Sri G. Srinivas

Page No.1 of 19 CC No.2/2015, dt.26.5.2022

IN THE COURT OF THE CHIEF JUDICIAL MAGISTRATE AT

KHAMMAM

Dated this the 26th day of May, 2022

Present: Sri G.Srinivas Chief Judicial Magistrate,

KHAMMAM.

C.C.No.2 of 2015

1.Name of the complainant ::The State through Sub Inspector of Police, PS Khammam I Town.

2.Name of the accused:: A.1:AnantharapuSeshachary, S/o.Narsaiah,Age:52years, Occu:Carpenter/ChitsBusiness, Vishwabrahmin,R/o.H.No.5-5-30/1, Sambaninagar, Khammam.

A.2:AnantharapuVijayalakshmi, W/o.Seshachary,Age:45years, Occu:Chits Business, Vishwabrahmin, R/o.H.No.5-5-30/1,Sambaninagar, Khammam.

3.Section of Law::Under Section 420 IPC and Sections 4 and 5 of the Prize Chits and Money Circulation Schemes (Banning) Act 1978.

4.Cr.No., and P.S.::Cr.No.248/2013 of P.S Khammam I Town

5.Prosecution conducted by::Additional Public Prosecutor

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6.Defence conducted by ::Sri U.Srinivasa Rao, Advocate

7.Plea of the accused::Not guilty

8.Finding of the court::Found not guilty

9.Sentence or Order :: In the result, accused No.1 and 2 are acquitted under Section 248(1) Cr.P.C for the offences punishable under Section 420 IPC and Sections 4 and 5 of the Prize Chits and Money Circulation Schemes (Banning) Act 1978. The bail bonds of the accused shall stand cancelled after a period of six months. Since M.O’s 1 to 4 are account books and promissory notes, they shall be dealt with as per the Rules of destruction of records.

This case is coming before me for final hearing on 19.5.2022 in the presence of Additional Public Prosecutor for the State and Sri

V.Srinivasa Rao, Advocate for the accused and upon perusing the material papers on record, upon hearing the arguments and having stood over for determination till this day, this court delivered the following:

J U D G M E N T

Accused No.1 and 2 are charged for the offences punishable under Section 420 IPC and Sections 4 and 5 of the Prize Chits and

Money Circulation Schemes (Banning) Act, 1978.

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2.The Sub-Inspector of Police, Khammam I Town P.S filed charge sheet alleging that the accused are running private chit business, started taking money from the surrounding persons on interest in the year 2009; that L.W.1-Mandanapu Ravinder, L.W.2-Podapati Suresh,

L.W.3-Gurram Srinivasa Rao, L.W.4-Samineni Ramanadham, L.W.5-

Velagapudi Kavitha, L.W.6-Gaddam Bhagyamma, L.W.7-Racha Laxmi

Narasamma,L.W.8-PodugupatiJhansi,L.W.9-Thammineni

Satyanarayana, L.W.10-Aalla Seetharamaiah, L.W.11-Madineni Anitha and others were joined in the chits of the accused and that they used to bid the chits and keep the amount with accused by taking interest and with the interest amount they again used to join in new chits;

Accused No.1 and 2 secured properties for their own vide bearing

No.H.No.5-5-30/1 at Shambaninagar, Khammam and house situated at

Pandillapalli Revenue Village. That L.W.1-M.Ravinder and his father- in-law and mother-in-law and also his cousin i.e., Bandarupalli

Venkateswarlu joined in various chits of accused and some of the installments were paid. That A.1 and A.2 took amount of

Rs.2,50,000/- from M.Ravinder, Rs.3,00,000/- from Dobbala Veeraiah and Rs.1,00,000/- from Bandarupalli Venkateswarlu, Rs.3,20,000/- from

Page No.4 of 19 CC No.2/2015, dt.26.5.2022

P.Suresh, Rs.2,00,000/- from G.Srinivasa Rao, Rs.7,00,000/- from

S.Ramanadham, Rs.2,00,000/- from G.Bhagyamma, Rs.1,00,000/- from

R.Laxmi Narasamma, Rs.1,50,000/- from T.Satyanarayana, Rs.3,00,000/- from A.Seetharamaiah and executed the promissory notes and cheques; that the said persons and others also joined in various chits of the accused and paid some of the installments. That both the accused did not repay the loan amount and chits amounts to the concerned, that both the accused mortgaged their house to Ambadipudi Kavitha for

Rs.24,00,000/- and sold the house site to Ravuri Mallikharjuna for

Rs.10,00,000/- and kept the said amount with them. That the accused cheated the witnesses and others and that they have committed the offences under Section 420 of IPC and Sections 4 and 5 of the Prize

Chits and Money Circulation Schemes (Banning) Act, 1978.

3.Cognizance was taken for the offences punishable under

Section 420 IPC and Sections 4 and 5 of the Prize Chits and Money

Circulation Schemes (Banning) Act 1978.

4.Charges for the offences punishable under Section 420 of IPC and

Sections 4 and 5 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 were framed, read over and explained to the

Page No.5 of 19 CC No.2/2015, dt.26.5.2022

accused. They denied the same, pleaded not guilty and claimed to be tried.

5.Prosecution examined P.Ws.1 to 12 and marked Exs.P.1 to

P.4 and M.Os.1 to 4.

6.After closure of the prosecution evidence, the accused are examined under Section 313 Cr.P.C explaining the incriminating material appearing against the accused in the evidence of the prosecution witnesses. They denied the same.

7.Though the Accused sought time for defence evidence, subsequently, learned counsel for the accused reported that there was no evidence on behalf of the accused.

8.Heard the Learned Additional Public Prosecutor and the

Learned counsel for the accused.

9.The Point that arises for consideration is as to:

Whether the prosecution could bring home the guilt of the Accused for the offences punishable under Section 420 of IPC and Sections 4 and 5 of the Prize Chits and Money Circulation Schemes (Banning) Act 1978, beyond reasonable doubt?

POINT:

10.P.W.1 is examined as defacto complainant. P.Ws.2 to 10

Page No.6 of 19 CC No.2/2015, dt.26.5.2022

are examined as victims.

11.The evidence of P.W.1 is that he joined in three chits with (run by the accused) accused 1 and 2 in January, 2013, two chits are of Rs.2,00,000/-, for which Rs.10,000/- per month with a duration of 20 months, other chit is of Rs.1,00,000/- for which Rs.5,000/- per month with a duration of 20 months and that he paid RS.80,000/- for 7 months for each Rs.2,00,000/- chits and paid Rs.30,000/- for 7 months and from 8th month, the chits were not continued. P.W.1 also deposed that the payments were endorsed in chit books by accused

No.1 and 2. Further evidence of P.W.1 is that he advanced handloan of Rs.2,50,000/- for interest under promissory note. He also deposed that when he demanded for return of loan amount, the accused No.1 issued a cheque for Rs.2,50,000/- on the pretext that he will pay interest later and that when he presented the cheque, it was returned as insufficient funds and therefore, he proceeded to the house of the accused, but there he found the house locked and none were present.

