrator and confirmed that existing land is Ac.8.00 cents and further

directed in the award that Rs.12,000/- has to be paid to Rapeti Paradesi Naidu and Others. It is further contended that as per the Arbitration Award dated 14.04.1978, Rs.2,000/- was paid in the presence of Arbitrator K.V. Chalapathi 4

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PCJC (SD)/GWK. Rao on the date of passing of award itself and later amounts of Rs.3,000/-,

Rs.5,000/- and Rs.2,000/- were paid on 24.06.1978, 12.07.1978 and 07.06.1978 respectively to Rapeti Paradesi Naidu and his son Rapeti Venkata

Govinda Rao towards balance sale consideration. It is further contended that

Andhra Pradesh State Agro Industries Corporation Limited levelled the said land of Ac.8.00 cents with their machine which worked for 80 hours and gave their invoice No.3517 dated 18.03.1970 to the land of B.B.S. Choudary and later said B.B.S. Choudary laid a lay out plan for house sites in the said

Ac.8.00 cents of land and obtained approval from China Gantyada Gram

Panchayath on 12.09.1970. It is further contended that D. Gowri Shankar and

B.B.S. Choudary engaged a contractor to develop the land as per layout and to lay roads in the layout site and on 01.08.1971 they entered into an agreement and that the original of the above referred documents were filed in

O.S.No.172/2000 on the file of Senior Civil Judge, Gajuwaka.

(c) It is further contended that D. Gowri Shankara Rao did all the transactions including arbitration and on 20.06.1977 registered General Power of Attorney executed in favour of B.B.S. Choudary was cancelled and Rapeti

Paradesi Naidu, Pentakota Suryanarayana and Rapeti Govinda Rao executed a sale agreement in favour of D. Gowri Shankara Rao and handed over entire land of Ac.9.94 cents as per document No.1955/1959, but mentioned therein as Ac.8.00 cents on field and the original was also handed over to Gowri

Shankara Rao and that it was mentioned in agreement that they also sold away Ac.0.71 cents of land to D. Gowri Shankara Rao under registered sale deed dated 27.04.1970 and D. Gowri Shankara Rao can sell away and register the entire land basing on registered sale deed dated 27.04.1970.

(d)It is further contended that on 31.07.1977 the Special Officer and the competent authority of Urban Land Ceiling, Visakhapatnam issued a statement in Form I with declaration that D. Gowri Shankara Rao holds the properties mentioned in statement apprehended showing that an extent of land 5

A.S. No.04/2018

PCJC (SD)/GWK. in Ac.9.94 cents in Chinagantyada in Sy. No.186. It is further contended that

B.B.S. Choudary and D. Gowri Shankara Rao used to pay taxes to the Gram

Panchayath of Chinagantyada for the schedule land in Sy. No.186 and 185 and that Gowri Shankara Rao has been in possession and enjoyment of the schedule property and sold away layout plots to the knowledge of all including

Rapeti Paradesi Naidu and his son Govinda Rao and Others. It is further contended that at the instance of D. Gowri Shankara Rao, arbitration was held

before K.V. Chalapathi Rao and balance of sale consideration under

agreement of sale dated 25.12.1969 was paid by D. Gowri Shankara Rao and then only Rapeti Paradesi Naidu, his Son Venkata Govinda Rao and

Pentakota Suryanarayana executed sale agreement dated 12.07.1978 for entire land and handed over all the original documents to D. Gowri Shankara

Rao and even the defendant’s vendor or his father issued any notice to the vendor of plaintiff or questioning his sale of all plots by making a panchayath approved layout by means of filing suit for declaration.

(e)It is further contended that the vendor of defendant Rapeti

Venkata Govinda Rao has no right, title, possession or enjoyment over any piece of land in Sy. No.186 as the whole land was sold by his father Rapeti

Paradesi Naidu, during his life time and that vendor of defendant has no right, title, possession or enjoyment over the plaint schedule property in Sy. No.186 and that therefore the defendant cannot get any right through alleged sale deed since father of one of defendant’s vendor Pardesi Naidu has no land to sell the same even during his life time, how his son Rapeti Govinda Rao can have title. It is further contended that on 05.05.2007, while the plaintiff was making preparations to construct a pucca compound wall around her purchased site, the defendant without having any manner of right, title, possession or enjoyment over the plaint schedule property, came there and high handedly tried to dispossess the plaintiff from plaint schedule property and to occupy the same and that the plaintiff protested the acts of the 6

A.S. No.04/2018

PCJC (SD)/GWK. defendant with the help of the neighbours and that the defendant left away by proclaiming that the schedule property belongs to him and he would occupy the same. Hence, the suit.

4.a)The defendant filed his written statement and also additional written statement by denying the allegations in the plaint by contending that the plaintiff was never in occupation and enjoyment of plaint schedule property and that she has not come to the Court with clean hands and that there are no bonafides or merits in the present case and that the appeal is liable to be dismissed. It is further contended that the plaintiff claiming her right through link document i.e., sale deed dated 27.04.1970 in respect of Ac.0.71 cents of land and that even prior to date of suit document i.e., registered sale deed

dated 23.05.1999, the vendor of the plaintiff sold an extent of 3565 sq. yards,

as such the vendor of plaintiff has no right to execute the document and that so he cannot pass better title to the plaintiff. The present suit is for mere injunction, the defendant is under the impression that the plaintiff has to prove the case and as such the defendant did not file any document along with written statement, but subsequently defendant came to know that apart from proving the case by plaintiff, the defendant has to disprove the case of plaintiff by placing substantial evidence.

4.b)It is further contended that the defendant is absolute owner of plaint schedule property by virtue of a registered sale deed dated 21.11.2005 and that since then he has been in possession and enjoyment of the same and that subsequently, he entrusted construction of foundation for raising compound wall around the schedule property to Ch.V.V. Kumar and that the said Kumar has raised foundation around schedule property in the month of

January, 2006. It is further contended that Kumar also issued a receipt dated 18.01.2006 and that the defendant has been in possession and enjoyment of the schedule property and that he prayed this Court to dismiss the suit.

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PCJC (SD)/GWK.

5.Following issues were framed for trial by the trial Court on the basis of pleadings:

1. Whether the plaintiff is entitled for permanent injunction as prayed for ?

2. Whether there is no cause of action for this suit?

3. Whether the plaintiff is in possession and enjoyment of the schedule property?

4. To what relief?

6.On behalf of plaintiff, she examined P.Ws.1 to 4 and exhibited

Exs.A1 to A25. On behalf of the defendant, he examined one Bhupathiraju

Srinivasa Raju as DW.1 and got marked Ex.B.1 to B.16 through him, later the said Bhupathiraju Srinivasa Raju failed to face cross-examination, hence his evidence was eschewed.

7.Trial Court by the Judgment and decree impugned, dismissed the suit, aggrieved by which, the husband of plaintiff filed this appeal inter alia on the following grounds:

a) the decree and judgment of the trial Court is contrary to law, weight of evidence and probabilities of the case,

b) the trial Court failed to observe the case of the defendant that he purchased the property from Rapeti Govinda Rao Naidu under Ex.B11 in which it is recited that he acquired the property by way of his share in the property purchased under Ex.A3,

c) the trial Court failed to observe that since the suit schedule property is a vacant site and clearly having title dispute between the parties and that the evidence of both parties is important and necessary for adjudication of the case and when the defendant or his GPA Holder did not enter into witness box, the trial Court would not have consider that there is no case at all on the defendant’s side,

d) the trial Court further fails to observe that after purchasing the property by Rapeti Paradesi Naidu, his Son Govinda Rao Naidu and 2 Others under Ex.A3 dated 25.06.1959, they executed Ex.A4 dated 25.12.1969 8

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PCJC (SD)/GWK. and Ex.A5 dated 23.04.1970 and handed over property to B.B.S. Chowdary, hence there is no inch of land left in the hands of Rapeti Paradesinaidu, his son Rapeti Venkata Govinda Rao and 2 others,

e) the trail Court completely failed to interpret the plaint schedule property covered under Ex.A1 sale deed and property covered under Ex.B1 sale deed is one and the same,

f) the trial Court did not take burden to discuss anywhere in the judgment about Exs.B1 to B15 filed by defendant,

g) the trial Court without taking into consideration or without going into depth of Exs.A1, B11 and A25 simply gave finding that the boundaries of Ex.A1 is not tallied with Ex.A15 and came to wrong conclusion that the plaint schedule property is not covered by Ex.A15 and erroneously dismissed the suit which is illegal and arbitrary,

h) the trial Court failed to observe that there is discrepancy in extent of land sold by Rapeti Paradesi Naidu his Son Rapeti Venkata Govinda Rao Naidu and 2 Others to B.B.S. Choudary,

i) the trial Court failed to observe the pleadings, written statement and evidence of defendant, and

j) the trial Court came to wrong conclusion though the plaintiff proved her flow of title through certain exhibits.

8.In view of the above contentions, points that arise for determination are Whether appellants could prove their possession over

the plaint schedule property as on the date of filing of the suit and the

trial Court judgment can be set aside?

9.Heard.

POINTS:

10.Learned counsel for appellants argued that deceased 1st appellant/plaintiff by name Lakkimsetty Anuradha is absolute owner of the schedule property as she purchased the same from one D. Gowri Shankara

Rao by virtue of a registered sale deed dated 23.06.1999 under Ex.A1. The said D.Gowri Shankara Rao purchased the same from Rapeti Paradesi Naidu 9

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PCJC (SD)/GWK. and Others under a registered sale deed dated 27.04.1970 and that since the date of sale, vendor of plaintiff Gowri Shanakra Rao had been in possession and enjoyment of the same. It is further contended that after purchase the plaintiff has been in possession and enjoyment of the same and she also availed loan by depositing title deeds of plaint schedule property with State

Bank of India, Gajuwaka. It is further contended that since the date of purchase, the plaintiff has been in peaceful possession and enjoyment of plaint schedule by laying a cement foundation of compound wall around plaint schedule property. It is further contended that originally, the plaint schedule property and surrounding land sold by Sirasapalli Kannayya in the year 1945 and he sold Ac.8.00 cents of land to Margani Venkata Ramana by virtue of a registered sale deed dated 16.05.1945 under Ex.A2. It is further contended that by that time, survey number was 2-A and subsequently it became

Sy. No.186 and that later Rapeti Paradesi Naidu, his son Rapeti Venkata

Govinda Rao, Pentakota Suryanarayana and Pentakota Nagaraju who are sons of Pentakota Ramadasu purchased the same by virtue of a registered sale deed dated 25.06.1959 under Ex.A3, but in that sale deed, schedule property shown as Ac.9.94 cents, whereas Venkata Ramana purchased

Ac.8.00 cents only.

11.It is further contended that Rapeti Paradesi Naidu, his son Rapeti

Venkata Govinda Rao, Pentakota Suryanarayana and Pentakota Nagaraju executed a sale agreement dated 25.12.1969 under Ex.A4 in favour of Bolla

Bulli Subbaraya Choudary and that at the time of execution, some amount was paid and subsequent payments were also shown on the reverse of agreement and that B.B.S. Choudary was continued in possession of plaint schedule property. It is further contended that subsequently Rapeti Paradesi Naidu and

Others executed G.P.A dated 23-04-1970 in favour of B.B.S. Choudary to develop the land in an extent of Ac.9.94 cents under Ex.A5. Thereafter B.B.S.

Chowdary sold Ac.0.71 cents of western side of land in Sy. No.186 to 10

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PCJC (SD)/GWK. D. Gowri Shankar Rao by virtue of registered sale deed dated 27.04.1970. It is further contended that thereafter disputes arose between B.B.S. Choudary and his principals with regard to deficit of existing lands and also disputes with

Gonthina Appanna and in that connection, there were exchange of letters between B.B.S. Chowdary and Rapeti Paradesi Naidu and that thereafter at the instance of Gowri Shankara Rao, dispute was raised before Arbitrator K.V.

Chalapathi Rao, Advocate, Visakhapatnam, subsequently matter was settled

before Arbitrator and confirmed that existing land is Ac.8.00 cents and further

directed in the award that Rs.12,000/- has to be paid to Rapeti Paradesi Naidu and Others. It is further contended that as per the Arbitration Award dated 14.04.1978 which is Ex.A6, Rs.2,000/- was paid in the presence of Arbitrator

K.V. Chalapathi Rao on the date of passing of award itself and later amounts of Rs.3,000/-, Rs.5,000/- and Rs.2,000/- were paid on 24.06.1978, 12.07.1978 and 07.06.1978 respectively to Rapeti Paradesi Naidu and his son Rapeti

Venkata Govinda Rao towards balance sale consideration. It is further contended that Andhra Pradesh State Agro Industries Corporation Limited levelled the said land of Ac.8.00 cents with their machine which worked for 80 hours and gave their invoice No.3517 dated 18.03.1970 to the land of B.B.S.

