Sri G.Dharma Rao

1

CC No.38 of 2014

Date: 16/12/2020

IN THE COURT OF THE JUNIOR CIVIL JUDGE CUM JUDICIAL

MAGISTRATE OF FIRST CLASS::CHINTALAPUDI

Present:- Sri G.Dharma Rao,

Junior Civil Judge cum

Judicial Magistrate of I class,

Chintalapudi.

Wednesday, this the 16th day of December, 2020

C.C.No.38 of 2014

Between:

Kambhampati Padmavathi, W/o Late Srirama Sridhara Rao, Hindu, Caste Vysya, aged 50 yrs, R/o Tuvvachelakarayudupalem village, Lingapalem mandal.

... Complainant

Vs.

Takkellapati Pulla Rao, S/o Venkata Rao, Male, Hindu, aged 40 yrs, R/o Tuvvachelakarayudupalem village, Lingapalem mandal.

... Accused

This case coming on 11/12/2020, for final hearing before me, in the presence of Sri N.Y.V.Prasad, learned counsel for complainant and of Sri N.Satyanarayana, learned counsel for accused and the matter having stood over till this day, for consideration, this court delivered the following:-

J U D G M E N T

1. The complaint was filed by the complainant under Section 200 of

Cr.P.C for the offence punishable under section 138 of Negotiable

Instruments Act, 1881, against the accused.

2. The brief facts of the complainants case are as follows:-

The accused borrowed an amount of Rs.9,00,000/- from the complainant on 02.01.2013 towards his business expenses and that the accused agreed to repay the same with interest @24% per annum and on the same day the accused executed a demand promissory note in favor of the complainant. The accused agreed to repay the above said amount to the complainant or on her demand to anyone.

Thereafter, the complainant demanded the accused about the repayment of the amount. On that, on 30.03.2013 accused issued cheque bearing No.001102 of State Bank of India, Lingapalem branch for Rs.9,26,116/- in favor of the complainant towards part satisfaction 2

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of the debt. Subsequently, the complainant presented the said cheque for encashment on 30.03.2013 in State Bank of India, Chintalapudi branch. The bank sent the cheque for collection to the State Bank of

India, Lingapalem. The said cheque was dishonoured and drawee bank issued a memo on 05.04.2013 stating that the funds insufficient in the account No.11499581697. Therefore, the complainant got issued a legal notice on 22.04.2013 demanded the accused to repay the cheque amount of Rs.9,26,116/- within the 15 days after receipt of the notice.

On 13.05.2013 advocate for the accused gave a reply notice to the complainant with false allegations. Since the cheque issued by the accused in favor of the complainant is legally enforceable debt, the accused is liable for punishment under Section 138 of N.I Act. Hence, the complaint.

3.This court took cognizance of the offence under section 138 of

Negotiable Instruments Act against the accused.

4. On appearance, copies of documents had supplied to the accused as required under Sec.207 Cr.P.C.

5. Accused was examined U/Sec.251 Cr.P.C., explaining the substance of accusation leveled against him for the offence under section 138 of

Negotiable Instruments Act for which the accused denied the allegations and claimed to be tried.

6.During the course of trial, the complainant was examined as

P.W.1 and Ex.P1 to Ex.P11 were marked. No oral evidence is lead by accused.

7.Upon closure of complainants side evidence, the accused was examined under section 313 of Cr.P.C, for which he denied the 3

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incriminating material that appeared against him in the evidence of complainant. The accused filed 1) original receipt bearing No.33 issued by SHO, dt.02.02.2013 along with the copy of report about loss of cheque book etc. 2) white ration card in the name of Kambampati

Ramasridhara Rao and his family members bearing F.P shop No.7

WAP0510070015 3) adangal copy for the faslie year 1424 showing the complainant in possession of Ac.0.77 cents in Sy.No.38/5 at

Tch.Rayudupalem Dharmajgigudem. On enquiry, he reported no defence evidence.

8.It is necessary to refer the past events in order to clear understand of this case. This court after conducting entire trial and

pronounced Judgment on 31.08.2015 by my Predecessor and dismissed

the complaint and consequently, acquitted the accused.

9.Aggrieved by the said Judgment, the complainant preferred an appeal before the Hon’ble District Court, Eluru. The Hon’ble Appellate

Court after conducting trial, pronounced Judgment by setting aside the

Judgment of this court and remitted the matter to this court. The

Hon’ble Appellate Court in its Judgment dated 26.04.2017, raised

following points for determination.

10.1)Whether the complainant has proved the existence of any legally enforceable debt towards her, if so, the respondent has succeeded in proving that the disputed cheque was not issued to the complainant and thereby rebutted the presumption drawn under section 139 of Negotiable Instruments Act?

2)Whether there are any grounds to interfere in the impugned Judgment of the trial court?

3)Whether the documents filed by both parties can be received?

4) To what relief?

11.After conducting entire trial by the Appellate Court, the 1st and 2nd points had been decided in favor of the complainant. In the 3rd point 4

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the Appellate Court observed that the accused did not take any plea of limitation. Therefore, it is a crucial point for deciding the complainant and technicalities place more important role in case under Section 138 of Negotiable Instruments Act and also observed that in view of non taking plea of limitation which is mixed in question of law and fact which goes to the root of the case. Further, it is observed that, the documents filed by the both parties to be received and opportunity must be given to both parties to prove their contentions basing on the documents. By observing the above aspects and remitted the case to this court by the Appellate Court.

12.In view of the 1st and 2nd points decided by the Appellate court in favor of complainant in its Judgment, this court is not going into discuss with regard to those aspects. Now the question before the court is that, whether the complaint is barred by limitation or premature. Therefore, following points are raised for determination.

13. 1)Whether the complaint filed by the complainant was barred by the limitation or premature?

2) To what relief?

14.The learned counsel for the complainant argued that the accused issued cheque in favor of the complainant for discharge of legally enforceable debt. Thereafter, the complainant presented the said cheque in her bank and the same was dishonoured with in sufficient funds. Thereafter, the complainant issued legal notice to the accused on 22.04.2013 and the same was received by the accused and the accused gave reply notice with false allegations. Thereafter, on 14.06.2013 the complainant filed the complaint before this court. Since the cheque issued by the accused in favor of the complainant for legally enforceable debt and the same was dishonoured with 5

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insufficient funds, the accused is liable for conviction under section 138 of Negotiable Instruments Act.

15.Whereas, the learned counsel for the accused argued that, the

Hon’ble Appellate court limited the matter to decide the point as to

whether the complaint is bared limitation or premature. He further submitted that, the complainant issued legal notice on 22.04.2013 and the same was received by the accused, for which the acknowledgement shows that the accused received the acknowledgement on 02.06.2013. Since the accused received acknowledgement on 02.06.2013 the complainant had to wait for 15 days as contemplated under section 138 (c) of Negotiable Instruments

Act and the cause of action would arise after 15 days and the complaint should file within one month as per Section 142 (b) of

Negotiable Instruments Act, but the complainant was filed by the complaint on 14.06.2013 I.e prior to 15 days contrary to Section 138

(c) of Negotiable Instruments Act. Therefore, the complaint is prematured and it is not complaint in the eye of law. He further argued that, the complainant stated in her chief examination affidavit that, the accused received notice on 25.04.2013, however, the complaint was filed on 14.06.2013 it shows that the complaint is barred by limitation.

The complainant ought to have filed the complaint after receipt of notice by the accused on 25.04.2013, the complainant should wait for 15 days and then the complainant should file complaint within one month. If that was done, the complaint should be filed on 10.06.2013 but it was filed on 14.06.2013. Hence, the complaint is barred by limitation and it is not a complaint in the eye of law.