Ex.P1 is complaint.

12. The evidence of P.W.2 is to the effect of advancing

Rs.2,00,000/- for interest to accused under promissory note. His

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further evidence is that he came to know that the accused mortgaged their house in the year 2001 and remained absconded.

13.The evidence of P.W.3 is that Accused No.1 and 2 were running private chits for the past 20 years and that in the year 2009 he joined chits in the month of September, 2009, he joined in

Rs.60,000/- chit and that in the year 2011, he joined in Rs.90,000/- chit and that he joined in Rs.20,000/- and Rs.30,000/- chit. He further deposed that he used to pay chits amount to accused No.2 and completed payment of all installments of all chits and in token of receipt, the accused issued chit books to him and that he handed over the chit books to the police. Further evidence of P.W.3 is that at the request of accused No.1 and 2 he extended loan for an amount of

Rs.1,00,000/- for interest @24% per annum under promissory note. He also deposed that he was supposed to receive Rs.3,00,000/- towards chit amount and Rs.1,00,000/- with interest, but accused No.1 and 2 did not return any amount. According to P.Ws.3, 11 other victims also joined in the chits.

14.The evidence of P.W.4 is that the accused were running private chits for the past 10 years and he joined in the chits and that

Page No.8 of 19 CC No.2/2015, dt.26.5.2022

he joined in Rs.1,50,000/- chit and paid total installment and that he joined Rs.1,00,000/- chit and he paid 8 installments and in the year 2013 he joined in Rs.10,00,000/- chit and he paid 8 months installment. P.W.4 further deposes that he used to pay the chit amounts to accused No.1, who issued chit receipt books to him. He also deposed that accused No.1 and 2 discontinued chits and they did not return any amount on the pretext that they would return amount in due course, but the accused left uninformed.

15.The evidence of P.W.5 is that the accused were running private chits from 10 years; that in the year 2013, he joined in chit of

Rs.1,00,000/- and paid total installment. He also deposes that in the year 2013, he joined in Rs.50,000/- chit and he paid installment of 18 months, in total he paid Rs.42,000/- for said chit and he also advanced an amount of Rs.2,00,000/- to accused on interest under promissory notes. That thereafter, accused No.1 and 2 issued chit receipt books to him, that later they discontinued chits and they did not return any amount, on the pretext that they will return amount in due course, but the accused left uninformed.

16.P.W.6 also deposed that the accused are running private

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chits for the past 10 years and that in the year 2013 he joined in chit in the month of 2013, he joined in Rs.1,00,000/- chit and paid total installment and thereafter, the accused fled away by vacating their house. He also deposed that he used to pay chit amounts to A.1 and

A.2 and in token of receipt, the accused issued chit receipt books to him., but the accused discontinued chits and they did not return any amount, and left uninformed.

17.The evidence of P.W.7 is that the accused run private chits for the past 10 years and that in the year 2012, he joined in

Rs.1,00,000/- chit and he paid installment of 9 months, in total he paid Rs.30,000/- for chit and that in the month of October, 2012, he also advanced an amount of Rs.30,000/- to the accused on interest under promissory note and that accused No.1 and 2 fled away by vacating their house and he also deposed that in the year 2014 the accused issued chit receipt books to him and later accused No.1 and 2 discontinued chits and they did not return any amount on the pretext that they would return the amount in due course and left uninformed.

18.P.W.8 also deposed that the accused run private chits for the last 10 years and he joined in chits of Rs.1,00,000/- in the year

Page No.10 of 19 CC No.2/2015, dt.26.5.2022

2013 and he paid 10 installments, in total he paid Rs.37,000/- for the said chit. He also deposed that in the year 2010 he advanced

Rs.50,000/- and in the year 2012, he advanced an amount of

Rs.1,00,000/- to the accused on interest under promissory note; that thereafter, Accused No.1 and 2 fled away by vacating their house; that he used to pay chit amounts to A.1 and A.2 and in token of receipt, accused issued chit receipt books to him, but later accused No.1 and 2 discontinued chits and they did not return any amount and left uninformed.

19.P.W.9 also deposed that in the year 2013 he joined in chits of Rs.5,00,000/- and he paid 28 installments and joined in

Rs.3,00,000/- chit and paid installments of 18 months. He also deposed that in the year 2011, he advanced an amount of

Rs.2,00,000/- and in the year 2012, he advanced an amount of

Rs.1,50,000/- on interest under promissory note. He also deposed that he used to pay chits amounts to accused No.1 and 2 and in token of receipt, the accused issued chit receipt books to him. He also deposes that the accused discontinued chits, did not return any amount and left uninformed and they did not return the amount.

Page No.11 of 19 CC No.2/2015, dt.26.5.2022

20.The evidence of P.W.10 is that accused are running private chit business for the last 10 years and in the year 2012 he joined in

Rs.2,00,000/- chit and he paid 15 installments, total an amount of

Rs.1,22,000/- to A.2 and that he also advanced an amount of

Rs.2,00,000/- to accused on interest under promissory notes and that accused No.1 and 2 fled away by vacating their house. He also deposes that he used to pay chit amounts to A.1 and A.2 and in token of receipt, accused issued chit receipt books to him, but later the accused discontinued chits and they did not return any amount and left uninformed.

21.From the evidence of P.Ws.1 to 10, it is evident that

Accused No.1 and 2 are the chit agents and that they joined in the chits run by the accused. That these witnesses depose as to furnishing chit books to police, but according to the evidence of the investigation officer i.e., P.W.12, P.Ws.1 to 10 did not produce any document stating that they intended to go to Civil Court. His evidence is that he did not collect any documents from P.Ws.1 to 10. Therefore, the evidence of P.Ws.1 to 10 in regard to issuance of receipts for the amounts paid by them towards chit is not substantiated by any

Page No.12 of 19 CC No.2/2015, dt.26.5.2022

documentary evidence. Whether the oral evidence of P.Ws.1 to 10 can be taken into consideration to ascertain guilt to the accused is to be appreciated. It is to be mentioned that when there is documentary evidence and when it is not produced before the court, it can be presumed by invoking Section 114 of the Indian Evidence Act that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds. (to the prosecution which withholds it). In the light of Section 114 of the Indian Evidence Act, the evidence of P.Ws.1 to 10 has to be appreciated.