Choudary and later said B.B.S. Choudary laid a lay out plan for house sites in the said Ac.8.00 cents of land and obtained approval from China Gantyada

Gram Panchayath on 12.09.1970. It is further contended that D. Gowri

Shankar and B.B.S. Choudary engaged a contractor to develop the land as per layout and to lay roads in the layout site and on 01.08.1971 they entered into an agreement and that the original of the above referred documents were filed in O.S.No.172/2000 on the file of Senior Civil Judge, Gajuwaka. They further contended that D. Gowri Shankara Rao did all the transactions including arbitration and on 20.06.1977 registered General Power of Attorney executed in favour of B.B.S. Choudary was cancelled and Rapeti Paradesi

Naidu, Pentakota Suryanarayana and Rapeti Govinda Rao executed a sale agreement in favour of D. Gowri Shankara Rao and handed over entire land of 11

A.S. No.04/2018

PCJC (SD)/GWK. Ac.9.94 cents as per document No.1955/1959, but mentioned therein as

Ac.8.00 cents on field and the original was also handed over to Gowri

Shankara Rao and that it was mentioned in agreement that they also sold away Ac.0.71 cents of land to D. Gowri Shankara Rao under registered sale deed dated 27.04.1970 and D. Gowri Shankara Rao can sell away and register the entire land basing on registered sale deed dated 27.04.1970.

12.It is further contended that on 31.07.1977 the Special Officer and the competent authority of Urban Land Ceiling, Visakhapatnam issued a statement in Form I with declaration that D. Gowri Shankara Rao holds the properties mentioned in statement apprehended showing that an extent of land in Ac.9.94 cents in Chinagantyada in Sy. No.186. It is further contended that

B.B.S. Choudary and D. Gowri Shankara Rao used to pay taxes to the Gram

Panchayath of Chinagantyada for the schedule land in Sy. No.186 and 185 and that Gowri Shankara Rao has been in possession and enjoyment of the schedule property and sold away layout plots to the knowledge of all including

Rapeti Paradesi Naidu and his son Govinda Rao and Others. It is further contended that at the instance of D. Gowri Shankara Rao, arbitration was held

before K.V. Chalapathi Rao and balance of sale consideration under

agreement of sale dated 25.12.1969 was paid by D. Gowri Shankara Rao and then only Rapeti Paradesi Naidu, his Son Venkata Govinda Rao and

Pentakota Suryanarayana executed sale agreement dated 12.07.1978 under

ExA.17 for entire land and handed over all the original documents to D. Gowri

Shankara Rao and even the defendant’s vendor or his father issued any notice to the vendor of plaintiff or questioning his sale of all plots by making a panchayath approved layout by means of filing suit for declaration.

13.Hence, the vendor of defendant Rapeti Venkata Govinda Rao has no right, title, possession or enjoyment over any piece of land in Sy. No.186 as the whole land was sold by his father Rapeti Paradesi Naidu, during his life time and that vendor of defendant has no right, title, possession or enjoyment 12

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PCJC (SD)/GWK. over the plaint schedule property in Sy. No.186 and that therefore the defendant cannot get any right through alleged sale deed since father of one of defendant’s vendor Pardesi Naidu has no land to sell the same even during his life time, how his son Rapeti Govinda Rao can get right and title. But the respondent tried to interfere into the schedule property. Hence filed suit. In support of her case, the plaintiff got examined P.Ws.1 to 4 and also got marked

Exs.A1 to A25. But trial Court did not consider the evidence of plaintiff. Further though the defendant got eschewed his evidence, the trial court dismissed the suit. Hence requesting the Court to consider the evidence of the appellants and allow the appeal.

14.On the other hand, the learned counsel for respondent contended that vendor of the appellant is not having good title in respect of schedule property. So that appellant is not having any title and right in respect of schedule property. The respondent is absolute owner of plaint schedule property by registered sale deed dated 21.11.2005 and that since then he has been in possession and enjoyment of the same and that subsequently, he entrusted construction of foundation for raising compound wall around the schedule property to Ch.V.V. Kumar and that the said Kumar has raised foundation around schedule property in the month of January, 2006. It is further contended that Kumar also issued a receipt dated 18.01.2006 and that the defendant has been in possession and enjoyment of the schedule property. Though the respondent’s evidence was eschewed, the appellants failed to prove their case, hence requesting the Court to dismiss the appeal also.

15.To get the permanent injunction, the appellant has to establish that appellant is having lawful possession and enjoyment of schedule property by the time of filing of the suit and their possession and enjoyment is in danger due to the acts of the respondent herein. As per the record, the appellants claimed that deceased 1st appellant/plaintiff Lakkimsetty Anuradha purchased 13

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PCJC (SD)/GWK. schedule property from one D. Gowri Shankara Rao under a registered sale deed dated 23.06.1999 under Ex.A1. As per the Ex.A1, schedule property situated in S.No.186 in plot No. 12 in an extent of 240 sq. yards. As per

Ex.A1, her vendor name is D. Gowri Shankara Rao. According to her, the said

D.Gowri Shankara Rao purchased property from Rapeti Paradesi Naidu, his son Venkata Govinda Rao, Penakota Suryanarayana and Pentakota Nagaraju under a registered sale deed dated 27.04.1970 and that since the date of sale, vendor of plaintiff Gowri Shanakra Rao had been in possession and enjoyment of the same. But the deceased 1st appellant/plaintiff did not file the said link document of her vendor i.e., registered sale deed dated 27-4-1970.

16.Further observed that deceased 1st appellant/plaintiff filed documents pertaining the flow of title from 1945 in respect of schedule property except link document of her vendor i.e., registered sale deed dated 27-4-1970. The Ex.A2 is certified copy of registered sale deed dated 16.05.1945 executed by Sirasapalli Kannayya to Margani Venkata Ramana in an extent of Ac.8.00 cents. Further observed that Rapeti Paradesi Naidu, his son Rapeti Venkata Govinda Rao, Pentakota Suryanarayana and Pentakota

Nagaraju who are sons of Pentakota Ramadasu purchased the same under a registered sale deed dated 25.06.1959 under Ex.A3. But the appellant claimed that in the said Ex.A3, schedule property extent shown as Ac.9.94 cents, instead of Ac.8.00 cents. But the appellant did not explain how extra extent was shown in Ex.A3. Further the appellant failed to explain whether they obtain any permission from the concerned Department to show the extra extent and to purchase the same. When the parties of Ex.A3 got registered extra land than the original land as per Ex.A2, they have to get proper permission. But in this case, this Court observed that they did not get any approval from concerned.

17.Further observed that that Rapeti Paradesi Naidu, Rapeti Venkata

Govinda Rao, Pentakota Suryanarayana and Pentakota Nagaraju executed a 14

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PCJC (SD)/GWK. sale agreement dated 25.12.1969 under Ex.A4 in favour of Bolla Bulli

Subbaraya Choudary and that at the time of execution, some amount was paid and subsequent payments were also shown on the reverse of agreement and that B.B.S. Choudary was continued in possession of plaint schedule property.

It is further contended that subsequently Rapeti Paradesi Naidu and Others executed G.P.A dated 23-04-1970 in favour of B.B.S. Choudary to develop the land in an extent of Ac.9.94 cents under Ex.A5. Thereafter B.B.S. Chowdary sold Ac.0.71 cents of western side of land in Sy. No.186 to D. Gowri Shankar

Rao by virtue of registered sale deed dated 27.04.1970. As earlier stated that appellant did not file sale deed dated 27-04-1970 to prove the title of her vendor by name Gowri Shankara Rao. Without establishing title of the vendor of the appellant, the 1st appellant can not claim her title and possession and enjoyment of the schedule property. Because when the respondent denied the title of the vendor of the 1st appellant, she has to remove such cloud by adducing sufficient evidence. As per record, the 1st appellant got examined

P.W.2 who is her husband. His evidence is only supporting her case as stated by her in the pleadings. Except that his evidence is not helped to 1st appellant to remove the cloud of her vendor’s title. Further observed that 1st appellant got examined P.W.s.3 and 4 who are attestors of Ex.A1 sale deed. Their evidence only to support the execution of the Ex.A1, but not helpful to prove the title of her vendor.

18.Further observed that the 1st appellant got marked Ex.A23 which is vacant land pass book and Ex.A25 which is certified copy of decree and

Judgment in O.S.No.196/2005. As per Ex.A23 vacant land pass book issued in the name of the 1st appellant. Though the Ex.A23 stands in the name of the 1st appellant, it is not the document to prove the title of her vendor. The Ex.A25 shows that one Tankala Madhavi who is the plot owner of plot No. 263 in

S.No.186 of Chinagantyada and in the said suit schedule, the plot number of the 1st appellant shown as western boundary. Hence, the learned counsel for 15

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PCJC (SD)/GWK. appellant claimed that schedule property is in existence and requesting the

Court to consider the same. But this Court observed that the respondent did not deny the existence of suit schedule property, he denied the title of vendor of the 1st appellant. It is to be established by the appellant. In the suit for permanent injunction, the title of the appellant and her vendor is not to be decided when the other side not denied. But when the other side denied the title of the vendor of the appellant, the burden lies on the appellant to prove the title of her vendor, failing which, the appellant’s title, lawful possession and enjoyment will be in danger. Hence, the Exs.A23 and A25 are not considered to prove the title of her vendor. Since appellant did not file the title document of her vendor i.e., registered sale deed dated 27.04.1970, opined that appellant failed to prove title of her vendor.

19.Further observed that the appellant claimed that on 05.05.2007, while the 1st appellant was making preparations to construct a pucca compound wall around her purchased site, respondent without having any manner of right, title, possession or enjoyment over the plaint schedule property, came there and high handedly tried to dispossess the plaintiff from plaint schedule property and to occupy the same and that the plaintiff protested the acts of the defendant with the help of the neighbours and that the defendant left away by proclaiming that the schedule property belongs to him and he would occupy the same. But the appellant did not adduce any sufficient evidence to prove the cause of action dated 05-05-2007. Because to get the relief of permanent injunction, the appellant not only to establish lawful possession and enjoyment, but also to establish that the said lawful possession is effecting due to the acts of the respondent. In the present case, 1st appellant filed suit as the respondent tried to interfere into possession and enjoyment of the 1st appellant on 05-05-2007, the burden lies of the appellant to prove the same. Since the appellant did not adduce any evidence to prove the cause of action dated 05-05-2007, this Court opined that appellants failed 16

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PCJC (SD)/GWK. to prove their case. On the above reasons, this Court opined that the appellants are not entitled for the relief as prayed.

20.In the result, appeal is dismissed without costs confirming the

Judgment and the Decree dated 24.11.2017 in O.S.No.247/2007 on the file of

Civil Judge (Junior Division), Gajuwaka.

Typed to my dictation by Stenographer Gr. II, corrected and pronounced by me in open court this the 20 th day of December, 2024.

Sd/- E. Rajendra Babu,

Principal Civil Judge,

(Senior Division), Gajuwaka. Sd/- P. Kesavacharyulu,

APPENDIX OF EVIDENCE

For Appellants: For Respondent:

No additional oral or documentary evidence is adduced on either side in this appeal.xx

Sd/- Sri R.Scharyulu,

Sd/- E. Rajendra Babu,

PCJ (SD)/GWK.

1 C.C. 621/2020 III ACMMC, GWK

IN THE COURT OF III ADDL. CHIEF METROPOLITAN MAGISTRATE,

VISAKHAPATNAM AT GAJUWAKA.

PRESENT: Sri E.Rajendra Babu, III Additional Chief Metropolitan Magistrate, Gajuwaka

Tuesday, this the 07th day of November, 2023

C.C.621/2020

This case having come up on 18.10.2023 for final hearing

before me in the presence of learned Public Prosecutor for the

complainant and of Sri.M. Shanthilearned Advocates for the A1 and of

Sri.BTV Prasad learned Advocate for A2 and having heard the arguments and the matter having stood over for consideration till this day, this court delivers the following::

JUDGMENT

a.The Serial No. of the case: C.C.621/2020 b.The date of offence : 12.09.2020 c.The name of the complainant: The State represented by the Sub Inspector of Police, Gajuwaka Crime P.S., Visakhapatnam City. d.The name of the accused: A1: Muppidi Krishna Prasad, S/o Chinna Rao, aged about 22 years, Madiga,R/oD.No.23-41-8/2, Dayala Nagar lova, Nadupuru, Pedagantyada, Visakhapatnam.