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16.As per the case of the complainant, the accused borrowed an amount of Rs.9,00,000/- from the complainant on 02.01.2013 for his business expenses. Thereafter, on demand made by the complainant, the accused on 30.03.2013 issued cheque bearing No.001102 for

Rs.9,26,116/- of State Bank of India, Lingapalem branch in favor of the complainant. Thereafter, the complainant presented the said cheque in her bank and the cheque was dishonoured and the bank issued memo on 15.04.2013 I.e Ex.P2 stating that funds insufficient. Thereafter, the complainant issued legal notice on 22.04.2013 to the accused demanding to repay the cheque amount within 15 days and the noticed was received by the accused. Thereafter, on 13.05.2013 the accused gave a reply notice to the complainant.

17.As contended by the learned counsel for the accused, the two aspects has to be decided that whether the complaint is barred by limitation or prematured one. In order to decide these points it is necessary to refer Section 138 and Sec.142 of Negotiable Instruments

Act.

“Section 138 of Negotiable Instruments Act;- Dishonour of cheque for insufficient etc., of funds in the account, where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cehque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice 7

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to any other provision of this Act, be punished with imprisonment (for a term which may extend to two years), or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless:-

a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, (within thirty days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid;c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice”.Section

142 of Negotiable Instruments Act: cognizance of offence:-

notwithstanding anything contained in the Code of Criminal Procedure, 1973;-a) no court shall take cognizance of any offence punishable under section 138 of Negotiable Instruments Act except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;

b)such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138; 8

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Provided that the cognizance of a complaint may be taken by the court after the prescribed period, if the complainant satisfies the court that he had sufficient cause for not making a complaint within such period.

c)no court inferior to that of a Metropolitan magistrate of a

Judicial Magistrate of the first class shall try any offence punishable

under section 138.

2) the offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction;

a)if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated, or

b)if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account is situated.

18.The above sections clearly shows that a)cheque has to be presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. (Sec.138 provision (a)). The Reserve Bank of Inida vid enotification No.DBOD.AML BC.No.47/14.01.001/2011-12 has made the period of validity of a cheque to be three month now. Hence, as of now, the cheque has to be presented within three months from the date on which it was drawn.

b) The payee or holder in due course of the cheque has to make a demand for payment of the amount due by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of 9

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information by him from the bank regarding dishonour of the cheque.

(Sec.138 of proviso (b)).

c) The drawer of the cheque has to fail to make the payment of the amount to the payee or holder in due course within 15 days of the receipt of the said notice (Sec.138 of proviso (c)).

d) The complaint has to be filed within one month of the date on which the cause of action arises under clause (c) of the proviso to

Sec.138 of N.I.Act. (Sec.142).

19.A perusal of acknowledgement/Ex.P4 shows that under the signature of the accused the date was mentioned as 02.06.2013.

Therefore, as per the acknowledgement/Ex.P4 the notice dated 22.04.2013 was served on accused on 02.06.2013. The legal notice dt.22.04.2013 Ex.P3 was issued to the accused calling upon to repay the cheque amount within 15 days. The acknowledgement Ex.P4 shows that the accused received the said notice on 02.06.2013. Therefore, the complainant had to wait for a period of 15 days I.e upto 16.06.2013 as per Section 138 (c) of Negotiable Instruments Act and the cause of action would arise on 17.06.2013 and the complaint should be filed within one month as per section 142 (b) of Negotiable Instruments Act.

However, the complaint was filed on 14.06.2013.

20.Having perused the reply notice given by the accused and the acknowledgment/Ex.P4 received by accused would reveals that the

Ex.P4/acknowledgment shows that the accused put a date 02.06.2013 under his signature having received notice dt.22.04.2013. The reply notice issued by the accused to the complainant shows that it was issued on 13.05.2013. If really the notice dated 22.04.2013 issued by the complainant was received by the accused on 02.06.2013 as per 10

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Ex.P4, the reply notice dated 13.05.2013 would not have been issued by the accused prior to receipt of Ex.P3 notice dated 22.04.2013.

Therefore, it is clear that without knowing the contents of notice dated 22.04.2013 Ex.P3, the question of issuance of reply notice Ex.P5 prior to Ex.P3 would not arise. Neither party adduced any evidence as to how the date 02.06.2013 appeared in Ex.P4/acknowledgment.

21.The learned counsel for the accused relied on the Judgment of

Hon’ble Apex Court in Yogendra Pratap Singh Vs Savitri and

another AIR 2015 SC 157. Held in para No.37; “A complaint filed before expiry of 15 days from the date on which notice has been served on drawer/accused cannot be said to disclose the cause of action in terms of clause (c) of the proviso to

Section 138 of Negotiable Instruments Act and upon such complaint which does not disclose the cause of action the court is not competent to take cognizance. A conjoint reading of Section 138, which defines as to when and under what circumstances an offence can be said to have been committed, with Section 142(b) of the N.I Act, that reiterates the position of the point of time when the cause of action has arisen leaves no manner of doubt that no offence can be said to have been committed unless and until the period of 15 days, as prescribed under clause (c) of the proviso to Section 138, has, infact, elapsed. Therefore, a court is barred in law from taking cognizance of such complaint. It is not open to the court to take cognizance of such a complaint merely because on the date of consideration or taking cognizance thereof a period of 15 days from the date on which the notice has been served on the drawer/accused has elapsed. We have no doubt that all the five essential features of Section 138 of N.I Act, as noted in the Judgment of 11

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this court in Kusum Ingots & Alloys Ltd. (AIR 2000 SC 954) and which we have approved, must be satisfied for a complaint to be filed under section 138. if the period prescribed in clause (c) of the proviso to section 138 has not expired, there is no commission of an offence nor accrual of cause of action for filing of complaint under section 138 of

Negotiable Instruments Act.

22.The Judgment of the Apex Court would certainly apply to the case on hand when it considered the date mentioned in Ex.P4. However, the ambiguity arises that how the reply notice dated 13.05.2013 Ex.P5 was issued prior to receipt of Ex.P3 notice dated 22.04.2013, as appeared in Ex.P4/acknowledgement. Therefore, it cannot be said that the complainant is prematured.

23.The another aspect is that whether the complaint is barred by limitation or not.

24.The Ex.P3 notice was issued by the complainant on 22.04.2013 to the accused demanded to repay the cheque amount, after receipt of the same the accused gave a reply notice dt.13.05.2013. In view of the

date 13.05.2013 have appeared in reply notice issued by the accused,

the accused might be received notice dated 22.04.2013, Ex.P3 on 25.04.2013. If the date 25.04.2013 is taken into consideration as to date of receipt of the notice by the accused, the complaint ought to have filed within one month after elapse of period of 15 days for cause of action the complainant presented the complaint before this court on 14.06.2013. The complainant stated in her chief examination affidavit and also mentioned in complaint that the date of acknowledgement is on 25.04.2013. As per the chief examination affidavit of the complainant the date of receipt of the notice by the accused is on 12

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25.04.2013. Since the date of receipt of notice by the accused on 25.04.2013, the complainant has to wait for 15 days as per section 138

(c) of Negotiable Instruments Act i.e upto 09.05.2013 and the complaint should be filed within one month. Therefore, the complainant ought to have filed the complaint within one month after arising cause of action. As per the chief examination affidavit of the complainant, the legal notice dt.22.04.2013 Ex.P4 was served on 25.04.2013. So that the complainant should wait for a period of 15 days from the date of receipt of notice dated 25.04.2013 and then the complaint should be filed within one month ie. prior to 10.06.2013.

However, the complainant was filed on 14.06.2013. Therefore, it clearly shows that the complaint was filed after expiry of one month period which is in contravention of Sec.142(1)(b) of Negotiable

Instruments Act. Therefore, the complaint is barred by limitation.

Since the complaint was not filed within one month as per Section 142(1)(b) of Negotiable instruments Act, after arising cause of action, the complaint is barred by limitation. Hence, the accused is entitled for acquittal.

25.In the result, accused is found not guilty for the offence punishable under Sections 138 of Negotiable Instruments Act.