22.Though P.W.1 deposes that he advanced handloan of

Rs.2,50,000/- for interest under promissory note and that A.1 issued cheque for Rs.2,50,000/- and that it was returned for the reason of insufficient funds, in the cross examination of P.W.1 it is elicited that he did not file promissory note and that he did not file any civil suit in regard to advanced amounts. It is also elicited from his cross examination he did not file cheque and he did not file the cheque bounce case against the accused for dishonor of the said cheque. If said loan amount was advanced by the witness to the accused, the witness would have approached the court concerned for recovery of the

Page No.13 of 19 CC No.2/2015, dt.26.5.2022

promissory note amount and for the amount of the cheque which was bounced. Further it is elicited in the cross examination of P.W.1 that in his Section 161 Cr.P.C. statement he did not mention about the return of cheque for the reason for insufficient funds, and did not mention specifically as to which of the accused issued cheque and which of the accused executed promissory note and that he did not mention as to submitting the cheque, promissory notes and chit books to the police. Further it is also elicited in the cross examination of

P.W.1 that he did not mention specifically as to every month dividends and payments made for individual chits. Therefore, the evidence of

P.W.1 in regard to payment of Rs.80,000/- for seven months and

Rs.30,000/- for the stated chits is not reliable.

23.Though P.W.2 deposed that the he advanced Rs.2,00,000/- to the accused for interest under promissory note executed by A1, it is elicited in his cross examination he did not file any civil case based on the said pronote. It is the evidence of P.W.2 in the cross examination that he does not remember whether in his 161 Cr.P.C. statement he mentioned the fact that the accused requested to advance hand loan for job of their son. Even if this evidence of P.W.2 is considered, it

Page No.14 of 19 CC No.2/2015, dt.26.5.2022

does not give scope for criminal proceedings. In the cross examination of P.Ws.3 to 9, it is elicited that they did not file any document in support of payment of chits to the accused. That P.Ws.3 to 5, 7 to 10 deposed in their cross examination that they possess promissory notes which were executed by the accused under which they advanced amount to the accused, but the said promissory notes are not filed into the court. It is elicited from the cross examination of P.W.9 that they have not filed any civil suits. If at all the witnesses advanced any amounts to the accused and the accused executed promissory notes, these witnesses would have approached civil courts for recovery of amount and this conduct of the witnesses would make their evidence improbable.

24.The evidence of P.W.11 is with regard to conducting scene of panchanama under Ex.P.2 and preparing rough sketch. The Crime

Details Form is not of much relevant. No property is seized under

Ex.P.2. The prosecution failed to connect the accused with the offences for which they stood charged through the evidence of P.Ws.1 to 10.

25.Prosecution relies on Ex.P.4-Confession and Recovery

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Panchanama and M.Os.1 to 4. Insofar Ex.P.4 is concerned, the evidence of P.W.12 is that on 23.5.014 at 11.30 a.m, he arrested accused No.1 and 2 at their house in Stambhani Nagar, Khammam and secured the presence of mediators namely V.Kondala Rao, G.Subba Rao and in their presence he recorded confession and recovery statement and seized Raghu Long Note Books-7 containing 100 pages, one account book covered with blue cover, 2 note books containing details of chits, 68 promissory notes out of which some are filled up and some are blank. It is to be mentioned that the prosecution did not examine the mediators to Ex.P.4. That the Learned Additional Public

Prosecutor gave up evidence of L.Ws.14 and 15 i.e., mediators as police filed report that whereabouts of L.Ws.14 and 15 are not known.

It is elicited in the cross examination of P.W.12 that he did not obtains photographs or videographs while seizing M.Os.1 to 4 from the house of the accused. In the absence of the evidence of mediators, the evidence of P.W.12 in regard to seizure of P.Ws.1 to 4 from the house of Accused No.1 and 2 becomes weak piece of evidence.

26.Whether M.Os.1 to 4 are relevant for the purpose of the proof of the charges in the present case is to be considered. In the

Page No.16 of 19 CC No.2/2015, dt.26.5.2022

cross examination of P.W.12 it is elicited that there is no mention in 161 Cr.P.C. statement of P.Ws.1 to 11 about specific particulars such as value of chit, subscription paid by them, dividends received by them etc. Had there been details in regard to monthly subscriptions paid by the witnesses, dividends received by them, more so chit books statedly handed over by them to police, they would have been nexus as to the contents of M.Os. 1 to 3, to show that the accused run chits. It is also to be mentioned that the content of M.Os.1 to 3 are not proved by examining the independent witness. It is elicited in the cross examination of P.W.12 that he did not enquire or examine the persons whose names are mentioned in M.O.3. If at all there are entries in

M.O.3 in regard to the stated chits or advances, the persons whose names are reflected in M.O.3 are the proper witnesses to depose as to the stated transactions. It is also to be mentioned that M.O.4 is 68 promissory notes. Some of them are blank and some of them are filled. None of the witnesses depose that they gave blank promissory notes to the accused or filled promissory notes. The persons who allegedly gave M.O.4 promissory notes are not examined. The evidence of P.Ws.1 to 10 is that they obtained promissory notes from the

Page No.17 of 19 CC No.2/2015, dt.26.5.2022

accused. Therefore, it is held that M.O.4 promissory notes are not proved. In the circumstances, it is to be held that the prosecution failed to establish that the accused run chits, took advances from the witnesses and cheated them by non-payment of the chit amounts. It is to be mentioned that it is for the prosecution to establish its case against the accused beyond reasonable doubt. Though the learned

Additional Public Prosecutor contended that though the investigating

agency did not produce the documentary evidence furnished by P.Ws.1 to 10, it itself did not make the evidence of P.Ws.1 to 12 unreliable.

However, when there appears documentary evidence, suppression of material evidence entitles the accused benefit of doubt. Therefore, it is held that the prosecution failed to establish its case against the accused. Accordingly, the point is answered.

27.In the result, accused No.1 and 2 are acquitted under

Section 248(1) Cr.P.C for the offences punishable under Section 420

IPC and Sections 4 and 5 of the Prize Chits and Money Circulation

Schemes (Banning) Act 1978. The bail bonds of the accused shall stand cancelled after a period of six months.

Since M.O’s 1 to 4 are account books and promissory

Page No.18 of 19 CC No.2/2015, dt.26.5.2022

notes, they shall be dealt with as per the Rules of destruction of records.

Dictated to the Stenographer Gr.III and transcribed by her,

corrected and pronounced by me in the open court on this the 26th day of May, 2022.

CHIEF JUDICIAL MAGISTRATE

KHAMMAM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION:- P.W.1: Mandanapu Ravinder P.W.2: Gurram Srinivasa Rao P.W.3: Podapati Suresh P.W.4: Samineni Ramanadham P.W.5: Gaddam Bhagyamma P.W.6: Racha Laxmi Narasamma P.W.7: Podugupati Jhansi P.W.8: Thammineni Satyanarayana P.W.9: Aalla Seetharamaiah P.W.10: Madineni Anitha P.W.11: P.Madhu P.W.12: D.Laxmi Narayana

FOR DEFENCE: -None-

EXHIBITS MARKED

FOR PROSECUTION:

Ex.P1: Complaint Ex.P2: Crime Detail Form Ex.P3: F.I.R Ex.P4: Confession and Recovery panchanama

Page No.19 of 19 CC No.2/2015, dt.26.5.2022

FOR DEFENCE: -Nil-

MATERIAL OBJECTS MARKED

M.O.1 : Long Note Books – 7 M.O.2 : Account Book with blue Cover M.O.3 : Note Books – 2 M.O.4 : 68 promissory notes (some of them are blank and some of them are filled up)

CHIEF JUDICIAL MAGISTRATE

KHAMMAM.