A2: Aabothula Bharath @ Bhargav, S/o Demullu, aged about 21 years, Neyyila, R/o D.No.9-2-9/26, near Navata Transport, High School road, Gajuwaka, Visakhapatnam, N/o Vechalam Village, Devarapalli Mandal, Visakhapatnam.

e.The offence complained of: Under Section 457, 380 and 411 of Indian Penal Code. f.The plea of the accused & their: When examined Under Section 239 of Cr.P.C. accused pleaded not examination, if any guilty. When examined Under Section 313 of Cr.P.C. accused denied the incriminating material. g.Final order 2 C.C. 621/2020 III ACMMC, GWK

The accused is tried for the offence punishable Under Sections 457, 380 and 411 of Indian Penal Code in Cr.No.961/2020.

2.The case of the prosecution, in brief, is that on 12.09.2020 at about 09.30 hours L.W.1 reported that early hours about 03.30 hours, he listened sounds from his house and woke up and he noticed the main door was opened and some unknown persons came out from the house and he observed an amount of Rs.8,300/- was stolen from the desk, when tried to catch them, three persons absconded, and he can identify them if seen. Basing on the report of L.W.1, L.W.5 registered a case in

Cr.No.961/2020, U.Sec.457, 380 of IPC. L.W.6 G. Venkata Rao visited the scene of offence, examined the same, and L.W.6 G. Venkata Rao arrested the marginally noted accused A1 & A2 and a CCL at Vikas Nagar near Priyadarsini stadium, in the presence of L.Ws.3 and 4 recorded their confession, recovered Rs.3,300/- from A1, Rs.2,500/- from A2 and

Rs.2,500/- from the CCL, and produced A1 & A2 before the Hon’ble

Court. After completion of investigation, L.W.6 G.Venkata Rao filed charge sheet against A1 and A2 U.Sec.457, 380 of IPC.

3.A perusal of the record, cognizance is taken on 21.04.2022 for the offence punishable Under Sections 457, 380 and 411 of Indian Penal

Code against accused.

4.On appearance of A1 and A2, copies of documents were furnished to him under section 207 of Cr.P.C. and he was examined under section 239 of Cr.P.C. for the offence punishable under sections Sections 457, 380 and 411 of Indian Penal Code and Charge were framed for the same, read over and explained to the accused in Telugu. On understanding the 3 C.C. 621/2020 III ACMMC, GWK contents of the same, the accused are pleaded not guilty and claimed to be tried.

5.In the course of prosecution evidence, P.W.1 to P.W.3 are examined and the Exs.P.1 to P.4 are marked and also M.O.1 is marked.

6.After closure of prosecution evidence, Accused were examined under section 313 Cr.P.C., explaining the incriminating evidence that has come on record through prosecution witnesses, to which, they reported that no defence evidence on their behalf.

7.Heard the learned Assistant Public Prosecutor for the prosecution and the learned counsel for accused and perused the evidence, oral and documentary, on record.

8.Now, the point for determination is whether the prosecution proved the guilt of accused for the offence punishable Under Sections

Sections 457, 380 and 411 of Indian Penal Code of Indian Penal Code, beyond all reasonable doubt?

9.POINT:

The learned APP contended that the accused entered into the house and committed theft of cash of Rs.8,300/-. To support of the prosecution case, the prosecution examined P.W.1 to P.W.3 and marked Ex.P.1 to P.4 and also M.O.1 is marked and established that the accused committed the offence punishable under Sections Sections 457, 380 or 411 and requesting the court punish the accused.

10. On the other hand the learned counsel for the accused contended that the accused never committed any offence but police foisted false case against the accused. The police never seized any property from the possession of the accused and Ex.P.2 mediator report 4 C.C. 621/2020 III ACMMC, GWK prepared in the police station. Hence requesting the court to acquit the accused as the prosecution failed to establish the case.

11. As per record, to prove the case, the prosecution examined P.W.1 to

P.W.3 and got marked Ex.P.1 to Ex.P.4 and also M.O.1 is marked. The

P.W.1 deposed in his evidence that on 12.09.2020 and he stated that on hearing sounds, his son L.W.2 B. Jain woke up and found all the doors are opened and seeing three unknown persons escaping from his shop, and on verifying found missing of cash of Rs.8,300/-, on the next day

P.W.1 gave Ex.P.1 report, one week thereafter the police informed that they recovered M.O.1 i.e., cash of Rs.8,300/-.

12.P.W.1 admitted in his cross examination that he has not mentioned the denomination of cash in his report, and he has not stated before the

Police about the denomination of the cash, and not mentioned in his report as his son heard some sound and woke up and also not stated

before the Police about the same, and P.W.1 not stated before the Police

and in Ex.P.1 as three unknown persons escaping, and he has not seen when the said 3 persons escaping, and he did not know how the accused entered into his house because no locks were broken.

13.P.W.2 who is the mediator deposed in his evidence that he cannot say the crime number, on that P.W.2 went to Police Station at about 10.00 am, and noticed another person by name Kundan Kumar i.e.,

L.W.4. There the SI of Police briefed and informed that they proceed to

Vikas Nagar, Priyadarshini Stadium. Thereafter they proceeded to Vikas

Nagar and reached at about 10.40 am, on seeing the police vehicle 3 persons started escaping but police caught them and enquired separately in their presence. One person confessed that his name is

Krishna Prasad and he involved in previous cases like theft and also 5 C.C. 621/2020 III ACMMC, GWK recently committed theft in the house and stolen cash of Rs.8,300/- along with two persons Bharathi and Sai. Further confessed that they divided the said amount to three persons. The other persons confessed that their names are Bharath and Sai and also confessed the same as well as Krishna Prasad. On that Police seized cash of Rs.8,300/- from the accused No.1 to 3 out of which Rs.3,300/- from Krishna Prasad and

Rs.2,500/- from Bharath and cash of Rs.2,500/- from Sai. To his remembrance the Sai age under 19 and thereafter the entire proceedings incorporated under the Ex.P.2 mediator report, P.W.2 along with L.W.4 put their signatures on Ex.P.2, thereafter SI of Police and A1 to

A3 put their signatures.

14. P.W.2 admitted in his cross examination that he got acquaintance with the SI of Police, Gajuwaka and so that he called him to the police station, and he went to the police station in the year, 2019 in the connection of lost of his cell phone, and he cannot say the denomination of the seized amount from the accused.

15.Further P.W.3 who is the investigation officer deposed in his evidence that on 12-09-2020 P.W.1 came to Police station and lodged a report and L.W.5 registered a case in Cr.No.961/2020 for the offence punishable U.Sec.457, 380 of IPC under Ex.P.3, thereafter L.W.5 endorsed the case to him for further investigation and P.W.3 visited the scene of offence and secured L.W.1 and L.W.2 and examined the recording the statements and also prepared Ex.P.4 rough sketch. On 12-09-2020 P.W.3 secured L.W.3 and 4 and proceeded Vikas Nagar, Priyadarshini stadium and on seeing the Police, A1, A2 and juvenile conflict tried to escape from that place and caught accused and enquired separately in the presence of L.W.3 and 4 and their confessed that accused committed 6 C.C. 621/2020 III ACMMC, GWK theft cash of Rs.8,300/- from A2, Rs.2,500/- from Juvenile conflict with law under cover of Ex.P.2 mediator report, and sent to judicial custody.

After completion of investigation filed charge sheet.

16.P.W.3 admitted in his cross examination that he has not examined the neighbour of the P.W.1, and he never secured the neighbour of the

P.W.1 as mediators in this case. L.W.3 and L.W.4 are residents of the same locality of P.W.1, and he never prepared rough sketch at Vikas

Nagar, Priyadarshini stadium, and he never secured mediators are witnesses at Vikas Nagar, Priyadarshini stadium, and P.W.3 not mention the denomination of the seized property in Ex.P.2.

17. Herein the present case, as per the evidence of P.W.1 and Ex.P.1 report, M.O.1 i.e., cash of Rs.8,300/- found missing in the house of the

P.W.1. As per the evidence of the P.W.1, his son L.W.2 seen three unknown persons escaping from his son. Admittedly the L.W.2 was not examined by the prosecution. The P.W.3 who is the investigating officer did not take steps to arrange the test identification parade with the

L.W.2 to identify the accused. Further observed that P.W.2 who is one of the mediators deposed that the police seized the M.O.1 from possession of A1 to A2 and other and out of which Rs.3,300/- from A1 and

Rs.2,500/- from A2 and cash of Rs.2,500/- and cash of Rs.2,500/- from

Sai under cover of the Ex.P2 mediator report. Admittedly the P.W.3 investigating officer did not follow the procedure while arrest and seizure of the property.

18. As per section 100 Cr.P.C., Persons in charge of closed place to allow search.

(1) Whenever any place liable to search or inspection under this Chapter is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or 7 C.C. 621/2020 III ACMMC, GWK other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein.

(2) If ingress into such place cannot be so obtained, the officer or other person

executing the warrant may proceed in the manner provided by sub- section (2) of

section 47.

(3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency.

(4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

(5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.

(6) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search. and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person.

(7) When any person is searched under sub- section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person.

(8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code (45 of 1860 ).

19.In the present case, the P.W.3 investigating officer did not secure inhabitant persons while arrest the accused and seized the property. The

P.W.2 admitted in the cross examination that the he has acquaintance with the P.W.3 and he went to the police station in connection with his personal case. As per the record, the scene of offence is situated in busy 8 C.C. 621/2020 III ACMMC, GWK located area and the P.W.3 can secure mediators at the scene of offence. This court not found any reasons for securing the P.W.2 and another mediators at the police station without arrest the accused. It shows that the P.W.3 violated the procedure as contemplated in section 100 Cr.P.C. In this circumstances, this court inclined to apply the observations of the Hon’ble Supreme Courtin State of Punjab Vs Balbir singh 1994 SCC (3) 299, it has been held that At this juncture we may also dispose of one of the contentions that failure to comply with the provisions of CrPC in respect of search and seizure even up to that stage would also vitiate the trial. This aspect has been considered in a number of cases and it has been held that the violation of the provisions particularly that of Sections 100 , 102 , 103 or 165 CRPC strictly per se does not vitiate the prosecution case. If there is such violation, what the courts have to see is whether any prejudice was caused to the accused and in appreciating the evidence and other relevant factors, the courts should bear in mind that there was such a violation and from that point of view evaluate the evidence on record. Under Section 100 CrPC the officer

conducting search under a warrant should call upon two or more independent and

respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and Witness the search. Section 165 CRPC lays down that whenever an officer-in-charge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in- charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer after recording in writing the grounds of his belief

and specifying in such writing, may proceed to search or to cause search to be

made. Section 165(4) lays down that the provisions of this Code as to search warrants 9 C.C. 621/2020 III ACMMC, GWK and the general provisions as to searches contained in Section 100 shall, so far as may be, apply to a search made under Section 165 also. The scope of these two sections have been examined in a number of cases. In State of Punjab v. Wassan Singh , this Court has clearly held that irregularity in a search cannot vitiate the seizure of the articles. In

Sunder Singh v. State of U.P .2 it is held that irregularity cannot vitiate the trial unless the accused has been prejudiced by the defect and it is also held that if reliable local witnesses are not available the search would not be vitiated. In State of Maharashtra v.

P. K. Pathak3 it is held that 1 (1981) 2 SCC 1: 1981 SCC (Cri) 292 2 AIR 1956 SC 411:

1956 Cri L.J 801 3 (1980) 2 SCC 259: 1980 SCC (Cri) 428: AIR 1980 SC 1224 absence of any independent witness from the locality to witness the search does not affect the trial and the conviction of the accused under the Customs Act . In Radha Kishan v. State of Up .4 it is held that irregularity in a search would, however, cast a duty upon the court to scrutinise the evidence regarding the search very carefully. In Matajog Dobey v. H.C.