Accordingly, he is acquitted under Section 255 (1) of Cr.P.C. The bail bonds of the accused if any, shall remain in force for a period of six months as per sec. 437-A of Cr.P.C.

Dictated to Stenographer, correction and pronounced by me through

Video Conference in Blue Jeans on this the 16th day of December, 2020.

Junior Civil Judge cum

Judicial Magistrate of I Class,

Chintalapudi.

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APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION : FOR DEFENCE:

PW1: Khambampati Padmavathi, Complainant None

EXHIBITS MARKED

FOR PROSECUTION:

Ex.P.1: Cheque bearing No.534002782, dt.30.03.2013 of State Bank of India, Lingapalem Ex.P.2: cheque return memo issued by State Bank of India, Lingapalem

Ex.P3: office copy of legal notice, dt.22.04.2013.

Ex.P4: postal acknowledgement, dt.02.06.2013.

Ex.P5: accused through his counsel issued the reply notice

Ex.P6: original pattadar pass book on the name of complainant under patta No.935. Ex.P7: original pattadar pass book on the name of complainant under patta No.1343. Ex.P8: certified copy of promissory note dt.02.01.2013 for

Rs.9,00,000/-

Ex.P9: Certified copy of letter given by Dharmajigudem SHO, dt.21.07.2015.

Ex.P10: Certified copy of FIR in Cr.No.68/2016.

Ex.P11: Certified copy of O.S.No.208/2015 regarding to orders in I.A.No.5/2016 regarding to attachment before Judgment on the file of PDJ Court, Eluru.

FOR DEFENCE :

Nil

J.C.J.cum J.F.C.M C.T.P.

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CALENDAR & JUDGMENT

WEST GODAVARI DISTRICT

CALENDAR AND JUDGMENT IN C.C.NO:38 of 2014 ON THE FILE OF

JUDICIAL MAGISTRATE OF I CLASS :: CHINTALAPURDI

Date of

OffenceComplaintApprehensionRelease onCommence-Close ofSentence or reportof accusedbailment of trialtrialof Order 05.04.2013 14.06.2013––17.12.201401.10.2019 16.12.2020

Explanation for delay: --NIL--

Cr.No.:: Nil

Complainant :

Kambhampati Padmavathi,

W/o Late Srirama Sridhara Rao, Hindu, Caste Vysya, aged 50 yrs, R/o Tuvvachelakarayudupalem village, Lingapalem mandal.

Offence : Under section 138 of Negotiable Instruments Act.

Name of the accused: Takkellapati Pulla Rao, S/o Venkata Rao, Male, Hindu, aged 40 yrs, R/o Tuvvachelakarayudupalem village, Lingapalem mandal.

Finding: Accused is found not guilty.

Sentence or Order of the Court:-

In the result, accused is found not guilty for the offence punishable under Sections 138 of Negotiable Instruments Act.

Accordingly, he is acquitted under Section 255 (1) of Cr.P.C. The bail bonds of the accused if any, shall remain in force for a period of six months as per sec. 437-A of Cr.P.C.

Junior Civil Judge cum

Judicial Magistrate of I Class,

Chintalapudi.

Copy submitted to:

The Hon’ble I Addl. District & Sessions Judge, West Godavari, Eluru

C.C.No.212 of 2024, dt.19.04.2024.

CALENDAR AND JUDGMENT

Calendar cases tried by the Principal Civil Judge (Junior Division) – cum – Judicial

Magistrate of I Class, Kovvur.

Date of Offense : 01.05.2022.

Date of report or Complaint : 01.05.2022.

Date of apprehension of accused : 02.05.2022.

Date release on bail, if any: 06.05.2022.

Date of commencement of trail: 04.04.2024.

Close of trial : 15.04.2024.

Date of sentence or other order : 19.04.2024.

Explanation of delay and remarks : No delay.

Calendar and Judgment in C.C.No.212/2024 on the file of Principal Civil Judge (Junior Division) – cum - Judicial Magistrate of I Class, Kovvur.

Complainant : State represented by the Station House officer, S.E.B., Station, Kovvur in Crime No.176/2022, U/s.7B r/w 8B of A.P. Prohibition Act.

Name of the accused, Husband’s name, Age, calling, Religion, Village and Mandal. Patchipala Posi Yedurlamma, W/o.Prasad Kumar, Aged 29 years, R/o.Kovvuru town and mandal. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Offence : U/s.7B r/w 8B of A.P. Prohibition Act.

Finding : Not guilty.

Sentence: In the result, the accused is found not guilty for the offence under section 7B R/w 8B of A.P. Prohibition (Amd) Act 2020 and acquitted her under section 248 (1) of Cr.P.C., the bail bonds of the accused shall remain in force for a period of 6 months from the date of Judgment as per section 437 A of Cr.P.C., the

M.O.1 shall be destroyed after expiry of appeal time. Digitally signed by GORLE

GORLE DHARMARAO

DHARMARAODate: 2024.04.19 17:33:02 +0530

Principal Civil Judge (Junior Division)

– cum – Judl. I Class Magistrate,

Kovvur.

Copy submitted to The Hon'ble I Addl. District & Sessions Judge, W.G., Eluru.

C.C.No.212 of 2024, dt.19.04.2024.

IN THE COURT OF THE PRINCIPAL CIVIL JUDGE (JUNIOR DIVISION)

– CUM - JUDICIAL MAGISTRATE OF FIRST CLASS : : KOVVUR.

Present : Sri G.Dharma Rao

Principal Civil Judge (Junior Division) – cum -

Judl. Magistrate of I Class, Kovvur

Friday, this the 19th day of April, 2024

C.C.No. 212 /2024

Between:

State represented by Station House Officer, S.E.B Station, Kovvur. …Complainant.

And

Patchipala Posi Yedurlamma, W/o.Prasad Kumar, Aged 29 years,

R/o.Kovvuru town and mandal. ...Accused.

This case coming on 15.04.2024 for final hearing before me in the presence of learned Assistant Public Prosecutor for the State and of Sri. M.Parameswara

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

J U D G M E N T

1. The Sub Inspector, S.E.B. Kovvur filed charge sheet against the accused for the offence punishable under section 7B R/w 8B of A.P. Prohibition (Amd) Act 2020 in Crime No.176/2022 alleging that on 01.05.2022 at 11:50 a.m., the Lw1 along with staff went to Kovvuru village and reached house of accused.

They found the accused and on seeing the police the accused escaped from the spot and found 05 liters of ID arrack. On enquiry the details of the accused accused noted. Thereafter, lifted the samples from contraband and drafted special report,

C.C.No.212 of 2024, dt.19.04.2024.

2 basing on the special report the Lw1 registered as a case in Crime No.176/2022 under section 7B R/w 8B of A.P.P. (Amd) Act, 2020 and he arrested the accused on 02.05.2022. The Lw1 send samples to the chemical examiner and received report vide C.E.No.1875/2022 and the chemical examiner opined that the ID liquor is unfit for human consumption and injurious to health. The remaining property was confiscated to the state and was destroyed on 15.10.2022 as per proceedings of

Deputy Commissioner of Special Enforcement Bureau, Vijayawada.

2. This case was taken on file Under Section 7B R/w 8B of A.P. Prohibition (Amd) Act, 2020.

3. On appearance of accused copies of documents were furnished to her as contemplated under section 207 of Cr.P.C.

4. The Accused was examined Under Section 239 Cr.P.C, the charge Under

Section 7B R/w 8B A.P.Prohibition (Amd) Act 2020 was framed, read over and explained to her in Telugu and the same was denied by accused and claimed to be tried.

5. To prove the case of the prosecution, the prosecution examined Pw.1 and

Exhibits P1 to P4 and MO1 was marked. The evidence of the Lws.2 and 3 was given up by the prosecution.

6. After closure of prosecution evidence, accused was examined under section 313 Cr.P.C., and she denied the incriminating material in prosecution evidence. The accused reported no defence evidence on her behalf.