1/11 C.C No.142/2013

IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS,

SATHUPALLY

Dated this the 05 th day of March, 2019

Present: Sri. G. Srinivas,

Judicial Magistrate of First Class,

Sathupally.

CALENDAR CASE. No.142 OF 2013

(Crime No.125/2013 of Police Station, Sathupally.) BETWEEN: The State through Inspector of Police, Police Station, Sathupally.

...Complainant

And

1.Vanama Rambabu, S/o. Koteswara Rao, Age: 32 years, Occ: Hotel Worker, N/o. Jagannadhapuram village, Mulakapalli Mandal, Presently residing at Kistapuram village of Sathupally Mandal,

2.Aluri Nirmala, D/o. Bhaskar Rao, Age: 30 years, Occ: Coolie, R/o. Kistapuram

3.Aluri Kishore, S/o. Bhaskar Rao, Age: 26 years, Occ: Coolie, R/o. Kistapuram.

4.Aluri Premavani, W/o. Kishore, Age: 22 years, Occ: Coolie, R/o. Kistapuram

5.Velpula Jayamma @ Vijayamma, W/o. Samson, Age: 40 years, Occ: Coolie, R/o. Ramanagaram village, Sathupally Mandal. …Accused

This case is coming before me on 25.02.2019 for final hearing in the presence of Learned Assistant Public Prosecutor for the State and Sri V.Ram Mohan Rao, Learned counsel, for the accused and having heard and stood over for consideration till this day, this court delivered the following:

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

1.A.1 to A.5 are tried for the offences punishable under Sections 498-A, 323, 506 Read with 34 of the Indian Penal Code.

2.The Inspector of Police, Sathupally Police Station filed charge sheet against the accused alleging that the defacto complainant/Vanama Suseela is the legally wedded wife of A.1; that the accused was addicted to vices and was not seeing the welfare of the defacto complainant and their children and developed illegal contacts with A.1 and that he used to harass the defacto complainant mentally and physically. That A.2 to A.5 supported A.1 in that

JMFC, Sathupally.

2/11 C.C No.142/2013 regard. That on 07.04.2013 A.1 rang the defacto complainant and threatened her over phone that he would kill her and children, with an intention to leave society of the defacto complainant. On 08.04.2013 A.2 to

A.5 went to the house of the defacto complainant, unnecessarily picked up quarrel with her, with the support of A.1 and beat her with hands indiscriminately. The defacto complainant approached L.W.6/Kokkeragadda

Bharathi and informed about the acts of the accused and that she asked the accused about their acts. But the accused again picked up quarrel with the defacto complainant. Having fed up with the acts of A.1 and A.2 to A.5, the defacto complainant lodged a report. A case was registered and investigated into. Charge sheet was laid against A.1 to A.5 for the offences punishable under Sections 498-A, 323, 506 Read with 34 of the Indian Penal

Code.

3.Cognizance was taken for the offences punishable under Sections 498-A, 323, 506 Read with 34 of the Indian Penal Code against A.1 to A.5.

4. After securing presence of the accused, copies of documents were furnished to them.

5.A.1 to A.5 were examined under Section 239 Cr.P.C explaining the accusation. They denied the same. Heard. Charges for the offences punishable under Sections 498-A, 323, 506 Read with 34 of the Indian Penal

Code were framed by my learned predecessor, read over and explained to the accused. They denied the same, pleaded not guilty and claimed to be tried.

6.Prosecution examined P.Ws.1 to 6 and marked Exs.P.1 to P.4.

7. After closure of the prosecution evidence, A.1 to A.5 were examined under Section 313 of the Criminal Procedure Code explaining the incriminating material appearing against them in the evidence of the

JMFC, Sathupally.

3/11 C.C No.142/2013 prosecution witnesses. They denied the same and reported no defence evidence.

8.Heard the learned Assistant Public Prosecutor and the learned counsel for the accused.

9. The point that arises for consideration is as to whether the prosecution could bring home the guilt of the accused for the offences punishable under Sections 498-A, 323, 506 Read with 34 of the Indian Penal

Code, beyond reasonable doubt.

POINT :

10.P.W.1 is the defacto complainant. P.W.2 is the son of P.W.1.

P.Ws.3 and 4 are examined as circumstantial witnesses. P.W.5 is examined to prove preparation of Crime Details Form. P.W.6 is the Investigating Officer.

11.The evidence of P.W.1 is that A.1 is her husband, A.2 is the 2nd wife of A.1, A.3 is the younger brother of A.2, A.4 is wife of A.3 and A.5 is the mother of A.4. She also deposes that her marriage with A.1 was performed in the year 1998. She also deposes that after her marriage with A.1, they lived at Jagannadhapuram village and she was blessed with two children.

P.W.2 deposes that P.W.1 is his mother and A.1 is his father. It was elicited from the cross examination of P.W.2 that along with his father, he went to

Hyderabad. It is to be mentioned that nothing is elicited in the cross examination of P.Ws.1 and 2 in regard to the relationship of A.1 with P.W.1.

P.W.3 also deposes that A.1 is the husband of P.W.1. P.W.4 also deposes that

A.1 is the husband of P.W.1. He also deposes other circumstances. It is to be mentioned that there is no challenge in regard to the relationship of P.W.1 with A.3 to A.5. It was suggested to P.W.1 that she falsely deposed that A.1 is living with A.2 and he eloped with A.2. As per the evidence of P.W.3 he came to know that A.1 eloped with A.2 and married her. However, it is only hearsay evidence. P.W.4 also deposes that A.1 went to Hyderabad along

JMFC, Sathupally.

4/11 C.C No.142/2013 with A.2 and his children. However, no direct evidence is produced by the prosecution in respect of marriage of A.1 along with A.2. It is to be mentioned that in order to prove the offence punishable under Section 498-A of Indian Penal Code, the prosecution is required to prove that the husband or the relatives of the husband subjected P.W.1 to cruelty. Therefore, the offence under Section 498-A of Indian Penal Code is not attracted even if cruelty is proved by the prosecution towards P.W.1 by A.2.

12.P.W.1 deposes that at the time of her marriage they gave cash of

Rs.80,000/-, presented gold weighing 5-kasulu and a house in Nuziveedu to

A.1 towards dowry. It was suggested to P.W.1 that she falsely deposed that at the time of her marriage, they gave cash of Rs.80,000/-, gold weighing 5- kasulu and gave a house to A.1 towards dowry. It is to be mentioned that no charge is framed in-regard to receiving of dowry by the accused. As such, there needs no of these consideration in this aspects.