Bhari5 it is held that when the salutory provisions have not been complied with, it may, however, affect the weight of the evidence in support of the search or may furnish a reason for disbelieving the evidence produced by the prosecution unless the prosecution properly explains such circumstance which made it impossible for it to comply with

these provisions. In State of Maharashtra v. Natwarlal Damodardas Soni6 after

referring to the above- mentioned decisions, this Court observed as under: (SCC p. 673, para 9) "Taking the first contention first, it may be observed that the police had powers under the Code of Criminal Procedure to search and seize this gold if they had reason to believe that a cognizable offence had been committed in respect thereof. Assuming arguendo, that the search was illegal, then also, it will not affect the validity of the seizure and further investigation by the Customs Authorities or the validity of the trial which followed on the complaint of the Assistant Collector of Customs."

It therefore emerges that non-compliance of these provisions i.e. Sections

100 and 165 CrPC would amount to an irregularity and the effect of the

same on the main case depends upon the facts and circumstances of each

10 C.C. 621/2020 III ACMMC, GWK

case. of course, in such a situation, the court has to consider whether any

prejudice has been caused to the accused and also examine the evidence in

respect of search in the light of the fact that these provisions have not been

compiled with and further consider whether the weight of evidence is in any

manner affected because of the non-compliance. It is well settled that the

testimony of a witness is not to be doubted or discarded merely on the

ground that he happens to be an official but as a rule of caution and

depending upon the circumstances of the case, the courts look for

independent corroboration. This again depends on question whether the

official has deliberately failed to comply with these provisions or failure was

due to lack of time and opportunity to associate some independent witnesses

with the search and strictly comply with these provisions.

At this stage if there is any non- compliance of the provisions of Section

100 or Section 165 CrPC that by itself cannot be a ground to reject the

prosecution case outright. The effect of such non- compliance will have a

bearing on the appreciation of evidence of the official witness and other

material depending upon the facts and circumstances of each case.

20On applying the above decisions, this court opined that since the pw3 did not follow the procedure as per section 100 Cr.P.c and the role of P.W.2 is in suspicious, this court not considered the evidence of pw2. Since the prosecution failed to prove the arrest and seizure with sufficient evidence this court opined that accused found not guilty.

21. With regard to the compensation to the P.W.1, as per principles of Hon’ble Supreme Court in Criminal Appeal No. 689 of 2013

(Arising out of S.L.P. (Crl.) No. 6287 of 2011). Case: Ankush Shivaji

Gaikwad Vs State of Maharashtra. Supreme Court (India), While the award

or refusal of compensation in a particular case may be within the Court's

discretion, there exists a mandatory duty on the Court to apply its mind to

the question in every criminal case. Application of mind to the question is

best disclosed by recording reasons for awarding/refusing compensation. It

is axiomatic that for any exercise involving application of mind, the Court

ought to have the necessary material which it would evaluate to arrive at a

fair and reasonable conclusion. It is also beyond dispute that the occasion to

11 C.C. 621/2020 III ACMMC, GWK

consider the question of award of compensation would logically arise only

after the court records a conviction of the accused. Capacity of the accused

to pay which constitutes an important aspect of any order under Section

357 Cr.P.C. would involve a certain enquiry albeit summary unless of course

the facts as emerging in the course of the trial are so clear that the court

considers it unnecessary to do so. Such an enquiry can precede an order on

sentence to enable the court to take a view, both on the question of sentence

and compensation that it may in its wisdom decide to award to the victim or

his/her family.

But in the present case, the prosecution failed to prove that the accused committed an offence and also this court not found any circumstances to award compensation to the P.W.1. Hence this court opined that it is not fit case to award compensation to the P.W.1.

Since the prosecution failed to prove the guilt of the accused beyond all reasonable doubt for the offence punishable under section 457, 380 and 411 IPC, accused found not guilt. Accordingly the point is answered.

22. In the result, A1 and A2 are found not guilty for the offence punishable Under Sections 457, 380 and 411 of Indian Penal

Code and they are acquitted under section 248 (1) Cr.P.C. M.O.1 i.e., Cash of Rs.8,300/- which was given to P.W.1 for interim custody shall holds good after expiry of appeal time.

The Superintendent, Central Prison, Visakhapatnam is directed to release the A1, forthwith, if, he is not required in any other cases.

Typed to my dictation by the Stenographer, Gr.III, corrected and pronounced by me in open court on this, the 07th day of November, 2023.

Sd/- E.Rajendra Babu,

III Addl. Chief Metropolitan Magistrate, Gajuwaka.

12 C.C. 621/2020 III ACMMC, GWK

Appendix of Evidence

No. of Witnesses examined for:

Complainant:

P.W.1 … Monoj Jain

P.W.2 … S. Jaya Surya

P.W.3 … G. Venkata Rao

Defence: None

No. of Exhibits marked for:

Complainant:

Ex.P.1 …Report

Ex.P.2 …Mediator Report

Ex.P.3 … First Information Report

Ex.P.4. Rough Sketch

Defence:Nil

Number of M.O.s marked

M.O.1: Cash of Rs.8,300/-

E.Rajendra Babu, III ACMM/GWK. CMM/GWK // True copy// 13 C.C. 621/2020 III ACMMC, GWK

CALENDER AND JUDGMENT

IN THE COURT OF III ADDITIONAL CHIEF METROPOLITAN

MAGISTRATE, VISAKHAPANTAM

Judgment in :C.C.621/2020

Date of Offence : 12.09.2020

Date of filing: 12.09.2020

Release on bail: On bail

Commencement of trial : 10.10.2023

Close of trial : 03.11.2023

Sentence or Judgment : 07.11.2023

Explanation for delay and rem arks: The delay is due to non production of the witnesses by complainant.

C.C.No.621/2020 on the file of III Additional Chief Metropolitan Magistrate, Gajuwaka against accused .

The name of the complainant :The State represented by the Sub Inspector ofPolice,GajuwakaP.S.,(Crime) Visakhapatnam City. The Name of the accused :A1: Muppidi Krishna Prasad, S/o Chinna Rao, aged about 22 years, Madiga, R/o Parentage & Residence D.No.23-41-8/2, Dayala Nagar lova, Nadupuru, Pedagantyada, Visakhapatnam. A2: Aabothula Bharath @ Bhargav, S/o Demullu, aged about 21 years, Neyyila, R/o D.No.9-2-9/26, near Navata Transport, High School road, Gajuwaka, Visakhapatnam, N/ o Vechalam Village, Devarapalli Mandal, Visakhapatnam. Offence:Under Section 457, 380 and 411 of Indian Penal Code. Finding:A1 and A2 are found not guilty.

Sentence:In the result, A1 and A2 are found not guilty for the offence punishable Under Sections 457, 380 and 411 of Indian Penal Code and they are acquitted under section 248 (1) Cr.P.C. M.O.1 i.e., Cash of Rs.8,300/- which was given to P.W.1 for interim custody shall holds good after expiry of appeal time. The Superintendent, Central Prison, Visakhapatnam is directed to release the A1, forthwith, if, he is not required in any other cases.

E.Rajendra Babu,

Sd/-E.Rajendra Babu

III Addl.Chief Metropolitan Magistrate, Gajuwaka//Tr 14 C.C. 621/2020 III ACMMC, GWK 15 C.C. 621/2020 III ACMMC, GWK

1

CC 3/2018/IIIACMMC/GWK

IN THE COURT OF III ADDL. CHIEF METROPOLITAN MAGISTRATE,

VISAKHAPATNAM AT GAJUWAKA

PRESENT: Sri E.Rajendra Babu, III Additional Chief Metropolitan Magistrate, Gajuwaka.

Friday,this the 03rd day of November, 2023

C.C.No.3/2018

This case was coming on 31.10.2023 for final hearing before me in the presence of learned Asst.Public Prosecutor for Prosecution and of learned Sri. N. Vasanta Kumar learned Advocate for accused and upon hearing his arguments and having stood over for consideration till this day, the court delivered the following:

J U D G M E N T

a.The Serial No. of the case: C.C.No.3/2018 b.The date of offence : 20.11.2017 c.The name of the complainant: The State represented by Sub Inspector of Police, Gajuwaka Police Station, Visakhapatnam City. d.LenkaSatyanarayana,S/oI. The name of the accusedSimhachalam, aged about 52 years, casteby BC-B, DattiVillage,

:

Balighattam Post, Kothavalasa Mandal, Viziangaram Dist. Driver of Lorry AP 37W1012, Cell NO.7666981757. e.The offence complained of: Under Section 304-A of Indian Penal Code. f.The plea of the accused &: When examined Under Section 251 of their examination, if anyCr.P.C. accused pleaded not guilty. When examined Under Section 313 of Cr.P.C. accused denied the incriminating material. g.Final order:

1.The accused is tried for the offence punishable Under Section of Indian

Penal Code. in Cr.No.738/2017.

2.The case of the prosecution, in brief, L.W.1 is the defacto complainant in this case, wife of the deceased came to Police Station, Gajuwaka P.S., on 21.11..2017 at 09.30 hours and presented a report stating that her husband 2

CC 3/2018/IIIACMMC/GWK

Janapareddy Satyanarayana is working a contract labour at Autonagar. On 20.11.2017 night at 11 pm, her husband went to Gajuwaka on his motor cycle bearing No.AP 31DK 0947 along with L.W.2 to bring breakfast to his home and little later, L.W.2, her younger brother Gnanesh called over phone and informed her that as they thought that there was no tiffin available at Gajuwaka, her deceased husband, took U turn at Autonagar Junction with a view to return his house, took U-turn at Autonagar Junction with a view to return his house, by which time, the accused driver of one lorry bearing Reg.No.AP37 w 1012, which was coming from NAD Kotta Road, going into Autonagar side drove the same in a rash and negligent manner and dashed their motor cycle, dragged his deceased brother in law to same distance, who received severe injuries on his forehead and other parts of his body and died on the spot. L.W.2 her younger brother

Gyanesh, fell down and escaped unhurn, L.W.6, the Gateway Mobile Police Patrol

Vehicle had shifted the dead body of her deceased husband to KGH. Basing on the report, L.W.14 registered a case in Cr.No.738/2017, U.Sec.304-A of IPC and

L.W.15 Sub Inspector of Police, Gajuwaka examined the witnesses and recorded their statements and visited the scene of offence and inspected the same and prepared rough sketch of the crime scene and got the scene of offence photographed.

During the course of investigation, L.W.15 Sub Inspector of Polcie conducted inquest over the dead body of the deceased on 21-11-2017 in presence of Panchayatdars opined that the deceased died due to rash and negligent driving of the driver of crime vehicle lorry No.AP 37 W 1012. L.W.13

Asst. Professor, KGH, Visakhapatnam who opined that the deceased died due to

Haemorrhage and shock due to multiple injuries. L.W.12 Asst. Motor Vehicle

Inspector, Gajuwaka issued Accident report who opined that the accident was not occurred due to not any mechanical defects of both crime vehicle Lorry bearing No.AP 37W1012 as well as due to Motor cycle bearing Reg. No.AP 31DK0947 of the deceased. L.W.15 Sub Inspector of Police issued 41-A of Cr.P.C.

3

CC 3/2018/IIIACMMC/GWK

notice to the accused and enlarged him on bail on 22-11-2017. After completion of investigation he filed charge sheet against the accused.

3.A perusal of the record, cognizance is taken on 02.01.2018 for the offence punishable Under Sections 304-A of Indian Penal Code against accused.

4.On appearance of Accused, copies are furnished to the accused under

Sec.207 of the Code of Criminal Procedure.

5.The accused is examined under Sec. 251 Cr.P.C. for the offence punishable

Under Sections 304-A of Indian Penal Code for which he pleaded not guilty and claimed to be tried.

6.In the course of prosecution evidence, P.W.1 to P.W.8 are examined and the Exs.P.1 to P.7 are marked.

7.After closure of prosecution evidence, Accused was examined under section 313 Cr.P.C., explaining the incriminating evidence that has come on record through prosecution witnesses, to which, he reported that no defence evidence on his behalf.

8.Heard the learned Assistant Public Prosecutor for the prosecution and the learned counsel for accused and perused the evidence, oral and documentary, on record.

9.Now, the point for determination is whether the prosecution proved the guilt of accused for the offence punishable Under Section 304-A of Indian

Penal Code beyond all reasonable doubt?

10.POINT:

Thelearned Assistant Public Prosecutor argued that the accused driver of the crime vehicle drove the same in rash and negligent manner and caused death to the P.W.1’s husband. The evidence of the P.Ws.1 to 8 categorically stated that the accused drove the vehicle in rash and negligent manner and committed the offence. Hence request the court to punish the accused.