7. Heard both sides.

8. The learned Assistant Public Prosecution argued that the testimony of

C.C.No.212 of 2024, dt.19.04.2024.

3

Pw.1 and Ex.P1 to Ex.P4 is clearly established and proved guilt of accused hence, the accused is liable for conviction.

9. The learned counsel for the accused argued that the accused never involved in the alleged offence, she was falsely implicated in this case. Except the evidence of Pw1, who is Excise official and his evidence is not sufficient to support the case of the prosecution. The police did not secure the mediators to prove version of the prosecution. Hence, the prosecution has failed to establish the guilt of the accused. Hence, the accused is entitled for acquittal.

10. Point for determination is: Whether the prosecution has proved the

guilt of the accused for the offence punishable under section 7B R/w 8B of

A.P. Prohibition (Amd) Act 2020 beyond all reasonable doubts?

Point: The Pw1 is the Inspector of S.E.B Eluru, deposed that on 01.05.2022 at about 11:50 a.m., he along with his staff went to Kovvuru village and reached house of accused. They found accused and on seeing the police the accused escaped from spot and found 05 liters of ID arrack. The neighbouring people informed the details of the accused. Thereafter, collected samples from the contraband and then prepared special report. Based on the Special report he registered FIR in Crime No.176/2022, U/s.7B R/w 8B of A.P.P Act (Amd), 2020 and send the samples to chemical analysis and subsequently, received analysis report.

He arrested the accused on 02.05.2022. After completion of investigation the Lw3 filed charge sheet. In his cross examination stated that the scene of offence is situated in residential area. They did not record the statements of the persons, who informed the details of the accused. They did not secure mediators. No independent witness is examined.

C.C.No.212 of 2024, dt.19.04.2024.

4

11. As seen from the evidence, except the oral testimony of Pw1 there is no other independent witness is available on record. The evidence of the Pw1 shows that the accused escaped from the spot on the date of alleged incident and the details of the accused came to know through neighbours of the place of offence.

But their statements are no recorded. Based on information given by some persons the case was registered against the accused. But no reasons are assigned by the prosecution why the Investigating officer did not record statements, who informed the details of the accused. The evidence of Pw1 is not believable and can not be taken into consideration. Therefore, in the said circumstance the very identity of the accused became question hence, it creates doubt whether the accused was the person escaped from the spot on the date of the alleged incident. The Ex.P3 is the analysis report, by marking this document and MO1, the prosecution at best established that the ID arrack, unfit for human consumption and injurious to health.

It is the case of the prosecution is that the accused confessed at the time of her arrest. The confession before the police is hit by Sec.25 and 26 of Indian Evidence

Act, as such the confession is not valid under law.

12. Hon’ble High Court in Mudavath Mothia Vs. State of A.P. reported in 2002 1 ALT(Cri) 437-2002 0 Supreme (AP) 232 at para No.5, it was held as follows:- “Once the excise officials are entrusted with the investigation of cognizable offence, they become police officials and the excise officials can never say that they are not the police officials. When once they become police officials, the confession recorded by them in the proceedings is inadmissible.”

C.C.No.212 of 2024, dt.19.04.2024.

5

It is further held that:

“When the independent witnesses are not examined by the prosecution, the prosecution theory of seizing the contraband from the custody of the accused has to be looked with suspicion. The non-examination of independent mediators is fatal to the prosecution version. The seizure proceedings drafted also cannot be considered in view of the bar under Secs.25 and 27 of the Indian EVIDENCE Act, 1872 and Sec.161 of Cr.P.C.”

13. Further our Hon’ble High Court S. BABU SAHEB ALIAS BABU Vs.STATE

OF A.P. reported in 2010 (1) ALT(Cri) 32 at para No.16, it was held as follows:- “When the police conducting the search in a colony or at a place wherein there is possibility of securing the presence of independent mediators, the excise officials or prohibition officers are bound to take the local respectable independent inhabitants. They must make sincere efforts to secure local respectable mediators.

That is the mandate of Section 100 Cr.P.C. The object of Section 100 Cr.P.C., is to ensure confidence in the neighbours and in the public in general that a genuine search has been made and incriminating material has been really found and not planted. The presence of independent respectable mediators at a search is always desirable and the presence of mediators of any other locality would not only weaken, but sometimes destroy the prosecution case.”

As per Section 25 Indian Evidence Act:- No confession made to a police officer, shall be proved as against a person accused of any offence. As per Section 26 Indian Evidence Act:- No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a

Magistrate, shall be proved as against such person.

C.C.No.212 of 2024, dt.19.04.2024.

6

As per Section 25 of Indian Evidence Act the confession made to the Police is inadmissible. As Per Section 26 of Indian evidence Act the confession made by the accused in Police custody is also inadmissible. As per the case of the prosecution and the evidence of the prosecution witnesses would clearly shows that on confession made by the accused the Police came to conclusion that the accused was the person escaped on date of raid. But, confession before Police is not valid and it cannot be taken into consideration.

14. In view of the above said reasons the prosecution failed to adduce sufficient evidence to prove the guilt of the accused. Therefore, the accused is entitled for the acquittal as the prosecution failed to establish guilt of the accused beyond all reasonable doubts.

15. In the result, the accused is found not guilty for the offence under section 7B R/w 8B of A.P. Prohibition (Amd) Act 2020 and acquitted her under section 248 (1) of Cr.P.C.,. The bail bonds of the accused shall remain in force for a period of 6 months from the date of Judgment as per section 437 A of Cr.P.C.,. The

M.O.1 shall be destroyed after expiry of appeal time.

Typed to my dictation to Stenographer, corrected, signed on draft Judgment and pronounced by me in the open Court, this the 19 th day of April, 2024 and digitally signed. Digitally signed by GORLE

GORLE DHARMARAO

DHARMARAODate: 2024.04.19 17:33:24 +0530

Principal Civil Judge (Junior Division)

– cum – Judl. I Class Magistrate,

Kovvur.

C.C.No.212 of 2024, dt.19.04.2024.

7

APPENDIX OF EVIDENCE

WITNESSES EXAMINED.

FOR PROSECUTION:

Pw1: Sri V.T.V.V.Satyanarayana, C.I of S.E.B. Kovvur.

FOR DEFENCE: -None-

DOCUMENTS MARKED

FOR PROSECUTION:-

Ex.P1 Special Report. Ex.P2 F.I.R. Ex.P3 Analysis Report. Ex.P4 Special Report on 02.05.2022.

FOR DEFENCE: Nil.

MATERIAL OBJECTS MARKED

M.O.1 is the Sample bottle.

Digitally signed by GORLE

GORLE DHARMARAO

DHARMARAODate: 2024.04.19 17:33:11 +0530

Principal Civil Judge (Junior Division)

– cum – Judl. I Class Magistrate, Kovvur.

1 O.S.No.214 of 2023, dt.23.04.2024.

IN THE COURT OF THE PRINCIPAL CIVIL JUDGE

(JUNIOR DIVISION) :: W.G. KOVVUR

Present:- Sri G.Dharma Rao

Principal Civil Judge (Junior Division), Kovvur

Tuesday, the 23rd day of April, 2024

O.S.No. 214 /2023

Between:

State Bank of India, Chityala Branch, Represented by it’s Branch Manager, Chityala.

….. Plaintiff.

And

1.Jyesta Sri Latha, W/o.Jyesta Sridhar, Aged 37 years, Cultivation, R/o.D.No.1- 209, near Petrol bunk, Gopalapuram, Gopalapuram mandal.

2.Jyesta Sridhar, S/o.Ramulu, Aged 42 years, Cultivation, R/o.D.No.1-209, Near Petrol Bunk, Gopalapuram, Gopalapuram mandal.

3.Palempati Srinivasa Rao, S/o.Ramachandra Rao, Aged 46 years, Cultivation, R/o.D.No.2-108, Vijaya Bank street, Gopalapuram, Gopalapuram mandal.