13.P.W.1 deposes that after 7 or 8 years of marriage, by selling house at Nuziveedu, A.1 purchased an auto and since the date of purchase of auto,

A.1 is habituated to taking alcohol and other vices and he used to come to house in drunken condition and to harassed her and her children. She also deposes that panchayaths were held during the period of 2 to 3 years and in the year 2008, A.1 eloped with A.2 and went somewhere; that one month thereafter, A.1 returned and convened a panchayath. She also deposes that

A.1 stated that he was feeling unwell mentally and that stating that he has anguish over his children, he took away their children to Hyderabad. She also deposes that when A.1 did not bring the children to her, she asked A.1 and A.1 replied that the children are not with him. She also deposes that in the year 2009, A.2 came to Kistapuram along with her younger son. She further deposes that she presented report to police, Sathupally and that police conducted counseling and A.1 assured to look after her well and he stayed with her for about 3 days and thereafter, he went away. She also

JMFC, Sathupally.

5/11 C.C No.142/2013 deposes that on 07.04.2013, A.2 came to her and there was exchange of words and quarrel ensued; that A.1 stated that as to why he abused his 2nd wife and threatened her and abused her and it was about 07.30 pm. The further evidence of P.W.1 is that on 08.04.2013, A.2 to A.5 were sent to her and that they beat her; A.3 chased her with an Axe. Ex.P.2 is the agreement (Pramana Patram).

14.Prosecution relies on the evidence of P.Ws.2 to 4 and learned APP submits that the evidence of these witnesses corroborate the evidence of

P.W.1. According to the evidence of P.W.2, his father i.e., A.1 went away with one Nirmala in the year 2010 and that after some days, A.1 sent him to the house of the said Nirmala. He also deposes that P.W.1 saw that he was at the house of Nirmala and thereafter, she presented report to police and on presenting report A.1 came to them assuring that he would look after P.W.1 and him and stayed for three days and thereafter went away with the said

Nirmala, by taking him and his younger brother. He also deposes that on one day, the said Nirmala came to their house in Kistapuram and abused P.W.1, and his younger brother and went away. That on the evening, A.1 made phone call and threatened that he would kill him, P.W.1 and his brother on the next day morning. That on the next day, A.2 to A.5 came to their house and beat him, P.W.1 and his brother. It is elicited in the cross examination of

P.W.2 that by the date of the stated incidents, he was aged about 12 years, and that he used to come to house from school by 04.30 pm. P.W.2 denied the suggestion that he has not stated to police in his statement that his father sent him and his brother to the said Nirmala.

15.P.W.3 deposes that about 9 years back, A.1 took A.2 with him away and P.W.1 presented report. He also deposes that A.1 agreed for the terms, when he was called and talks by the police and that A.1 stayed some days along with P.W.1 and again eloped with A.2. He also deposes that he came to know that he married A.2. That 5 or 6 years thereafter, A.2 came to

JMFC, Sathupally.

6/11 C.C No.142/2013

Kistapuram village and picked up quarrel with P.W.1 and her children and went away. That on the next day A.2 to A.4 came to the house of P.W.1 in

Kistapuram and beat P.W.1. It is elicited from the cross examination of P.W.3 that the children of P.W.1 are not his friends. P.W.3 was suggested that he came to know about A.1 eloping with A.2, through the villagers of his village and that he is not aware in-regard to the said affairs and quarrels. It is elicited in his cross examination that his cousin sister’s name is Mullagiri Lilly.

Further, he deposes that he does not know as to whether there was love affair between A.3 and the said Lilly and there were quarrels in the village.

It is elicited from the cross examination of P.W.4 that there was love affair between A.3 and Mullagiri Lilly and that there were quarrels in that regard.

Therefore, there is any amount of possibility for P.W.3 to speak against the accused.

16.P.W.4 deposes that she used to work in Mahila Mandali and prior to the year 2009, they conducted two or three panchayaths, in-regard to illicit relationship between A.1 and A.2 and in that regard, P.W.1 and A.1 were picking-up quarrels. She also deposes that they stated to P.W.1 that she was unnecessarily blaming A.2. That 20 days thereafter, A.1 went to

Hyderabad along with A.2 and his children. That in the year 2009, A.2 came to his parental house in Kistapuram village, along with P.W.2 and on seeing

P.W.2 with A.2, P.W.1 presented report with police. She deposes that A.1 and his younger son were summoned by police and that a panchayath was held and that A.1 executed a document in the presence of one Bixapathi, assuring to look after P.W.1 and her children well. She also deposes that A.1 stayed about three days along with P.W.1 and thereafter, he eloped with A.2. The further evidence of P.W.4 is that on 07.04.2013, A.2 came to P.W.1 and picked up quarrel. That A.1 threatened P.W.1 over phone that he would kill her and her children and questioned as to why she picked-up quarrel with A.2. That on 08.04.2013, at about 03.00 pm, A.2 to A.5 beat P.W.1. She also deposes

JMFC, Sathupally.

7/11 C.C No.142/2013 that when she was proceeding to her house, she observed that A.3 was holding an Axe and was coming towards P.W.1, stating that he would kill her.

It is elicited in her cross examination that she visited police station on number of occasions, being member of Mahila Mandali, and also gave evidence in cases. It was suggested to P.W.4 that her daughter-in-law presented a report against her and her husband and that P.W.1 is a witness in the said case, and as such, she gave false evidence against the accused.

17.It is elicited in the cross examination of P.W.6 that as per Ex.P.1- report the accused beat P.W.1 on 07.04.2013, and while A.1 beating P.W.1, she escaped and came to the police station. As such, Ex.P.1-report would have been presented on the said date. However, Ex.P.1 was presented on 09.04.2013 at 07.30 pm. It is elicited in the cross examination of P.W.6 that there is correction in-regard to date and time in column No.3 of First

Information Report. It is also elicited in the cross examination of P.W.6 that it is not mentioned in Ex.P.1-report and P.W.1 did not state in her statement that the accused demanded dowry and harassed her therefor, and harassed her cruelly and that he has not referred P.W.1 to the hospital. It is also elicited in the cross examination of P.W.6 that P.W.1 did not state that she visited hospital and that she did not hand over any medical certificate. It is also elicited in the cross examination of P.W.6 that Ex.P.4-First Information Report, in column No.8, the reasons for delay in reporting complaint is mentioned as “for Treatment”. It is also elicited in the cross examination of P.W.6 that there is no mentioned in Ex.P.1-report in-regard to P.W.1 was referring to hospital and was providing with treatment. It is also elicited in the cross examination of P.W.6 that he has not collected call data in proof of A.1 making phone call to P.W.1 and threatening her to kill her. It is also elicited in his cross examination that charge sheet was filed for offences under

Sections 498-A, 323, 506 Read with 34 of Indian Penal Code by deleting

Section 497 I.P.C.