11. On the other hand the the learned counsel for the accused filed written arguments contended that P.W.1 evidence has no weight and also she is highly 4

CC 3/2018/IIIACMMC/GWK

interested witness because the deceased is her husband, the evidence of P.W.1 is not proving the case against the accused. There is lot of contradiction in the evidence of P.W.2 and he is not considered as eye witness due to his evidence and also he is interest witness because the deceased is the husband of the

P.W.2’s sister i.e., P.W.1. As per Hon’ble the Apex Court in Nand Lal Vs.

State of Chhattisgarh in CRIMINAL APPEAL NO.1421 of 2015 on 14 th

March, 2023, has been held that the accused can not be convicted on

basis of oral testimony of the interested witness without corroboration

would not be sustainable.

12.The learned advocate for accused further contended in his written arguments that P.W.5 who is investigation officer admitted in his cross examination that he has not stated before the Police that he can identify the accused, and P.W.6 also admitted in his cross examination that he did not know the contents which is quiet contradiction to his chief. As per the scene observation report the drafting started at 10.15 and closed at 11.15 but not as deposed by the P.W.6 and also the investigation offiver stated that he picked him on the road but not at Bangaramma Temple at Natayyapalem, so these contradiction are clearly establishing that the P.W.6 is not present at the time of the scene observation report so the evidence of the P.W.6 is no reliable, he was brought by the prosecution due to one person failed to established the case, so his evidence is planted by the prosecution, there is no weight to establish the scene observation report.

13.The learned counsel for the accused further contented in his written arguments that P.W.6 who is the Motor Vehicle Inspector admitted in his cross examination that there is a possibility to cause the damages found by P.W.6 to the bike if drove rashly and hit anything, so the evidence is not supporting to the prosecution to prove the case. P.W.6 who is the head constable not stated that he noticed the accused and P.W.2 and also deposed that he secured L.W.10 and

L.W.11 at Natayyapalem Road and also admitted the P.W.2 never stated that he 5

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sustained injuries and also admitted that he has not seized the truck sheet (which is very important to establish the driver and owner of the lorry and also the root map). The prosecution failed to prove the case against the accused and he is liable to acquitted. As per judgment of Honourable High Court of

Andhra Pradesh 2009 0 Supreme Court (AP) 269 on 17 th April, 2009 in B.

Parmesh Vs. State of Andhra Pradesh, has been held that National

High way or in a main road if drives speed they cannot found fault for

driving the vehicle at speed, therefore mere driving the vehicle at high

speed cannot be said to a rash and negligent manner with the ambit of

Section 304-A or 338 of IPC. Hence requesting the court acquit the accused.

14.As per the record the P.W.1 who is wife of the deceased deposed that on receipt of phone call from L.W.2 on 20-11-2017, came to know that her husband met with an accident and died and she also received the same message by her mother in the same phone and came to know that her husband died in the spot.

On the next day P.W.1 went to KGH, Visakhapatnam and one person who conduct postmortem to ask her to put his signature as wife on the inquest report but

P.W.1 has not put her signature on the inquest report, thereafter on 21-11-2017

P.W.1 gave Ex.P.1 report. In her cross examination denied the suggestion that she was never examined by police.

15.P.W.2 who is the eye witness deposed in his evidence that on 20-11-2017 at about 11.00 pm., he along with his uncle J.Satyanarayana proceeded to from

Nathayyapalem to Gajuwaka to take tiffin by bike bearing No.AP 31 DK 0947 and reached auto Nagar and tried to take u-turn by giving signal but meanwhile one lorry bearing No.AP 37 W 1012 in speedy manner without blowing horn and hit the motor cycle. On that P.W.2 fell down some other place and the lorry run over his uncle. Thereafter the lorry stopped at the said place by the said driver. By that time his uncle already passed away. On that P.W.2 telephoned to P.W.1 by name Anusha. Thereafter body shifted to KGH and he seen the driver on the 6

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said date of incident and P.W.2 can identify the driver. The witness identified the accused as a driver in the court hall and he was examined by police.

16.P.W.2 admitted in his cross examination that he has not stated before the

Police as he gave blows on the chest of his uncle of the incident, and he has not stated before the police about the physical features of the accused and not stated as he can identify the accused, P.W.2 has stated before the police the specific time of which they started from their house and the time about the incident.

17.P.W.3 deposed in his evidence that he know the deceased. On 21-11-2017 on receipt of information that deceased Satyanaryana passed away on that he went to KGH, Visakhaptnam mortuary and he was present at the time of inquest along with L.Ws.8,9, 10, 11, and he know the contents of Ex.P.1 inquest report and P.w.3 put his signature on Ex.P.2.

18.Further P.W.4 who is Head constable deposed in his evidence that on receipt of wireless set message at autonagar Junction, accident occurred.

Immediately they proceeded to auto nagar junction and noticed one person died already and also noticed one lorry bearing No.AP 37 W 1012 and also one bike bearing No.AP 31 DK 0947 Hero Honda Splander and also the driver of the lorry and pillion rider of the bike who got small injuries. Thereafter P.W.1 shifted the dead body to KGH through get away mobile vehicle, P.W.6 can identify the lorry driver, the witness identified the lorry driver in the open court. P.W.4 admitted in his cross examination that he has not filed any document to show that he was on duty on the date of the incident and he did not stated before the police about the physical features of the lorry driver.

19.P.W.5 who is the relative of the deceased deposed in his evidence that on 21-11-2017 he went to KGH and attended inquest the dead body of J.

Satyanarayana, and he noticed the driver relatives of deceased and police at the time of inquest, and P.W.5 put his signature on inquest report, and he know the contents of inquest, prior to that the police accompanied him along with L.W.9, 7

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L.W.8, L.W.7 to Autonagar and shown the scene of offence and asked them to come to KGH since the deceased is knowing to them, and P.W.5 never put his signature at Autonagar on any proceedings. P.W.5 admitted in his cross examination that the deceased J.Satyanarayana and P.w.5 are the same caste and same village and also distant relative.

20.P.W.6 who is Asst. Motor Vehicle Inspector deposed in his evidence that on receipt of requisition from Gajuwaka law and order police on 22-11-2017 to inspect vehicle bearing No.AP 31 W 1012, goods carriage and AP 31 DK 0947 motor cycle, and P.W.6 inspect the crime vehicle and conducted road test to the goods carriage and found small scratches on front wheel tyre and found damages on motor cycle front brake leveler broken, rare brake light damage and rare mud guard broken and P.W.6 opined that the accident was not due to many mechanical defects of the crime under Ex.P.3 AMVI report.

21.P.W.6 admitted in his cross examination that he did not know when the accident occurred, after receipt of requisition he inspect the vehicle, there is a possibility to any vehicle which is at the police station to make repair and to make damage, and there is a chance to cause the damages found by P.W.6 to the two wheeler if any two wheeler drove rashly and hit any thing, and Police not handed over any licenses and vehicle any documents of two wheeler.

22.Further P.W.7 who is the resident of deceased village deposed in his evidence that on 21-11-2017 he came to know about the accident and while he was at Bangaramma temple, Nathayyapalem, the SI of police came to him and asked him to come to scene of offence and himself and P.W.5 went to the scene of offence. In their presence police prepared some sketch and also prepared one report and P.W.7 along with P.W.5 put their signatures on the said report, and he knows its contents by the time P.w.7 put his signature. Ex.P4 is the scene observation report, and thereafter they proceeded to KGH mortuary, VSKP and police obtained his signatures on panchanama, and he did not remember the said panchanama. The witness identified his panchanama. P.W.7 admitted in 8

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his cross examination that he did not know the contents of the Ex.P.4 report since the police drafted the same, and P.W.7’s caste and deceased caste is one and the same,

23.P.W.8 who is the investigation officer deposed in his evidence that on 21- 11-2017 P.W1 came to police station and lodged report and LW14 Inspector of

Police registered the case in Cr.No.738/2017 for the offence punishable U/s 304-

A IPC under Ex.P5 FIR. Thereafter the L.w14 endorsed the case to him for further investigation. On the same day P.W.8 examined L.W.1 and 2 and recorded their statements. Thereafter on the same day P.W.8 visited the scene of offence and prepared Ex.P.6 rough sketch and secured mediators LW10 and 11 and prepared scene observation report, and P.W.8 got conducted inquest and prepared inquest report, and he sent requisition to L.w13 to conduct Postmortem and also sent requisition to L.W.12 to inspect crime vehicle. On 22-11-2017 P.W.8 served notices U/s 41-A Cr.P.C., to the accused and released him and during his investigation P.W.8 received Ex.P.7 postmortem certificate from LW13, and thereafter he received AMVI report from LW12. After completion of investigation he filed charge sheet. P.W.8 admitted in his cross examination that he never seized any work sheet in this case, and he did not mention the date and time of preparation of the rough sketch on Ex.P.6 and Ex.P.6 is not having any specifications to show that the accused vehicle dragged the deceased.

24.To establish the case for the offence punishable under section 304-A IPC, the prosecution has to establish that the accused the driver of the crime vehicle and drove the same in rash and negligent manner and caused death. In the present case, the P.W.1 is the wife of the deceased and she deposed that she came to know about the accident through the L.W.2 who is her brother. As per the prosecution case the deceased and the P.W.2 travelled on two wheeler from

Nathayampalem to Gajuwaka to have tiffin and reached Autonagar and tried to take U-turn, meanwhile the accused drove Lorry bearing no. AP 37 W 1012 without blowing horn and hit the motor cycle and in that result the pillion rider 9

CC 3/2018/IIIACMMC/GWK

the P.W.2 fell down and the Lorry run over by his uncle and thereafter the driver stopped at that place and his uncle succumbed to the injuries.

25. As per the record, the P.W.2 did not receive any injuries in the said incident though he fell down from the two wheeler after the accused lorry allegedly hit the two wheeler. Further observed that the P.W.2 admitted in his cross examination that he got injuries in the said accident. But he never got any treatment in this case. The investigation officer P.W.8 also admitted that the

P.W.2 never stated to him that he got injuries and he got treatment in the hospital. Admittedly no wound certificate of P.W.2 filed in this case and no material found that the P.W.2 sustained injuries in the said accident. It is not believable that the P.W.2 not get any injuries even he fell down from the two wheeler. Further observed that P.W.2 stated before this court that he has seen the driver on the date of incident and the accused stopped the lorry at the scene offence. But he never stated to the P.W.8 that he can identify the accused.

Further observed that the P.W.8 served notice under section 41-A Cr.P.C to the accused on 22-11-2017 whereas the accident taken place on 21-11-2017.

Admittedly the P.W.8 did not bring the accused to the police station on the date of incident. If really the accused stopped his vehicle at the scene offence and the

P.W.2 got chance to seen the accused on the date of the incident, he should have stated to the P.W.8 that he can identify the accused and the P.W.8 would have served the notice to the accused on the date of incident itself or accompany the accused to the police station. But the P.W.2 did not state to the P.W.8 about the identification of the accused and P.W.8 did not arrest the accused or served notice to the accused on the date of incident. It shows that the P.W.2 evidence is not supportable to the prosecution case to establish that the accused drove the vehicle in rash and negligent manner and caused death to P.W.1’s husband.

26.Further observed that the P.W.4 who is head constable and worked as mobile incharge in Get away by the time of incident, state that after he received information he came to the scene of offence and noticed the dead body and 10

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driver of the lorry and P.W.2 who received injuries. But the P.W.8 denied the injuries of the P.W.2. The P.W.4 also admitted that he did not state about the physical features of the accused to the P.W.8. Admittedly the P.W.8 did conduct any test identification parade. The evidence of P.W.8 is also silent about the presence of the accused at the scene of offence. The investigation of the P.W.8 not reveals the reasons if the accused available at the scene of offence on the date of incident, why the P.W.8 served notice under section 41-A Cr.P.C., to the accused. Since the evidence of P.W.2, P.W.4 and P.W.8 not corroborated and the prosecution failed to prove that the accused drove the vehicle in rash and negligent manner, this court opined that accused found not guilty.

As per the principle laid down in the Ankush Shivaji Gaikwad Vs State of Maharashtra in S.L.P.(Crl) No.6287 of 2011, it has been held that -While the award or refusal of compensation in a particular case may be within the

Court's discretion, there exists a mandatory duty on the Court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation. It is axiomatic that for any exercise involving application of mind, the Court ought to have the necessary material which it would evaluate to arrive at a fair and reasonable conclusion. It is also beyond dispute that the occasion to consider the question of award of compensation would logically arise only after the court records a conviction of the accused. Capacity of the accused to pay which constitutes an important aspect of any order under Section 357 Cr.P.C. would involve a certain enquiry albeit summary unless of course the facts as emerging in the course of the trial are so clear that the court considers it unnecessary to do so. Such an enquiry can precede an order on sentence to enable the court to take a view, both on the question of sentence and compensation that it may in its wisdom decide to award to the victim or his/her family. But in the present case, the prosecution failed to prove the case against the accused beyond all reasonable doubt that the accused drove the vehicle in rash and negligent 11

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manner,this court opined that it is not the fit case to award compensation.