….. Defendants.

This suit is coming before me on 22.04.2024 for final hearing in the presence of Sri.P.Udaya Bhanuji, Advocate for plaintiff and Smt.P.Tara Kumari, Advocate forDefendants 1 to 3 and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1)This suit is filed by the Plaintiff bank for recovery of an amount of

Rs.11,85,067/- due by Defendants to the plaintiff’s Bank.

2) The State Bank of India is a statutory corporation incorporated under the State Bank of India Act of 1955 having its branches among other places at 2 O.S.No.214 of 2023, dt.23.04.2024.

Chityala. The Branch Manager is empowered to institute the suit and sign the pleadings.

3 a) The brief facts of the case of the plaintiff bank is that the 1st defendant requested the plaintiff bank to sanction Rs.5,00,000/- as Crop loan under cash credit loan facility agreeing to repay the same with interest at 7.00% per annum with half yearly rests within one year and in default to pay the interest subject to variation of rate from time to time as per RBI guidelines. The defendants 2 and 3 stood as guarantors. The 1st defendant gave loan application on 14.11.2018 and he executed hypothecation agreement and defendants 2 and 3 executed deed of guarantee. The 1st defendant withdrawn the loan amount through account No.38068547136.

b) The 1st defendant requested the plaintiff to sanction Rs.2,00,000/- as

Agricultural Term loan to raise Tobacco agreeing to repay the same with interest at 12.1% per annum with half yearly rests within one year in default to pay the interest subject to variation of rate from time to time as per RBI guidelines. The defendants 2 and 3 stood as guarantors. The 1st defendant gave loan application on 19.11.2018 and he executed hypothecation agreement and defendants 2 and 3 executed deed of guarantee. The 1st defendant withdrawn the loan amount through account No.38078561045.

c)Inspite of repeated demands made by the officials of the plaintiff bank. The 1st defendant did not repay the debt. The 1st defendant executed revival letter on 23.08.2021 acknowledging the debt. The same is binding on the defendants 2 and 3. As per cash credit loan Account No.38068547136 the 1st 3 O.S.No.214 of 2023, dt.23.04.2024.

defendant due an amount of Rs.7,20,033/- including interest upto the 31.11.2021.

The subsequent interest upto 15.04.2023 Rs.1,16,875/- and other expenses are

Rs.500/- in total Rs.8,37,408/-. As per the term loan account No.38078561045 the 1st defendant is due an amount of Rs.2,91,031/- including interest upto 30.11.2021. The subsequent interest upto 15.04.2023 is Rs.56,628/-, total

Rs.3,47,659/-. The total suit amount is Rs.11,85,067/-.

d) The rate of interest claimed by the plaintiff is only as per the directions of RBI. The usurious loans Act has no application. As per Section 21-A of the Bank and Companies Regulations Act 1/84 there is no jurisdiction to civil court to decide the rate of interest whether it is excessive of penal. The rate of interest charged by the bank is fair and reasonable having regard to the prevailing rate of interest in the private lending market is 36% compounded. The 1st defendant availed other loans for which separate suits are being filed. Hence, this suit.

4) The 1st defendant filed written statement and the same is adopted by defendants 2 and 3. The defendants denied the averments in the plaint and further stated that the 1st defendant approached the plaintiff to avail loan under agricultural crop loan but not term loan. The agricultural loan was sanctioned and he made all payments to the plaintiff bank but the plaintiff suppressed the same in the account copy. At the time of availing loan the bank people obtained signatures of the defendants on empty printed forms. Having need of money the defendants singed on the documents. The plaintiff bank people filled the empty papers as per their convenience and got filed the suit for wrongful gain. The 1st defendant never 4 O.S.No.214 of 2023, dt.23.04.2024.

executed acknowledgment on 23.08.2021 as such the suit is bared by limitation.

The plaintiff bank filed suit fabricating the documents to harass the defendants.

The plaintiff bank did not issue any notice before filing the suit. The 1st defendant is housewife and her husband is agricultural coolie and they are getting meager amounts for their livelihood. The interest claimed by the plaintiff not as per contract. Hence, the suit may be dismissed.

5) The following issues are framed for trial.

i. Whether the plaintiff discharged the loan amount as pleaded by the defendant?

ii. Whether the defendant acknowledge the debt on 23.08.2021 and suit is within limitation?

iii. Whether the plaintiff is entitled for suit amount?

iv. To what relief?

6)The learned counsels for the plaintiff and defendants reported arguments may be treated to be heard.

Issue Nos.1 to 3:

a)The plaintiff bank examined its branch manager as Pw1. The Pw1 filed his chief examination affidavit reiterating the contents of the plaint and marked Exs.A1 to A10. The Pw1 was cross examined, he stated he was not the branch manager at the time of sanction of loan. He further stated he is giving evidence based on the record. He further stated plaintiff bank sanctioned crop loan Rs.5,00,000/- and term loan Rs.2,00,000/- to the 1st defendant. The Pw1 suggested the 1st defendant got only Agricultural loan and the plaintiff bank 5 O.S.No.214 of 2023, dt.23.04.2024.

people obtained signatures of the defendant on unfilled papers at the time of sanction of loan and that the 1st defendant never acknowledged the debt. The suggestion was denied by the Pw1.

b) As per the evidence of Pw1 and Ex.A2 would show that the 1st defendant obtained cash credit loan on 14.11.2018 for Rs.5,00,000/-. The Ex.A5 would show that the 1st defendant obtained term loan on 19.11.2018 for

Rs.2,00,000/-. The 1st defendant examined as Dw1, she admitted in her cross examination that she obtained crop loan and also term loan from the plaintiff bank. Therefore, it is clear that the 1st defendant obtained both the loans under

Ex.A2 and Ex.A5. The Ex.A3 would show that the defendants 2 and 3 stood as guarantors for the cash credit loan and they executed guarantee deed dated 14.11.2018 i.e., Ex.A3. The defendants 2 and 3 also executed Ex.A6 guarantee deed dated 19.11.2018 for the term loan. Therefore, the Ex.A3 and A6 would clearly shows that the defendants 2 and 3 stood as guarantors for the loans obtained by the 1st defendant. The defendants 2 and 3 have not placed any evidence and they are not examined as witnesses.

c)The 1st defendant took a defence that she never executed revival letter Ex.A7 and Ex.A8 and those are fabricated by the plaintiff bank as the plaintiff bank obtained signatures on the printed forms at the time of sanction of loan. The Ex.A7 and Ex.A8 clearly shows that those are executed by the 1st defendant on its respective dates by the 1st defendant. Nothing elicited in the cross examination of the Pw1 with regard to non execution of Ex.A7 and Ex.A8 on its respective dates. Therefore, there are no reasons to disbelieve the Ex.A7 and 6 O.S.No.214 of 2023, dt.23.04.2024.

Ex.A8. When the Ex.A7 and Ex.A8 were executed by the 1st defendant the limitation commences from date of Ex.A7 and Ex.A8 as such the suit is within the limitation. The defendant took a defence that she discharged the loan amount.

The 1st defendant has not placed any documentary proof to show that she discharged the loan amounts. As per Ex.A9 the outstanding amount is

Rs.8,37,408/- for Cash Credit loan. The Ex.A10 show that the outstanding amount is Rs.3,47,659/- for term loan. The Ex.A9 and Ex.A10 account copies clearly shows that the 1st defendant is due the respective amounts as mentioned in it.

d)In view of the above discussion the plaintiff established that the 1st defendant obtained loans from the plaintiff bank for which the defendants 2 and 3 stood as guarantors and 1st defendant failed to discharge the outstanding amount.

Accordingly the issues are answered in favour of the plaintiff.