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8/11 C.C No.142/2013

18.Prosecution relies on Ex.P.2 statedly executed by A.1. It is suggested to P.W.1 that Ex.P.2 is not executed by A.1. It is to be mentioned that the witnesses to the said document i.e. Ex.P.2 are not examined to prove that document. As per the evidence of P.W.1 the incident occurred on 07.04.2013 and 08.04.2013 and that Ex.P.1 was report was presented on 09.04.2013 and that no explanation is offered for the delay of the presenting the report. It is also to be mentioned that selling away the house and purchasing auto by A.1 would not fall within the definition of cruelty. The only ground that is to be considered is that A.1 eloped with A.2. It is to be mentioned that learned counsel for the accused relies on a decision reported in RAMAIAH ALIAS RAMA Vs. STATE OF KARNATAKA: 2015 (1) ALD (Crl.) 196 (SC), wherein it was held that when the demand of dowry and giving of dowry at the time of marriage has not been proved, further version of the prosecution witnesses that there was a demand for payment of remaining amount and harassment of the victim therein becomes doubtful.

However, the facts of the present case are different. There is no charge in regard to giving and demand of dowry. Further, it is not the evidence of

P.W.1 that the accused demanded dowry. It is also to be mentioned that in- so-far as A.2 to A.5 is concerned, the incident statedly happened on 07.04.2013 and 08.04.2013 in regard to exchange of words, abuse and threatening P.W.1, do not attract the offence punishable under Section 498-A of Indian Penal Code even if the evidence of P.W.1 is accepted in toto.

19.It is also to be mentioned that the evidence of P.W.1 is that in the year 2008 A.1 eloped withs A.2 and went somewhere, in the year 2009 A.2 came to Kistapuram along with her younger son and that she presented report to police and that the police conducted counseling. Therefore, it appears that A.1 eloping with A.2 was the subject matter of the report presented previously. It is not placed on record as to what was the result of the said report. It is the evidence of P.W.1 in her cross examination that

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9/11 C.C No.142/2013

Ex.P.2 was written at Panchayath Office, Sathupally and after counseling

before the police A.1 agreed for the terms under Ex.P.2. However, as per the

evidence of P.W.4, police summoned A.1 and his younger son and that panchayath was held and that A.1 executed a document. Therefore, it is not clear as to whether Ex.P.2 was written at the panchayath office or in the police station. However, as already mentioned above, the witnesses who signed Ex.P.2 are not cited and examined as witnesses. Though P.W.1 deposes in her cross examination that P.W.4 was present at the time of execution of Ex.P.2, P.W.4 did not depose that she was present when Ex.P.2 was exhibited. It is also to be mentioned that as per the evidence of P.W.1 after counseling by the police A.1 stayed with her for about 3 days and thereafter he went away. When such is the evidence of P.W.1, she ought to have persuaded the report presented by her in the year 2009. The evidence of P.Ws.2 to 4 is also to the effect that A.1 eloped with A.2 in the year 2009.

Therefore, the said incident appears to be the subject matter of the report presented by P.W.1 in the year 2009. As per the evidence of P.W.1 on 07.04.2013 A.2 came her and there was exchange of words and quarrel ensued and that A.1 stated that as to why she abused his 2nd wife and threatened her and abused her and it was about 07.30 pm. P.W.1 also deposes that on 08.04.2013 A.2 to A.5 were sent to her and that A.3 chased her with an axe. As already mentioned above, Ex.P.1-report and the evidence of P.W.1 reflects that P.W.1 presented report on the same day of incident and that she directly went to police station. But, however, Ex.P.1- report was presented on the next day i.e., on 09.04.2013 at 07.30 pm.

However, in the cross examination, P.W.1 deposes contrary to the averments of Ex.P.1-report that she presented report on the next day of the incident. It is to be mentioned that as per cross examination of P.W.1 she herself went to hospital for treatment to the injuries sustained by her and that she went to

Dr. Ranga for treatment. The said medical report is not filed into the court.

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10/11 C.C No.142/2013

It is also to be mentioned that as per the evidence of P.W.1, A.2 picked-up quarrel and that A.2 to A.5 beat her. But, P.W.2 deposes that A.2 to A.5 also beat him, P.W.1 and his brother. P.W.3 deposes that A.2 picked-up quarrel with P.W.1 and went away and that on the next day, A.2 to A.4 came to the house of P.W.1 in Kistapuram and beat P.W.1. According to the evidence of

P.W.4, A.2 to A.4 beat P.W.3. It is to be mentioned that P.W.2 is the son of

P.W.1 and P.W.4 is witnesses who gives evidence in number of cases and that their evidence cannot be relied on. The evidence of P.W.3 cannot be considered since there are quarrels in-respect of love and affair between A.1 and Mullagiri Lilly, who is the cousin of P.W.3. P.W.3 deposes that he is not aware as to the love affair between A.3 and Mullagiri Lilly and there were quarrels in that regard. P.W.4 in categorical terms deposes that there are quarrels in regard to love affair between A.3 and Mullagiri Lilly. Therefore,

P.W.3 is not reliable witness and his evidence is to be discarded. The evidence of P.W.5 is in regard to preparation of Crime Details Form and it is not crucial in this case. It is also to be mentioned that the call data of A.1 is not collected to show that A.1 made phone call to P.W.1 and threatened her that he would kill her. In the above circumstances, the accused can be given benefit of doubt. It is also to be mentioned that it is for the prosecution to prove its case against the accused beyond reasonable doubt. The point is answered, holding that the accused can be extended benefit of doubt.

20.In the result, A.1 to A.5 are acquitted under Section 248(1) of

Criminal Procedure Code for the offences punishable under Sections 498-A, 323, 506 Read with 34 of the Indian Penal Code. The bail bonds of the accused shall stand cancelled after a period of six months, in view of Section 437-A of criminal Procedure Code.

Dictated to the stenographer Grade-III, transcribed by her, and

pronounced by me in open Court on this the 05th day of March, 2019.

JUDICIAL MAGISTRATE OF FIRST CLASS,

SATHUPALLI.

JMFC, Sathupally.

11/11 C.C No.142/2013

APPENDIX OF EVIDENCE

Witness examined for Prosecution:-Defence:- PW1:Vanama Susheela -Nil-

PW2:V.Sathish

PW3:M.Buchi Babu

PW4:K.Bharathi

PW5:V.Venunadham

PW6:Ch.Mohan Rao

EXHIBITS MARKED

Prosecution:- Defence:-

EX.P1:Report-Nil-

EX.P.2:Agreement (Pramana Patram – Affidavit)

EX.P.3:Crime Details Form

EX.P.4:First Information Report

MATERIAL OBJECTS MARKED

-NIL-

Judicial Magistrate of First Class,

Sathupalli.

JMFC, Sathupally.

IN THE COURT OF THE SENIOR CIVIL JUDGE AT SATHUPALLY

Dated this the 6th day of August, 2021.

Present: Sri.G.Srinivas, FAC Senior Civil Judge, Sathupally.