Accordingly the point is answered

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

Under Section 304 -A of Indian Penal Code, and he is acquitted under section 255 (1) Cr.P.C. The bail bonds of the accused if any shall stands cancelled after expiry of appeal time.

Typed to my dictation by the Stenographer, Gr.III, corrected and pronounced by me in open court on this, the 03rd day of November, 2023.

Sd/-E.Rajendra Babu

III Addl.Chief Metropolitan Magistrate, Gajuwaka

Appendix of Evidence:

Witnesses examined:

For prosecution: For defence:

P.W.1: J. Swarna Kumari -None: P.W.2: S. Gnanesh P.W.3: G. Venkata Ramana Rao P.W.4: S. Santha Rao P.W.5 : G. Ranga Nayakulu P.W.6: S. V. R. Murthy P.W.7: P. Srinivasa Rao P.W.8 : A. Manmadha Rao

Exhibits marked for Prosecution:

Ex.P.1 : Report of P.W.1 Ex.P.2 :Inquest Report Ex.P.3 : Motor Vehicle Inspector Report Ex.P.4 : Scene observation Report Ex.P.5: First Information Report Ex.P.6: Rough Sketch Ex.P.7: Postmortem Report

Exhibits marked for defence: Nil.

M.Os marked:

Nil

Sd/-E.Rajendra Babu

12

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III ACMM/GWK 13

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CALENDAR AND JUDGMENT

IN THE COURT OF III ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,

VISAKHAPATNAM AT GAJUWAKA

C.C.NO.3/2018

Date of offence: 20.11.2017

Date of report/complaint: 21.11.2017

Release on bail: On bail

Date of commencement of trial: 12.07.2023

Date of Close of trial: 31.10.2023

Date of Sentence or judgment: 03.11.2023

Explanation for delay: The delay is due to non production of witnesses by the prosecution.

C.C.No.03/2018 on the file of III Additional Chief Metropolitan Magistrate, Gajuwaka against accused in Cr.No.738/2017 under Section 304-A of Indian Penal Code.

The name of the complainant : The State represented by Sub Inspector of Police,GajuwakaPoliceStation, Visakhapatnam City. The Name of the accused : Lenka Satyanarayana, S/o I. Simhachalam, aged about 52 years, caste by BC-B, Datti Parentage & Residence Village, Balighattam Post, Kothavalasa Mandal, Viziangaram Dist. Driver of Lorry AP 37W1012, Cell NO.7666981757. Offence: Under Sections 304-A of Indian Penal Code.

Finding: Accused is found not guilty.

Sentence: In the result, Accused is found not guilty for the offence punishable Under Section 304 -A of Indian Penal Code, and he is acquitted under section 255 (1) Cr.P.C. The bail bonds of the accused if any shall stands cancelled after expiry of appeal time.

Sd/-E.Rajendra Babu

III ADDL.CHIEF METROPOLITAN MAGISTRATE,

GAJUWAKA.

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O.S.No.28/2021

PCJC (SD)/GWK 1

IN THE COURT OF THE PRINCIPAL CIVIL JUDGE

(SENIOR DIVISION) AT GAJUWAKA

Present: SRI E. RAJENDRA BABU,

PRINCIPAL CIVIL JUDGE,

(SENIOR DIVISION),

GAJUWAKA.

THURSDAY, THE 26 th DAY OF DECEMBER, 2024

ORIGINAL SUIT No.28/2021

Between:

Behara Padmaja, W/o Behara Srinivas, aged 36 years, residing at Door No.30-30-1/3, Lakshmipuram Colony, Rajulupalem, Kurmannapalem, Gajuwaka, Visakhapatnam. Aadhar No.2437 1892 0541, Cell No.9985292517.

… Plaintiff

And :

Chowdary Rojarani, W/o Chowdary Ramakrishna, aged 41 years, residing at Door No.30-31-144, R.H. Colony, Vadlapudi, Visakhapatnam. Aadhar number and cell number are not known to the plaintiff

... Defendant

This suit came before me for hearing on 09.12.2024 in the presence of Smt. A. Seetha Mahalakshmi, learned advocate for the plaintiff and Smt. S. B. Ch. Lakshmi, learned advocate for the defendant and upon hearing and the matter having stood over for consideration till this day, this Court delivers the following:

J U D G M E N T

1.This is a suit filed for recovery of an amount of

Rs.24,80,000/- (Rupees Twenty Four Lakhs and Eighty Thousand only) basing on a promissory note dated 21.10.2018 said to have been executed by the defendant for Rs.15,00,000/- (Rupees Fifteen Lakhs only).

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PCJC (SD)/GWK 2

2.Brief case of the plaintiff is that the defendant is her own sister who borrowed an amount of Rs.15,00,000/- (Rupees Fifteen Lakhs only) on 21.10.2018 from the plaintiff for the purpose of discharging her bank debts and sundry debts and executed a promissory note in favour of plaintiff agreeing to repay the said amount with interest at the rate of

Rs.2/- per month per hundred either to the plaintiff or her order on demand. It is further contended that thereafter, the defendant did not pay any amount either principal or interest inspite of repeated demands by the plaintiff and as such the plaintiff got issued a reply notice cum legal notice dated 10.04.2021 demanding the defendant to repay the demand promissory note amount of Rs.15,00,000/-. It is further contended that the defendant received the notice, but did not choose either to repay the said demand promissory note debt or give a reply to the plaintiff due to which the plaintiff understood that the defendant has no intention to repay the same. It is further contended that the defendant is neither agriculturist nor small farmer, hence she is not entitled to the benefits applicable under the Debt Relief Act or any other legislation. Hence, the suit.

3.The defendant filed her written statement denying the averments in the plaint and further contended that the the plaintiff is her own sister and that plaintiff’s family is facing severe financial crisis at that time the defendant let her ground floor of the building for low rental purpose to the plaintiff, but from the starting of the entering into the premises, the plaintiff paid rent irregularly. It is further contended that the plaintiff and her husband B. Srinivas approached the defendant and requested to arrange Rs.1,20,000/- for clearing the debts, and accordingly the defendant on 01.09.2018 lent the said amount to the plaintiff through online transfer to the account of plaintiff’s husband B.

Srinivas. It is further contended that thereafter the plaintiff or her husband did not pay any interest on repeated requests made by the defendant

O.S.No.28/2021

PCJC (SD)/GWK 3 including the rents also for the ground floor, due to which some family disputes arose between the plaintiff and defendant, then the plaintiff and her husband hatched a plan to grab the property of the defendant and trying to mutate her name and consulted some officials, the said fact was known to the defendant, then she understood that the plaintiff’s tenancy is not safe and demanded the plaintiff to vacate the schedule property, but shockingly the plaintiff demanded an amount of Rs.3,80,000/- including the above said debt of Rs.1,20,000/- totaling Rs.5,00,000/-, on that the defendant questioned the plaintiff for which the plaintiff answered that if the defendant did not pay the above mentioned amount, she will not vacate the ground floor. It is further contended that the defendant issued a legal notice to the plaintiff on 11.02.2021 demanding her to vacate the schedule property of the defendant and the said notice was received and after two months, the defendant got issued a reply notice to the plaintiff with all false and frivolous allegations by demanding the amount of

Rs.15,00,000/- due under the alleged promissory note, immediately the defendant questioned the plaintiff about her illegal demand, but she gave evasive and adamant replies and filed the present suit. It is further contended that the defendant never borrowed any amount from the plaintiff and never executed any promissory note and that the defendant has no necessity to borrow the amount from the plaintiff who has no capacity to lend such huge amount and that the entire theory of plaint is unbelievable. It is further contended that no consideration was passed on the alleged suit promissory note to the defendant and that the promissory note is a rank forged and fabricated one brought into existence for the purpose of filing the suit only with a view to make wrongful gain and thereby causes wrongful loss to the defendant. It is further contended that the defendant does not know the scribe and attestors of the alleged suit promissory note on the date of alleged execution and they are strangers to the defendant and that they all colluded and invented the

O.S.No.28/2021

PCJC (SD)/GWK 4 promissory note. It is further contended that due to demonetization of all the currency of Rs.500/- and Rs.1,000/-, it is not possible to lend such huge amount by the plaintiff at the time of promissory note date and that as per rules and regulations of the RBI, if the transaction above

Rs.50,000/-, it should be made either cheque or online transfer only, so it is crystal clear that the allegations levelled against defendant are created hence the suit is not maintainable under law and liable to be dismissed.

Hence, prayed this Court to dismiss the suit.

4.From the above pleadings, the following issues are settled for trial:

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

2. Whether plaintiff is entitled for suit amount as prayed for?

3. To what relief?

5.On behalf of the plaintiff, she got herself examined as P.W.1, the 1st attestor of the suit promissory note, P. Sattibabu was examined as

P.W.2 and 2nd attestor of the suit promissory note R. Bhanu Murthy was examined as P.W.3. Exs.A.1 to A.5 were marked on behalf of plaintiff and Ex.B1 was marked in the cross-examination of P.W.1.

6.On behalf of the defendant, the defendant got herself examined as D.W.1 and and no exhibits were marked.

7.Heard both sides. Written arguments filed by the defendant and perused the same.

I S S U E No.1 :

Whether suit promissory note is true, valid and binding on the

defendant?

O.S.No.28/2021

PCJC (SD)/GWK 5

8.The learned counsel for the plaintiff contended that the defendant borrowed an amount of Rs.15,00,000/- on 21.10.2018 under

Ex.A1 from the plaintiff for the purpose of discharging her bank debts and sundry debts and executed Ex.A1 promissory note in favour of plaintiff agreeing to repay the said amount with interest at the rate of Rs.2/- per month per hundred either to the plaintiff or her order on demand. It is further contended that thereafter, the defendant did not pay any amount either principal or interest inspite of repeated demands by the plaintiff and committed default.

9.Learned counsel for plaintiff further contended that the plaintiff got examined herself as P.W.1 and got marked Exs.A1 to A5. In corroboration of plaintiff’s evidence, P.Ws.2 & 3 were also examined.

Hence, P.W.1 proved that the defendant executed Ex.A1 pronote and failed to pay the amount, requesting the Court to decree the suit in her favour as prayed.

10.On the other hand, the learned counsel for the defendant contended through her written arguments that defendant never received consideration of Rs.15,00,000/- under Ex.A1 as alleged by the plaintiff and that infact the defendant lent her ground floor portion to the plaintiff at lower rent as the plaintiff is suffering from financial crisis and that too she lent an amount of Rs.1,20,000/- to the plaintiff to clear her debts, but the plaintiff to grab the property of defendant got filed the suit. Further the plaintiff is not having sufficient income to lend such huge amount. As the plaintiff and his men forged and created the promissory note, requesting the Court to dismiss the suit.

11. As per record, defendant denied the execution of Ex.A1 transaction. Hence plaintiff is not having benefit of presumption under

Section 118 of N.I.Act. The burden lies on the plaintiff to prove the

O.S.No.28/2021

PCJC (SD)/GWK 6 execution of Ex.A1 and its consideration. In support of the plaintiff’s case, plaintiff got examined herself as P.W.1 and reiterated same facts as mentioned in the plaint. However, got marked Exs.A1 to A5, out of which,

Ex.A1 which is original pronote dated 21.10.2018, Ex.A2 is office copy of reply notice cum legal notice issued by the plaintiff dated 10.04.2021,

Ex.A3 is original registered postal slip dated 12-04-2021, Ex.A4 is original acknowledgment and Ex.A5 is original legal notice issued by the defendant dated 11.02.2021. The Ex.A1 shows that the defendant received consideration of Rs.15,00,000/- on 21.10.2018 in the presence of P. Sattibabu, R. Bhanu Murthy who are attestors and N. Lakshmi

Narayana Rao who is the scribe. P.W.1 got marked Ex.B1 in her cross- examination which is nothing but reply notice dated 15.03.2022 issued by the plaintiff to the defendant’s counsel.

12.When the defendant questioned the P.W.1 during her cross- examination about her capacity to lent amount, P.W.1 deposed that she is working in a private school and that her husband is working in South India

Shopping Mall. But the defendant never denied her capacity as Teacher.