Issue N o.4:

i) In the result, suit is decreed with costs in favour of the plaintiff, against the defendants, the defendants 1 to 3 jointly and severally liable to pay an amount of Rs.8,37,408/- which is the cash credit loan, with subsequent interest at 11.20% per annum on principle amount of Rs.5,00,000/- from the date of filing of suit till date of decree and thereafter, at 6% per annum from date of decree to till date of realization.

ii)The defendants 1 to 3 jointly and severally liable to pay an amount of

Rs.3,47,659/- which is the term loan, with subsequent interest at 11.20% per annum on principle amount of Rs.2,00,000/- from the date of filing of suit till date 7 O.S.No.214 of 2023, dt.23.04.2024.

of decree and thereafter, at 6% per annum from date of decree to till date of realization.

Typed to my dictation to Stenographer, corrected, signed on draft Judgment and pronounced by me in open court, on this the 23 rd day of April, 2024 and digitally signed.

Digitally signed by GORLE

GORLE DHARMARAO

DHARMARAODate: 2024.04.23 17:01:24 +0530

Principal Civil Judge (Jr.Division),

Kovvur.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: Pw.1: T.Vijaya Rama Rao.

FOR DEFENDANTS:

Dw.1: Jyesta Srilatha.

DOCUMENTS MARKED

FOR PLAINTIFF:

Ex.A1 is the Loan Application dated 14.11.2018 of the D1 for C.C. loan.

Ex.A2 is the hypothecation agreement executed by 1st defendant dated 14.11.2018.

Ex.A3 is the deed of guarantee executed by the 2nd and 3rd defendants dated 14.11.2018.

Ex.A4 is the Loan application of the 1st defendant for term loan dated 19.11.2018.

Ex.A5 is the hypothecation agreement executed by 1st defendant dated 19.11.2018.

Ex.A6 is the Deed of guarantee executed by 2nd and 3rd defendants dated 19.11.2018.

Ex.A7 is the revival letter executed by the defendants for C.C. loan dated 23.08.2021.

8 O.S.No.214 of 2023, dt.23.04.2024.

Ex.A8 is the revival letter executed by the defendants for term loan dated 23.08.2021.

Ex.A9 is the account copy bearing No.38068547136.

Ex.A10 is the account copy bearing No.38078561045.

FOR DEFENDANTS:

-Nil- Digitally signed by GORLE

GORLE DHARMARAO

DHARMARAODate: 2024.04.23 17:01:11 +0530

Principal Civil Judge (Jr.Division),

Kovvur.

C.C.No.211 of 2024, dt.19.04.2024.

CALENDAR AND JUDGMENT

Calendar cases tried by the Principal Civil Judge (Junior Division) – cum – Judicial

Magistrate of I Class, Kovvur.

Date of Offense : 09.02.2022.

Date of report or Complaint : 09.02.2022.

Date of apprehension of accused : 09.02.2022.

Date release on bail, if any: 14.02.2022.

Date of commencement of trail: 04.04.2024.

Close of trial : 15.04.2024.

Date of sentence or other order : 19.04.2024.

Explanation of delay and remarks : No delay.

Calendar and Judgment in C.C.No.211/2024 on the file of Principal Civil Judge (Junior Division) – cum - Judicial Magistrate of I Class, Kovvur.

Complainant : State represented by the Station House officer, S.E.B., Station, Kovvur in Crime No.66/2022, U/s.7B r/w 8B of A.P. Prohibition Act.

Name of the accused, Father’s name, Age, calling, Religion, Village and Mandal. Karinki Prasad, S/o.Venkata Rao, Aged 49 years, R/o.Vadapalli village, Kovvuru mandal. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Offence : U/s.7B r/w 8B of A.P. Prohibition Act.

Finding : Not guilty.

Sentence: In the result, the accused is found not guilty for the offence under section 7B R/w 8B of A.P. Prohibition (Amd) Act 2020 and acquitted him under section 248 (1) of Cr.P.C., the bail bonds of the accused shall remain in force for a period of 6 months from the date of Judgment as per section 437 A of Cr.P.C., the

M.O.1 shall be destroyed after expiry of appeal time.

Digitally signed by GORLE

GORLE DHARMARAO

DHARMARAODate: 2024.04.19 17:31:52 +0530

Principal Civil Judge (Junior Division)

– cum – Judl. I Class Magistrate,

Kovvur.

Copy submitted to The Hon'ble I Addl. District & Sessions Judge, W.G., Eluru.

C.C.No.211 of 2024, dt.19.04.2024.

IN THE COURT OF THE PRINCIPAL CIVIL JUDGE (JUNIOR DIVISION)

– CUM - JUDICIAL MAGISTRATE OF FIRST CLASS : : KOVVUR.

Present : Sri G.Dharma Rao

Principal Civil Judge (Junior Division) – cum -

Judl. Magistrate of I Class, Kovvur

Friday, this the 19th day of April, 2024

C.C.No. 211 /2024

Between:

State represented by Station House Officer, S.E.B Station, Kovvur. …Complainant.

And

Karinki Prasad, S/o.Venkata Rao, Aged 49 years, R/o.Vadapalli village,

Kovvuru mandal. ...Accused.

This case coming on 15.04.2024 for final hearing before me in the presence of learned Assistant Public Prosecutor for the State and of Sri. M.Parameswara

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

J U D G M E N T

1. The Sub Inspector, S.E.B. Kovvur filed charge sheet against the accused for the offence punishable under section 7B R/w 8B of A.P. Prohibition (Amd) Act 2020 in Crime No.66/2022 alleging that on 09.02.2022 at about 10:00 a.m., the Lw1 along with staff went to the Vadapalli village and reached house of accused. They found the accused and on seeing them the accused tried to escape from the spot and immediately the police caught him and detected 10 liters of ID arrack. On enquiry made by the Lw1 the accused furnished his details and address particulars and confessed that he purchased the ID arrack from unknown

C.C.No.211 of 2024, dt.19.04.2024.

2 person. The Lw1 arrested the accused and lifted the samples from ID arrack and drafted special report, basing on the special report the Lw1 registered as a case in

Crime No.66/2022 under section 7B R/w 8B of A.P.P. (Amd) Act 2020 and arrested the accused. The Lw1 send samples to the chemical examiner and received report vide C.E.No.634/2022 and the chemical examiner opined that the ID arrack unfit for human consumption and injurious to health. The remaining property was confiscated to the State and destroyed on 05.04.2022, as per orders of Deputy

Commissioner of Special Enforcement Bureau, Vijayawada.

2. This case was taken on file Under Section 7B R/w 8B of A.P. Prohibition (Amd) Act 2020.

3. On appearance of accused copies of documents were furnished to him as contemplated under section 207 of Cr.P.C.

4. The Accused was examined Under Section 239 Cr.P.C, the charge Under

Section 7B R/w 8B A.P. Prohibition (Amd) Act 2020 was framed, read over and explained to him in Telugu and the same was denied by the accused and claimed to be tried.

5. To prove the case the prosecution, the prosecution examined Pw.1 and

Exhibits P1 to P3 and MO.1 was marked. The evidence of the Lws 2 to 4 was given up by the prosecution.

6. After closure of prosecution evidence, accused was examined under section 313 Cr.P.C. and he denied the incriminating material in prosecution evidence. The accused reported no defence evidence on his behalf.

7. Heard both sides.

C.C.No.211 of 2024, dt.19.04.2024.

3

8. The learned Assistant Public Prosecution argued that the testimony of

Pw.1 and Ex.P1 to Ex.P3 and M.O.1 was clearly established and proved guilt of accused hence, the accused is liable for conviction.

9. The learned counsel for the accused argued that the accused never involved in the alleged offence, he was falsely implicated in this case. Except the evidence of Pw1, who is Excise official and his evidence is not sufficient to support the case of the prosecution. The police did not secure the mediators to prove version of the prosecution. Hence, the prosecution has failed to establish the guilt of the accused. Hence, the accused is entitled for acquittal.