O.S.No. 378 OF 2015

Between: Andhra Bank (A Government of India Undertaking) incorporated under the Banking Companies (Acquisition and Transfer of Undertaking) Act,1980, carrying on business all over India, having its Head Office at Hyderabad, duly represented by its Branch manager, Thallada Branch at Thallada, Khammam District, V.Chanakya. ...…Plaintiff.

And

1. Kalasani Krishnaiah, S/o. Thirapataiah, Age: Adult, Occ: Agriculturist, R/o. Repallevada Village, Chandrugonda Mandal, Khammam District.

2. Janapati Narasimha Rao, S/o. Venkateswarlu, Age: Adult, Occ: Agriculturist, R/o. Chandrugonda Village, Chandrugonda Mandal, Khammam District.

3. Karun Kondapaneni, s/o.Rama Rao, Age: Adult, Occ: Agriculturist, R/o. H.No.11-42/1, Wyra Village and Mandal,

....Defendants.

This suit is coming before me for final hearing on 30.07.2021 in the presence of Sri.K.Panduranga Rao, Advocate for the Plaintiff and defendants remained ex-parte; upon perusing the material papers on record; upon hearing the arguments of learned counsel for the Plaintiff and having stood over for consideration till this day, this Court delivered the following:

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

1.This is a suit filed by Andhra Bank (A Government of India

Undertaking) incorporated under the Banking Companies (Acquisition and

Transfer of Undertaking) Act,1980, carrying on business all over India, having its

Head Office at Hyderabad, duly represented by its Branch manager, Thallada

Branch at Thallada, Khammam District, V.Chanakya, for recovery of

Rs.1,36,207.66/- (as per the relief portion) with future interest at 16% per annum on the suit claim from the date of the presentation of the suit till the date of realization with costs.

2.The brief averments of the plaint are that the plaintiff bank introduced

KISAN SAMPATHI (Agricultural Produce Marketing Loans) to help the farmers to avoid distress sales of agricultural produce soon after the harvest when the price tend to be low. That defendant No.1 availed loan facility under the KISAN

SAMPATHI scheme by hypothecating Red Chillies and executed necessary documents in favour of the Bank on 19.05.2011 for Rs.1,84,000/- and agreed to repay the same with interest @ 10% per annum and also agreed to repay the said amount in yearly installments commencing from 18/19-05-2012. Defendant

Nos.2 and 3 are the co-obligants/ guarantors to defendant No.1. The defendants also executed demand promissory note, composite agreement in favour of the plaintiff bank for the consideration received. Defendants 1 to 3 jointly and severally agreed and liable to pay the amount to the plaintiff bank. Defendant

No.1 was irregular in payment of installments as agreed by him. Inspite of several demands, the defendants used to avoid to pay the due amount to the plaintiff bank on one pretext or the other. The plaintiff bank informed the defendants to pay the due amount or else the hypothecated stocks will be sold away in auction, by way of publication in daily newspaper EENADU on 28.04.2012, by way of public notice. The defendants did not pay the due amounts inspite of several oral demands and written notices issued by the bank officials. It is mentioned that plaintiff bank issued notices to the defendants and they were served/not served. That the plaintiff bank sold the hypothecated stock in auction after informing the defendants. After deducting all the reasonable expenses, the amount realized in the auction was credited to the loan account of defendant No.1. There is no hope of recovery of the amount due from the defendants without the help of this Court. The suit claim is Rs.1,36,207.66/-.

Cause of action arose on 19.05.2011 at Thallada, when defendant No.1 availed loan facility and on 19.05.2011 when the defendant Nos.1 to 3 applied for loan by way of executing loan application form, composite agreement and other documents. The period of limitation is three years from the date of loan availment/execution of documents and the suit is filed within limitation.

3.Summons were served on Defendant Nos.1 to 3. Defendant No.3 remained ex-parte. Since written statements of Defendants 1 and 2 were not filed, defendants No.1 and 2 were set ex-parte.

4.On behalf of the Plaintiff, P.W.1 is examined and Exs.A1 to A7 are marked.

5.Heard the learned counsel for the plaintiff.

6.The point that arises for consideration is as to whether the suit can be decreed as prayed for?

POINT:

7.The evidence of one Banoth Shyam singh, who is examined as

P.W.1 and who is the Branch Manager of the plaintiff bank, is that he is the authorized person to represent the plaintiff bank. It is to be mentioned that no any document is exhibited to show that P.W.1 is authorized to represent the plaintiff bank and he is authorized to give evidence on behalf of the plaintiff bank.

The case record does not show that the representative of the bank who filed the suit is authorized to file the suit. The suit is filed by one V.Chanakya, the Branch

Manager of Andhra Bank at Thallada Branch, but not Banoth Shyam Singh i.e.,

P.W.1. Rule 32 of the T.S.Civil Rules of Practice and Circular Orders, 1980 stipulate that in case a party appears through an agent, such agent shall file into

Court the power of attorney or written authority, thereunto authorising him together with affidavit that the said authority is still subsisting, and in case of an agent carrying on a trade or business on behalf of a party, without a written authority, an affidavit stating the residence of his principal, the trade of business carried on by the agent on his behalf and the connection of the same with the subject matter of the suit and that no other agent is expressly authorised to make or to do appearance, application or act. It is to be mentioned that though the defect of non-filing petition under the said Rule is a curable defect, no steps are taken by the plaintiff in that regard. Therefore, the evidence of P.W.1 is not at all considerable.

8.According to the evidence of P.W.1, on 19.05.2011, defendant No.1 availed loan facility under KISSAN SAMPATHI scheme, vide loan Account

No.109830100025741 by pledging the warehouse receipt for the stocks of red chillies stored in the cold storage i.e., Boinapalli Cold Storage Unit, Annarugudem village, Thallada Mandal, Khammam District. He also deposed that defendants 1 and 2 executed all necessary documents in favour of the plaintiff bank. He also deposed that defendants agreed to pay the interest @9.5% per annum and jointly executed a promissory note. According to P.W.1, defendant No.1 is the

principal debtor and defendant No.2 is the co-obligator/guarantor and they are

jointly and severally liable to pay the loan amount. Ex.A1 is the loan application,

Ex.A2 is the letter of sanction, Ex.A3 is the demand pronote, Ex.A4 is the composite agreement, Ex.A5 is the cold storage receipt. A perusal of Exs.A1 to

A5 clearly show that defendant No.1 availed the loan and that defendant Nos.2 and 3 stood as guarantors.

9.The further evidence of P.W.1 is that defendant No.1 committed default in paying the regular installments and inspite of the oral demands, the defendants had not chosen to keep the loan account regular and avoided the payment. He also deposes that the plaintiff got issued a demand notice informing defendant No.1 to redeem the stocks pledged by him by repaying the dues with interest and other charges to the bank, lest the bank would sell the stocks in public auction to the highest bidder. He also deposes that the bank issued public demand notice. According to P.W.1, the defendants are still due an amount of Rs.1,36,207/- as on 08.02.2014. He also deposes that finally a registered notice of demand, dated 03.02.2014, is issued demanding to clear off the debt due to the Bank. Ex.A6 is the demand notice.