Since the P.W.1 deposed that she is working as a Teacher and having earning capacity and also the defendant did not deny the same, this Court opined that P.W.1 is having earning capacity and so that she can lent amount to the defendant. This Court further observed that P.W.1 deposed that she pooled up suit pronote amount from the retirement benefits of her father-in-law and also other amounts. She further deposed that her father-in-law retired in the year 2010 and gave Rs.9,00,000/- to her and she lent the amount on interest basis to others and they repaid the same.

She further deposed that in the year 2014 they purchased a house at

Sundarayya Colony, Gajuwaka for Rs.12,00,000/- with the sale proceeds of a site at Narasannapeta which was sold away by them. She denied the suggestion that they purchased the property at Sundarayya Colony

O.S.No.28/2021

PCJC (SD)/GWK 7 with the retirement benefits of her father-in-law and as such she did not file any document to prove the said transaction. The said suggestion reveals that defendant also admitted as she is having knowledge that

P.W.1’s father in law gave some amount from his retirement benefits to the plaintiff.

13.P.W.1 further deposed that on 21.10.2018 the defendant came to her house in the morning hours at Sundarayya Colony and borrowed the amount in the presence of herself, her husband along with her uncle Sattibabu, the defendant and her brother and the document writer who was brought by her were present and the denomination is

Rs.500/- and Rs.2,000/- notes. She denied the suggestion that to grab the property of defendant she is deposing false.

14.To support the said consideration and execution of Ex.A1 transaction, got examined 1st attestor as P.W.2. He deposed in his chief examination that he knows the plaintiff and defendant and that the entire transaction of the said promissory note dated 21.10.2018 took place in his presence and that the 2nd attestor was also present at the time of transaction of promissory note dated 21.10.2018.

15.In his cross-examination, P.W.2 deposed that he came to the

Court at the request of plaintiff’s husband Srinivasa Rao and that he does not remember the exact date and day of promissory note transaction but it was in the month of October, 2018. He further deposed that he was present at the place of transaction between 11.00 A.M. and 12.00 noon and the transaction took place between that time only. He further deposed that by the time he reached the place of transaction, plaintiff’s husband Srinivasa Rao, plaintiff, plaintiff’s sister, plaintiff’s younger brother, document writer were present. He further deposed that plaintiff’s sister, himself, plaintiff’s brother only put their signatures on suit

O.S.No.28/2021

PCJC (SD)/GWK 8 promissory note. He denied the suggestion that he is giving false evidence as P.W.1 is known to him.

16.P.W.3 who is 2nd attestor of suit promissory note deposed in his chief examination that he know the plaintiff and defendant and that the entire transaction of the said promissory note dated 21.10.2018 took place in his presence and that the 1st attestor was also present at the time of transaction of promissory note dated 21.10.2018. In his cross- examination deposed that he is younger brother of defendant and that the suit promissory note transaction taken place on 21.10.2018 i.e., on

Sunday in between 11.00 A.M to 12 noon and it takes 40 minutes to complete the transaction. He further deposed that the promissory note denomination is Rs.500/- and Rs.2,000/- notes. He denied the suggestion that the defendant never executed any promissory note and never borrowed amounts but to grab the property of defendant, the plaintiff filed the false suit.

17.Though the defendant got cross examined P.Ws.2 and 3 as required, she did not elicit anything to disbelieve their testimonies with regard to the execution of the Ex.A1, time of execution of Ex.A1 and denomination of the Ex.A1. Hence this Court opined that the plaintiff proved the execution of Ex.A1 and passing of consideration.

18.Further this Court observed that though the defendant denied the execution of Ex.A1 and taken plea that it was forged document, she did not take any steps to prove the same. As per record, defendant filed

I.A.No.88/2023 under section 45 of Indian Evidence Act, to send for suit promissory note dated 21-10-2018 to Government hand writing expert for comparison with her admitted signatures and this Court allowed the said petition. Further defendant again filed I.A.No.280/2023 under Section 151

CPC, to call for account opening form vide account number 6714404422

O.S.No.28/2021

PCJC (SD)/GWK 9 of Indian Bank, Vadlapudi branch, and account number 33057859892 in

SBI, NAD branch for comparing signatures with Ex.A1. On enquiry this

Court allowed the said petition also and issued summons to the Bank

Managers. Accordingly Bank Manager of Indian Bank, Vadlapudi branch appeared before this Court and submitted original account opening form vide account number 6714404422 of the defendant. Further observed that Bank Manager SBI, NAD Branch appeared before this Court and submitted a letter by stating that the original account opening form of defendant is not available in their branch as original document held with their liability certificate processing center at Vijayawada. On that matter posted for hearing of the defendant to take necessary steps to cause production of account opening form of SBI, NAD Branch from liability certificate processing center at Vijayawada. But the defendant did not turn up to take steps and so that this Court posted for defendant’s evidence as the purpose of I.A.No.88/2023 and 280/2023 was vitiated. But surprisingly the defendant who was examined as D.W.1 deposed before this Court while her cross examination that she is not ready to send the promissory note to FSL for comparison. She further deposed that she never directed her previous advocate to file petitions to compare pronote signatures with her admitted signatures. She further deposed that since she informed to her advocate that she cannot pay fee to send signatures to expert opinion, her advocate filed the said petition. She does not know whether

Bank Manager came to Court to submit her bank account opening form to compare with the suit promissory note signatures. It shows that defendant has no interest to take steps to seek expert opinion to compare her admitted signatures with Ex.A1. But her previous counsel filed the said petitions. Hence this Court opined that defendant failed to prove her plea which is forgery of Ex.A1. Accordingly the evidence of P.Ws.1 to 3 reveals that defendant executed Ex.A1 by receiving consideration. Hence the burden shifts to the defendant to disprove the case of the plaintiff.

O.S.No.28/2021

PCJC (SD)/GWK 10

19.In support of her case, defendant got examined herself as

D.W.1 and filed her chief affidavit and reiterated same facts as mentioned in the written statement. In cross-examination, D.W.1 deposed that she issued legal notice to the plaintiff dated 11.02.2021 under Ex.A5 i.e., prior to filing of the suit for which the plaintiff also got issued reply notice. She further deposed that she does not know whether she got mentioned in

Ex.A5 that she borrowed Rs.2,00,000/- @ 18% per annum interest from the plaintiff. She admitted her signature on written statement and denied her signature on promissory note. She further deposed that she got received the reply notice issued by plaintiff in which the plaintiff got mentioned that she lent Rs.15,00,000/- to D.W.1, but she did not issue rejoinder. She further deposed that she is not ready to send the promissory note to FSL for comparison. She further deposed that her

Advocate filed a petition, but she does not know whether Bank Manager came to Court to submit her bank account opening form to compare with the suit promissory note signatures. She denied the suggestions that she intentionally did not take steps to send her signatures along with suit promissory note for comparison to the expert because if she send the documents, the execution of pronote will be proved. She further deposed that she did not brought the scribe of the promissory note and she denied the suggestion that she is giving false evidence to avoid the liability of the promissory note.Except oral testimony, defendant did not adduce any supportable evidence to disprove the case of the plaintiff. Hence this

Court opined that defendant failed to discharge her burden.

20. Hence on the above reasons and in absence of supporting evidence of defendant, this Court opined that plaintiff proved the execution of Ex.A1 suit promissory note which is true, valid and supported by consideration. Accordingly, issue No.1 is answered in favour of the plaintiff and against the defendant.

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PCJC (SD)/GWK 11

I S S U E No.2 :-

Whether plaintiff is entitled for suit amount as prayed for?

21.In view of the findings in Issue No.1, it is needless to say that the plaintiff is entitled to recover the suit amount with subsequent interest and costs from the defendant. Hence, issue No.2 is answered in favour of the plaintiff and against the defendant.

I S S U E No. 3 :

To what relief?

22.As the plaintiff proved execution of Ex.A1 and its consideration, the suit is decreed in favour of the plaintiff with costs.

23.In the result,the suit is decreed with costs in favour of the plaintiff and against the defendant for a sum of Rs. 24,80,000/- (Rupees

Twenty Four Lakhs and Eighty Thousand only) with subsequent interest at the rate of 12% per annum from the date of filing of the suit till the date of decree and thereafter at the rate of 6% per annum from the date of decree till realization on the principal amount of Rs.15,00,000/- (Rupees Fifteen Lakhs only).

Typed to my dictation by Stenographer Gr.II, corrected and pronounced by me in open Court, this the 26 th day of December, 2024.

Sd/- E. Rajendra Babu,

PRINCIPAL CIVIL JUDGE,

(SENIOR DIVISION),

GAJUWAKA.

APPENDIX OF EVIDENCE

Witnesses examined for

Plaintiff :- Defendant :-

P.W.1 : Behara PadmajaD.W.1 : Chowdari Roja Rani P.W.2 : P. Sattibabu P.W.3 : R. Bhanu Murthy

O.S.No.28/2021

PCJC (SD)/GWK 12

Exhibits marked for :-

Plaintiff :-

Ex.A.1: Original promissory note dated 21.10.2018

Ex.A.2 : Office copy of reply notice cum legal notice issued by the plaintiff dated 10.04.2021

Ex.A.3: Original registered postal receipt dated 12.04.2021

Ex.A.4: Original acknowledgment

Ex.A.5:Original legal notice issued by the defendant dated 11.02.2021

Ex.B1:Reply notice dated 15.03.2022 issued by the plaintiff to the defendant’s counsel (marked in the cross-examination of P.W.1)

Defendant :-

NIL

Sd/- E. Rajendra Babu,

PCJ (SD)/GWK.

O.S.No.04/2023

PCJC (SD)/GWK 1

IN THE COURT OF THE PRINCIPAL CIVIL JUDGE

(SENIOR DIVISION) AT GAJUWAKA

Present: SRI E. RAJENDRA BABU,

PRINCIPAL CIVIL JUDGE,

(SENIOR DIVISION),

GAJUWAKA.

MONDAY, THE 6 th DAY OF JANUARY, 2025

ORIGINAL SUIT No.04/2023

Between:

Baggam Prasad Rao, S/o late Sri Ram Murthy, aged about 63 years, Occupation : retired Police, residing at D.No.27-3-221/2, Employees Colony, Srinagar, Visakhapatnam-26. Aadhar No.7540 2015 3688, Phone No.9603029422.

… Plaintiff

And :

Chappa Narayanappadu, S/o late Satyam, aged 63 years, Occupation : retired Teacher, Residing at Penta Sriramapuram Village and Post, Gantyada Mandal, Vizianagaram, Aadhar number and mobile number are not known to the plaintiff.

... Defendant

This suit came before me for hearing on 26.12.2024 in the presence of Sri. V. Eswara Rao, learned advocate for the plaintiff and Sri. A. Tulasi Ramesh, learned advocate for the defendant and upon hearing and the matter having stood over for consideration till this day, this Court delivers the following:

J U D G M E N T

1.This is a suit filed for recovery of an amount of

Rs.20,56,800/- (Rupees Twenty Lakhs Fifty Six Thousand and Eight

Hundred only) basing on a promissory note dated 29.12.2019 said to have been executed by the defendant for Rs.12,00,000/- (Rupees Twelve

Lakhs only).

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PCJC (SD)/GWK 2

2.Brief case of the plaintiff is that the defendant borrowed an amount of Rs.12,00,000/- (Rupees Twelve Lakhs only) on 29.12.2019 from the plaintiff for the purpose of family expenses and clearance of sundry debts and executed a promissory note in favour of plaintiff agreeing to repay the said amount with interest @ 24% per annum either to the plaintiff or his order on demand. It is further contended that thereafter, the defendant did not pay any amount either principal or interest inspite of repeated demands by the plaintiff. It is further contended that after several requests, finally the defendant has issued a cheque bearing No.583187 dated 16.07.2022 drawn on State Bank of

India, Vizianagaram Cantonment Branch, Vizianagaram in favour of plaintiff for an amount of Rs.10,00,000/- towards part payment of the said pronote debt and when the same was presented by the plaintiff on 19.07.2022 at his Bank i.e., Union Bank of India, Gajuwaka Branch,

Visakhapatnam for collection, it was returned with an endorsement “exceeds arrangement” in defendant’s account, due to which, the plaintiff issued a legal notice through his counsel dated 17.08.2022 to the defendant to pay the cheque amount and even on receipt of notice, the defendant did not acknowledge the same and did not come forward to pay the cheque amount, hence the plaintiff filed a criminal case against the defendant under Section 138 of N.I. Act on the file of III Additional

Chief Metropolitan Magistrate’s Court, Gajuwaka which is pending. It is further contended that the defendant is neither agriculturist nor small farmer, hence he is not entitled to the benefits applicable under the Debt

Relief Act or any other legislation. Hence, the suit.