10. Point for determination is: Whether the prosecution has proved the

guilt of the accused for the offence punishable under section 7B R/w 8B of

A.P. Prohibition (Amd) Act 2020 beyond all reasonable doubts?

Point N o.1: The Pw1 is the Inspector of S.E.B. Eluru, deposed that on 09.02.2022 at about 10:00 a.m., he along with his staff went to the Vadapalli village and reached house of accused. They found the accused and on seeing them the accused tried to escape from the spot and immediately they caught him and found 10 liters of ID arrack. On enquiry the accused furnished his address particulars and also confessed that he purchased ID arrack from unknown person. Thereafter, collected samples from the ID arrack and then prepared special report and arrested the accused. Basing on the Special report the Pw1 registered FIR in Crime

No.66/2022 and subsequently send the samples for chemical analysis and received report. The Pw1 in his cross examination stated that the scene of offence is situated in residential area. They did not secure mediators. No independent witness are examined.

C.C.No.211 of 2024, dt.19.04.2024.

4

11. As seen from the evidence, except the oral testimony of Pw1 there is no other independent witness is available on record. The evidence of the Pw1 shows that he did not secure mediators for the alleged seizure of the contraband from alleged possession of the accused. The evidence of the Pw1 would show that the scene of offence situated in residential area and normally the people are available. But the investigating officer did not secure the mediators and no reasons are assigned for non securing mediators. Not even secure the inhabitants of the village to act as witnesses or mediators. Further the crime was registered based on the confession of the accused which is not valid under law. The Ex.P3 is the analysis report, by marking this document and MO1, the prosecution at best established that the ID liquor is unfit for human consumption. It is the case of the prosecution is that the accused confessed at the time of his arrest. The confession

before the police is hit by Sec.25 and 26 of Indian Evidence Act, as such the

confession is not valid under law.

12. Hon’ble High Court in Mudavath Mothia Vs. State of A.P. reported in 2002 1 ALT(Cri) 437-2002 0 Supreme (AP) 232 at para No.5, it was held as follows:- “Once the excise officials are entrusted with the investigation of cognizable offence, they become police officials and the excise officials can never say that they are not the police officials. When once they become police officials, the confession recorded by them in the proceedings is inadmissible.”

It is further held that:

“When the independent witnesses are not examined by the prosecution, the prosecution theory of seizing the contraband from the custody of the accused has

C.C.No.211 of 2024, dt.19.04.2024.

5 to be looked with suspicion. The non-examination of independent mediators is fatal to the prosecution version. The seizure proceedings drafted also cannot be considered in view of the bar under Secs.25 and 27 of the Indian Evidence Act, 1872 and Sec.161 of Cr.P.C.”

13. Further our Hon’ble High Court S. BABU SAHEB ALIAS BABU Vs.

STATE OF A.P. reported in 2010 (1) ALT(Cri) 32 at para No.16, it was held as follows:- “When the police conducting the search in a colony or at a place wherein there is possibility of securing the presence of independent mediators, the excise officials or prohibition officers are bound to take the local respectable independent inhabitants. They must make sincere efforts to secure local respectable mediators.

That is the mandate of Section 100 Cr.P.C. The object of Section 100 Cr.P.C. is to ensure confidence in the neighbours and in the public in general that a genuine search has been made and incriminating material has been really found and not planted. The presence of independent respectable mediators at a search is always desirable and the presence of mediators of any other locality would not only weaken, but sometimes destroy the prosecution case.”

14. In view of the above said reasons the prosecution failed to adduce sufficient evidence to prove the guilt of the accused. Therefore, the accused is entitled for the acquittal as the prosecution failed to establish guilt of the accused beyond all reasonable doubts.

15. In the result, the accused is found not guilty for the offence under section 7B R/w 8B of A.P. Prohibition (Amd) Act 2020 and acquitted him under section 248 (1) of Cr.P.C., the bail bonds of the accused shall remain in force for a

C.C.No.211 of 2024, dt.19.04.2024.

6 period of 6 months from the date of Judgment as per section 437 A of Cr.P.C., the

M.O.1 shall be destroyed after expiry of appeal time.

Typed to my dictation to Stenographer, corrected, signed on draft Judgment and pronounced by me in the open Court, this the 19 th day of April, 2024 and digitally signed. Digitally signed by GORLE

GORLE DHARMARAO

DHARMARAODate: 2024.04.19 17:32:02 +0530

Principal Civil Judge (Junior Division)

– cum – Judl. I Class Magistrate,

Kovvur.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED.

FOR PROSECUTION:

Pw1: Sri V.T.V.V.Satyanarayana, C.I of S.E.B. Kovvur.

FOR DEFENCE: -None-

DOCUMENTS MARKED

FOR PROSECUTION:-

Ex.P1 Special Report. Ex.P2 F.I.R. Ex.P3 Analysis Report.

FOR DEFENCE: Nil.

MATERIAL OBJECTS MARKED

M.O.1 is the Sample bottle. Digitally signed by

GORLEGORLE

DHARMARAO

DHARMARAO

Date: 2024.04.19

17:32:13 +0530

Principal Civil Judge (Junior Division)

– cum – Judl. I Class Magistrate, Kovvur.

1 O.S.No.235 of 2022, dt.19.04.2024.

IN THE COURT OF THE PRINCIPAL CIVIL JUDGE

(JUNIOR DIVISION) :: W.G. KOVVUR

Present:- Sri G.Dharma Rao

Principal Civil Judge (Junior Division), Kovvur

Friday, the 19th day of April, 2024

O.S.No. 235 /2022

Between:

Bank of Baroda, Gopalapuram rep., by its Branch Manager, Gopalapuram, Gopalapuram mandal.

….. Plaintiff.

AND 1.Mallipudi Lakshmana Rao, S/o.Satyam, Aged 50 years, Cultivation, R/o.D.No.1- 176, Yadavolu village, Devarapalli mandal.

2.Mallipudi Abbulu, S/o.Venkanna, Aged 55 years, R/o.D.No.2-75, Vadalakunta, Gopalapuram mandal.

3.Muppana Naga Mohana Reddy, S/o.Venkata Reddy, Aged 52 years, Cultivation, R/o.D.No.1-176, Vadalakunta road, Gopalapuram, Gopalapuram mandal.

….. Defendants.

This suit is coming before me on 15.04.2024 for final hearing in the presence of Sri. S.Naga Muneendra and Sri.M.Rama Mohana Rao, Advocates for plaintiff and Sri.M.Parameswara Rao, Advocate for1st Defendantand

Sri.K.S.S.V.G.V.R.Murthy, Advocate for 3rdDefendantand2ndDefendant is abated and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1) This suit is filed by Plaintiff bank for recovery of an amount of

Rs.7,37,294/- due by Defendants to the plaintiff’s Bank.

2 O.S.No.235 of 2022, dt.19.04.2024.

2 a)On 1st April – 2019 the erstwhile Vijaya Bank amalgamated with the bank of Baroda by virtue of Gazette publication issued by the Government of

India under Part – II Section 3 (1) in terms of Section 9 of the Bank Companies

Act. The erstwhile Vijaya Bank started functioning under the name and style of

Bank of Barod i.e., plaintiff bank.

b) The 1st defendant approached the plaintiff bank and requested for crop loan. The plaintiff bank sanctioned Rs.7,00,000/- as Tobacco crop loan under VKC loan facility and gave loan application. The 1st defendant agreed to pay the amount with interest @ 10.20% p.a., after harvesting the crop with half years rests within one year subject to variation of rate of interest as per RBI guidelines. The defendants 2 and 3 agreed to stand as guarantors for the said loan. On 27.01.2014 the 1st defendant executed hypothecation agreement and the defendants 2 and 3 executed letter of guarantee. The defendants agreed to pay all incidental charges including inspection, legal and other expenses and agreed to abide the conditions of the document executed by them. The 1st defendant opened account with the plaintiff and withdrawn the loan amount. The account is being maintained by the plaintiff in its regular course of banking business. The loan account No.401008651002437 is changed as 82460500001758. The plaintiff and its officials demanded the defendants to repay the debt but they postponed the same. The 1st defendant executed acknowledgment on 01.09.2016 and on 24.02.2019 acknowledging the debt. The amount due as per account of the 1st defendant is Rs.7,37,294/- upto 23.02.2022. The defendants are jointly and severally are liable to pay the suit amount. The defendants are not entitled to the 3 O.S.No.235 of 2022, dt.19.04.2024.