3.The defendant filed his written statement denying the averments in the plaint and further contended that the defendant did not borrow the said amount from the plaintiff on said even date or any other date at any point of time and no transaction took place, and no

O.S.No.04/2023

PCJC (SD)/GWK 3 consideration was passed by the plaintiff to the defendant. It is further contended that the plaintiff has no financial capacity to lend such a huge amount and that the plaintiff filed this suit by fabricating the suit document with the help of scribe and attestors and the signature of the defendant is also rank forgery. It is further contended that the defendant is an agriculturist and he is entitled to get every benefit under the appropriate laws. It is further contended that the plaintiff filed this suit with an ulterior motive to gain unlawfully from the defendant and there is no cause of action to this suit. Hence, prayed this Court to dismiss the suit.

4.From the above pleadings, the following issues are settled for trial:

1. Whether the suit promissory note dated 29.12.2019 is true, valid and binding on the defendant?

2. Whether the plaintiff is entitled for suit amount as prayed for?

3. To what relief?

5.On behalf of the plaintiff, he got himself examined as P.W.1, and examined 1st attestor of the suit promissory note, S. Satya Surya

Prakasa Rao as P.W.2. However plaintiff got marked Exs.A.1 to A6.

6.On behalf of the defendant, the defendant got himself examined as D.W.1 and and no exhibits were marked.

7.Heard both sides.

I S S U E No.1 :

Whether the suit promissory note dated 29.12.2019 is true,

valid and binding on the defendant?

8.The learned counsel for the plaintiff contended that the defendant borrowed an amount of Rs.12,00,000/- on 29.12.2019 under

Ex.A1 from the plaintiff and executed a promissory note in favour of plaintiff agreeing to repay the said amount with interest @ 24% per

O.S.No.04/2023

PCJC (SD)/GWK 4 annum either to the plaintiff or his order on demand. But defendant did not pay any amount inspite of repeated demands by the plaintiff and committed default. As plaintiff demanded the defendant for many times, defendant has issued a cheque bearing No.583187 dated 16.07.2022 under Ex.A3 drawn on State Bank of India, Vizianagaram Cantonment

Branch, Vizianagaram in favour of plaintiff for an amount of

Rs.10,00,000/- towards part payment of the said pronote. When plaintiff presented on 19.07.2022 at his Bank i.e., Union Bank of India, Gajuwaka

Branch, Visakhapatnam for collection, it was returned with an endorsement under Ex.A4 as “exceeds arrangement” in defendant’s account. On that plaintiff got issued a legal notice through his counsel

dated 17.08.2022 under Ex.A2 to the defendant to pay the cheque

amount and even on receipt of notice, the defendant did not acknowledge the same and did not come forward to pay the cheque amount, hence the plaintiff filed suit.

9.Learned counsel for plaintiff further contended that to prove the execution of Ex.A1 pronote, got examined himself as P.W.1 and got marked Exs.A1 to A6. In corroboration of plaintiff’s evidence, P.W.2 was also examined. Hence, P.W.1 proved that the defendant executed Ex.A1 pronote and failed to pay the amount, requesting the Court to decree the suit in his favour as prayed.

10.On the other hand, the learned counsel for the defendant contended that defendant never received consideration of Rs.12,00,000/- under Ex.A1 as alleged by the plaintiff and that infact the plaintiff is not having capacity to lend such a huge amount. Further contended that no prudent man can come to Visakhapatnam from Vizianagaram alone to carry alleged suit pronote amount to Vizianagaram. As the plaintiff and his men forged and created the promissory note, requesting the Court to dismiss the suit.

O.S.No.04/2023

PCJC (SD)/GWK 5

11. As per record, the plaintiff claimed that defendant executed

Ex.A1 pronote in the presence of attestors and scribe and received consideration whereas defendant denied the execution of Ex.A1 transaction. Hence plaintiff is not having benefit of presumption under

Section 118 of N.I.Act. So that burden lies on the plaintiff to prove the execution of Ex.A1 and its consideration. In support of the plaintiff’s case, plaintiff got examined himself as P.W.1 and reiterated same facts as mentioned in the plaint. However, got marked Exs.A1 to A6, out of which,

Ex.A1 which is original pronote dated 29.12.2019, Ex.A2 is office copy of legal notice issued by the plaintiff dated 17.08.2022, Ex.A3 is copy of cheque bearing No.583187, Ex.A4 is copy of cheque return memo dated 20.07.2022 issued by Union Bank of India, Ex.A5 is copy of postal receipt and Ex.A6 is copy of track consignment letter issued by Sub Post Master.

The Ex.A1 shows that the defendant received consideration of

Rs.12,00,000/- on 29.12.2019 in the presence of S.S.S. Prakasa Rao,

M. Raja Sekhar who are attestors and G. Ramesh Babu who is the scribe.

12. During cross-examination of P.W.1, defendant questioned about his capacity to lent the amount, P.W.1 deposed that he retired as

A.S.I at Kancharapalem Police Station on 31.07.2019 and that he received retirement benefits of Rs.45,00,000/- from which he used some amounts to lent to the defendant and that the amounts were withdrawn on different dates for which he can file his account statement. Admittedly plaintiff did not file account statement. Since the defendant also not specifically asked to produce the account statement of plaintiff, non production of account statement is not fatal to the plaintiff’s case. Further observed that in cross examination of D.W.1, he admitted that plaintiff is his classmate at Intermediate. He further admitted that he knows that plaintiff worked as Assistant Sub-Inspector of Police. Since the defendant

O.S.No.04/2023

PCJC (SD)/GWK 6 admitted that plaintiff worked as a Government employee, this Court opined that defendant has knowledge that plaintiff is having capacity to lend amount to the defendant, but for this case purpose, taken such defence. Hence, this Court opined that plaintiff proved his capacity.

13.P.W.1 further deposed that the denomination of amount of

Ex.A1 is Rs.500/- notes total 24 bundles. To support the said consideration and execution of Ex.A1 transaction, got examined 1st attestor of suit promissory note as P.W.2. He deposed in his chief examination that the defendant borrowed an amount of Rs.12,00,000/- from the plaintiff on 29.12.2019 for the purpose of family expenses and clearance of sundry debts and executed a promissory note in favour of plaintiff on the very same day on receipt of consideration and also agreeing to repay the same on demand of plaintiff or his order together with interest @ 24% per annum in his presence and in the presence of

M. Raja Sekhar and the scribe G. Ramesh Babu.

14.In his cross-examination, P.W.2 deposed that he is working at Visakhapatnam Port Authority and residing at Gurudwar and on the request of plaintiff, he went to the house of plaintiff on the date of promissory note transaction. He further deposed that the denomination of the promissory note amount is Rs.500/-. Hence this Court opined that evidence of P.W.2 corroborated with the evidence of P.W.1 with regard to the execution of Ex.A1, consideration and also denomination of suit pronote. Though the defendant got cross examined P.Ws.1 and 2 as required, he did not elicit anything to disbelieve their testimonies with regard to the execution of the Ex.A1 and denomination of the Ex.A1.

Hence this Court opined that the plaintiff proved the execution of Ex.A1 and passing of consideration. Accordingly, the burden shifts to the defendant to disprove the case of the plaintiff.

O.S.No.04/2023

PCJC (SD)/GWK 7

15.In support of his case, defendant got examined himself as

D.W.1 and filed his chief affidavit and reiterated same facts as mentioned in the written statement. In cross-examination, D.W.1 deposed that he retired from services as a Teacher four years prior to giving his evidence and that the plaintiff is his classmate at Intermediate. He further deposed that he received a legal notice issued by plaintiff, but he did not give any reply. He further deposed that Ex.A3 cheque belongs to him on seeing it, but denied his signature on vakalat on seeing it. He denied the suggestions that he executed Ex.A1 by receiving consideration of Rs.12 lakhs by putting his signatures and thumb impressions. He further deposed that he cannot send the original promissory note to FSL to compare his admitted signature. He admitted that a cheque bounce case is running against him on the file of III ACMM Court, Gajuwaka in connection with the suit promissory note debt. He further deposed that he borrowed an amount of Rs.4,00,000/-, Rs.2,00,000/- and again

Rs.2,00,000/- from three unknown persons for plaintiff by giving his blank cheques and promissory notes and that the plaintiff filed the present suit basing on the above blank pronotes and cheques. He further deposed that he did not borrow any amount from plaintiff and he did not issue any reply notice to the plaintiff. He denied the suggestion that to avoid the liability of the suit pronote and cheque bounce case, he has brought new defence in his evidence.

16.As per the case of the defendant, the Ex.A1 suit pronote is forged and fabricated by the plaintiff. But to prove the same, the defendant has to take steps to compare disputed signature on Ex.A1 with his admitted signature. Admittedly, defendant did not take such steps to prove forgery. Further during his cross examination, deposed that he cannot send the original promissory note to FSL to compare his admitted signature. Hence, this Court opined that defendant did not establish the

O.S.No.04/2023

PCJC (SD)/GWK 8 forgery. This Court further observed that D.W.1 deposed that Ex.A3 cheque belongs to him, but denied his signature on his own vakalat. It shows that without having any specific stand, he came to Court to deny each and everything includes his signature on his own vakalat in the presence of his advocate.

17.He further denied that issuance of cheque under Ex.A3 and pleaded that cheque return memo under Ex.A4 are not related to the present suit and issued towards collateral purpose so that they are not valid in the present case. But the defendant did not disclose on what circumstances, he issued Ex.A3 cheque. He did not admit in his written statement that the Ex.A3 cheque leaf belongs to him and it was issued towards collateral purpose. The said fact brought by him at the stage of his cross examination. Though it was brought by him in his cross examination, he did not adduce sufficient evidence to prove the same.

Hence, this Court opined that defendant failed to prove his defence with regard to the forgery and issuance of cheque under Ex.A3.

18.On the above reasons and in absence of supporting evidence of defendant, this Court opined that plaintiff proved the execution of Ex.A1 suit promissory note which is true, valid and supported by consideration.

Accordingly, issue No.1 is answered in favour of the plaintiff and against the defendant.

I S S U E No.2 :-

Whether the plaintiff is entitled for suit amount as prayed for?

19.In view of the findings in Issue No.1, it is needless to say that the plaintiff is entitled to recover the suit amount with subsequent interest and costs from the defendant. Hence, issue No.2 is answered in favour of the plaintiff and against the defendant.

O.S.No.04/2023

PCJC (SD)/GWK 9

I S S U E No. 3 :

To what relief?

20.As the plaintiff proved execution of Ex.A1 and its consideration, the suit is decreed in favour of the plaintiff with costs.

21.In the result,the suit is decreed with costs in favour of the plaintiff and against the defendant for a sum of Rs. 20,56,800/- (Rupees

Twenty Lakhs Fifty Six Thousand and Eight Hundred only) with subsequent interest at the rate of 12% per annum from the date of filing of the suit till the date of decree and thereafter at the rate of 6% per annum from the date of decree till realization on the principal amount of

Rs.12,00,000/- (Rupees Twelve Lakhs only).

Typed to my dictation by Stenographer Gr.II, corrected and pronounced by me in open Court, this the 6 th day of January, 2025.

Sd/- E. Rajendra Babu,

PRINCIPAL CIVIL JUDGE,

(SENIOR DIVISION),

GAJUWAKA.

APPENDIX OF EVIDENCE

Witnesses examined for

Plaintiff :- Defendant :-

P.W.1 : B. Prasad RaoD.W.1 : Ch. Narayanappadu P.W.2 : S.S.S. Prakasa Rao

Exhibits marked for :-

Plaintiff :-

Ex.A.1: Original promissory note dated 29.12.2019

Ex.A.2: Office copy of legal notice dated 17.08.2022

Ex.A.3: Copy of cheque bearing No.583187

Ex.A.4: Copy of cheque return memo dated 20.07.2022 issued by Union Bank of India

Ex.A.5: Copy of postal receipt

O.S.No.04/2023

PCJC (SD)/GWK 10

Ex.A.6: Copy of track consignment letter issued by the Sub Post Master

Defendant :-

NIL

Sd/- E. Rajendra Babu,

PCJ (SD)/GWK.