benefits of 4/38 and also Act 7/77, Act 45/87 r/w 2/90 or any other Act. The usurious loan Act has no applicable. As per Section 21-A Bank and Companies

Regulation Act 1/84 the Civil Court has no jurisdiction to decide the interest charged by the bank is excessive or penal. The rate of interest is claimed having regard to prevailing rate of interest in private lending market is 36%. The Suit limitation completes by 24.02.2022 but in view of Pandemic limitation extension by Hon’ble Apex Court vide W.P.No.3/2020 from 15.03.2020 to 28.02.2022 and there after vide order dated 10.01.2022, limitation renewed for 90 days from 01.03.2022 which ends by 29.05.2022 due to Civil vacation filed on reopening day hence deemed to be with in limitation. Hence, the suit.

3) The 2nd defendant died but no steps have been taken by the plaintiff as such suit against 2nd defendant is abated. The 1st defendant filed written statement. The 3rd defendant filed separate written statement. The 1st defendant denied the averments in the plaint and further stated that he took the loan from plaintiffs bank an amount of Rs.5,00,000/- and defendants 2 and 3 stood as guarantors. After taking loan he paid monthly installments regularly and cleared the loan. Later, the 1st defendant along with defendants 2 and 3 asked the plaintiff to issue clearance certificate but they postponed the same. The suit is filed to harass the defendants. Hence, the suit is liable to be dismissed.

4)Initially the 3rd defendant was set exparte and later he filed an application to set aside the exparte orders and the same was allowed in

I.A.No.44/2023. The 3rd defendant filed written statement denying the averments in the plaint and further stated that there is no liability of the 3rd defendant and he 4 O.S.No.235 of 2022, dt.19.04.2024.

is nothing to do with the loan transaction. The 1st defendant never asked the 3rd defendant to stood as guarantor and he never stood as guarantor. The documents filed by the plaintiff are not genuine and no relief can be granted. The alleged deed of guarantee is fabricated and the signatures on the said documents are not belonged to the 3rd defendant. The plaintiff did not issue any prior notice demanding the payment of loan and this defendant is not liable for the suit. There is no cause of action. Hence, the suit is liable to be dismissed against the 3rd defendant.

5) The following issues are framed for trial.

i. Whether the plaintiff bank sanctioned loan for Rs.7,00,000/- to the 1 st defendant?

ii. Whether the 2 nd and 3 rd defendant stood as guarantor for the loan sanctioned to the 1 st defendant?

iii. Whether the plaintiff bank is entitled for suit amount?

iv. To what relief?

6)The learned counsel for the plaintiff argued that the 1st defendant obtained loan of Rs.7,00,000/- from the plaintiff bank and subsequently failed to repay the loan. The defendants 2 and 3 stood as guarantors for the loan of the 1st defendant. The plaintiff bank examined its branch manager as Pw1 and marked

Exs. A1 to A7. The evidence of Pw1 clearly established the loan transaction as such the plaintiff is entitled for the decree. Even the 1st defendant himself admitted about obtaining loan in his evidence. Therefore, the plaintiff is entitled for the decree as prayed for.

5 O.S.No.235 of 2022, dt.19.04.2024.

7)The learned counsels for the 1st and 3rd defendants arguments may be treated to be heard.

Issue Nos.1 and 2:

a)The plaintiff bank examined its branch manager as Pw1. The Pw1 filed his chief examination affidavit reiterating the contents of the plaint and marked Exs.A1 to A7. The Pw1 was cross examined, he stated he has no personal knowledge about the loan but he knew as per the record. The Pw1 was suggested by the learned defence counsel in the cross examination that the plaintiff bank obtained signatures of the defendants on unfilled documents and 1st defendant paid amounts regularly and the defendants requested to issue clearance certificate for which the plaintiff denied, the said suggestion was denied by the Pw1. In the cross examination of Pw1 nothing elicited by the defendants.

The 1st defendant examined as Dw1, in his cross examination admitted that previously he obtained loan in Vijaya Bank, Gopalapuram branch. Therefore, the admission of the 1st defendant is clear that he obtained loan from the erstwhile

Vijaya bank, which is amalgamated with the Bank of Baroda. So, it is clear the 1st defendant obtained loan from the plaintiff bank. The 1st defendant took a defence that he discharged the loan and sought for issuance of clearance certificate from the plaintiff but they did not issue. The 1st defendant has not placed any documentary proof to show that he made payments and discharged the entire loan. As per the account copy Ex.A7 the 1st defendant due an amount of

Rs.7,37,294/- by 23.02.2022. Therefore, the Ex.A7 is filed along with certificate is clear that the 1st defendant due an amount of Rs.7,37,294/- to the plaintiff bank.

6 O.S.No.235 of 2022, dt.19.04.2024.

The evidence of Pw1 coupled with Exs.A1 to A7 clearly established the loan which was obtained by the 1st defendant for which the defendants 2 and 3 stood as guarantors and the 1st defendant is due an amount of Rs.7,37,294/-. Though the 3rd defendant filed written statement stating that he did not stood as guarantor but he did not turnup to adduce any evidence on his behalf. The Exs.A4 letter of guarantee would show that the 2nd and 3rd defendants stood as guarantors for the loan of the 1st defendant.

b)In view of the above discussion the plaintiff established that the 1st defendant obtained loan from the plaintiff bank for which the defendants 2 and 3 stood as guarantors and 1st defendant failed to discharge the outstanding amount.

Accordingly the issues are answered in favour of the plaintiff.

c) The 2nd defendant died but no steps have been taken by the plaintiff bank as such the suit against 2nd defendant is abated.

Issue N o.3: In the result, suit is decreed with costs against the 1st and 3rd defendants and they are jointly and severally liable to pay an amount of

Rs.7,37,294/- with subsequent interest at 10.20% per annum on principle amount of Rs.7,00,000/- from the date of filing of suit till date of decree and thereafter, at 6% per annum from date of decree to till date of realization. The suit against 2nd defendant is abated.

Typed to my dictation to Stenographer, corrected, signed on draft Judgment and pronounced by me in open court, on this the 19 th day of April, 2024 and digitally signed. Digitally signed by

GORLEGORLE

DHARMARAO

DHARMARAO

Date: 2024.04.19

17:34:27 +0530

Principal Civil Judge (Jr.Division),

Kovvur.

7 O.S.No.235 of 2022, dt.19.04.2024.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: Pw.1: Boorle Ramesh.

FOR DEFENDANTS:

Dw.1: Mallipudi Lakshmana Rao.

DOCUMENTS MARKED

FOR PLAINTIFF:

Ex.A1 is the Loan Application dated 25.01.2014.

Ex.A2 is the Sanction advise executed by 1 to 3 defendants dated 27.01.2014.

Ex.A3 is the Hypothecation agreement executed by the 1st defendant dated 27.01.2014. Ex.A4 is the deed of guarantee executed by 2nd and 3rd defendants dated 27.01.2014.

Ex.A5 is the acknowledgment letter executed by 1st defendant dated 01.09.2016.

Ex.A6 is the acknowledgment letter executed by 1st defendant dated 24.02.2019.

Ex.A7 is the attested account copy.

FOR DEFENDANTS:

-Nil-Digitally signed by GORLE GORLE

DHARMARAO

DHARMARAO

Date: 2024.04.19

17:34:13 +0530

Principal Civil Judge (Jr.Division),

Kovvur.