10.It is to be mentioned that a perusal of Ex.A5 shows the value of the stock i.e., Red Chillies stored in Boinapalli Cold Storage Unit is Rs.2,94,400/-.

However, the loan availed by defendant No.1 is only Rs.1,84,000/-. Though the evidence of P.W.1 refers to that issuance demand notice informing defendant

No.1 to redeem the stocks pledged by him by repaying the dues with interest and other charges to the bank, if not the bank would sell the stocks in public auction, the evidence of P.W.1 is silent as to whether the stocks under Ex.A5 were auctioned and the sale proceedings were received from such auction. It is only deposed by P.W.1 that the defendants are still due an amount of Rs.1,36,207/- as on 08.02.2014. Ex.A6 reflects that as on 27.12.2013, an amount of “Rs.1,36,207.66/-” was due apart from interest and other charges. It is also to be mentioned that it is not deposed by P.W.1 that Ex.A6 was served on the defendant. No postal receipt is filed. No postal acknowledgment card is exhibited.

11.Ex.A7 is the statement of loan account, dated 08.02.2014.

According to the learned counsel for the plaintiff basing on Ex.A7, the case of the plaintiff is to be decreed. As per Section 4 of the Bankers Books Evidence Act, 1891, a certified copy of any entry in a banker’s books shall in all legal proceedings be received as prima facie evidence of the existence of such entry, and shall be admitted as evidence of the matters, transactions and accounts therein recorded in every case where, and to the same extent as, the original entry itself is now by law admissible, but not further or otherwise. It is to be mentioned that there is no mention in Ex.A7 that it is a certified copy. At the bottom of the statement under Ex.A7, there is a mention that “unless the constituent notifies the bank immediately of any discrepancy found by him in this statement of account, it will be taken that he has found the account correct”. If these lines are considered, it does not lay accuracy of the statement.

Furthermore, Section 2 (8) of the said Act defines certified copy. “Certified copy” means a copy of any entry in such books together with a certificate written at the foot of such copy that it is a true copy of such entry, that such entry is contained in one of the ordinary books of the bank and was made in the usual and ordinary course of business and that such book is still in the custody of the bank, and where the copy was obtained by a mechanical or other process which in itself ensured the accuracy of the copy, a further certificate to that effect, but where the book from which such copy was prepared has been destroyed in the usual course of the bank's business after the date on which the copy had been so prepared, a further certificate to that effect, each such certificate being dated and subscribed by the principal accountant or manager of the bank with his name and official title. Since there is no such certification on Ex.A7, Ex.A7 cannot be admitted and it cannot be held to be proved, more particularly by the witness who is not an authorised agent. It is also to be mentioned that as per the averments of the plaint and evidence of P.W.1, there is no mention as to the demand for repayment of the said amount and refusal by the defendants. In the cause of action para, the dates on which defendant No.1 availed loan and executed documents i.e., 19.05.2011 is only mentioned. It is specifically mentioned that the cause of action arose at Thallada, when and where the defendant agreed by the terms and conditions of the bank and executed necessary documents in favour of the bank. It is to be mentioned that there is no default clause in the cause of action para, as to cause of action. Therefore, when there is no demand and default by the defendants and when the stocks are available with the bank for accounting repayment of the loan amount, the suit is not maintainable. As already mentioned above, the evidence of P.W.1 is not considerable. If the evidence of P.W.1 is excluded from consideration, there would be no material on record in respect of the claim of the plaintiff. Therefore, the suit is liable to be dismissed. Accordingly, the point is answered.

12.In the result, the suit is dismissed. No costs

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in the open Court on this the 6 th day of August, 2021.

FAC SENIOR CIVIL JUDGE

SATHUPALLY.

- APPENDIX OF EVIDENCE-

Witnesses Examined for

For Plaintiff: P.W.1 : Banoth Shyam Singh

For Defendant: -NIL-

Exhibits marked for

For Plaintiff: Ex.A1: Application for loan dated 19.05.2011 Ex.A2: Letter of sanction dated 19.05.2011 Ex.A3: Demand pronote dated 19.05.2011 Ex.A4: Composite agreement dated 19.05.2011 Ex.A5: Cold Storage receipt dated 17.05.2011 Ex.A6: Demand notice dated 03.02.2014 Ex.A7: Statement of loan account dated 08.02.2014

For Defendant: -NIL-

FAC SENIOR CIVIL JUDGE,

SATHUPALLY.

O.S.NO.114/2013

PSCJ, Khammam

Date:18.8.2022

Page No. 1 of 11

IN THE COURT OF PRINCIPAL SENIOR CIVIL JUDGE AT

KHAMMAM

Dated this the 18th day of August, 2022

Present :- Sri G.Srinivas,

Principal Senior Civil Judge,

Khammam

O.S.No.114/2013

Between:-

1. Shaik Mastan Bee, W/o.Nagul Meera, Age:45 years, Occu:Household, R/o.Lenin Nagar, Khammam.

2. Shaik Nagul Bee, W/o.Ibrahim, Age:40 years, Occu:Household, R/o.Lenin Nagar, Khammam.

3. Shaik Ameena, W/o.Nagul Meera, Age:35 years, Occu:Household, R/o.Lenin Nagar, Khammam.

4. Shaik Meera, W/o.Shaik Mastan, Age:28 years, Occu:Household, R/o.Lenin Nagar, Khammam. .…Plaintiffs AND

1. Shaik Mastan, S/o.Late Shaik Mohammed, Age:46 years, Occu: Business, R/o.H.No.11-1-110 and 111, Lenin Nagar, Khammam.

2. Shaik Jani, S/o.Late Shaik Mohammed, Age:38 years, Occu: Private Employee, R/o.H.No.11-1-110 and 111, Lenin Nagar, Khammam.

3. Shaik Khasim Bee, W/o.Shaik Babu, Age:50 years, Occu: Household, C/o.Shaik Jani, R/o.H.No.11-1-110 and 111, Lenin Nagar, Khammam. ….Defendants

O.S.NO.114/2013

PSCJ, Khammam

Date:18.8.2022

Page No. 2 of 11

This suit is coming before me on 11.8.2022; for final hearing in the presence of Sri R.Sudheer Singh, Advocate for the plaintiffs; Treated heard Sri R.Venkat, Advocate for Defendants No.1 and 3 and defendant No.2 is set exparte; upon perusing the material papers on record; and having stood over for consideration till this day, the court the following:

JUDGMENT

This is a suit filed by the plaintiffs with a prayer to pass preliminary decree,

a) to allot each share to plaintiffs No.1 to 4 and

Defendant No.3 and two shares each to defendants

No.1 and 2 by metes and bounds in the suit schedule property.

b) to award future mesne profits to the plaintiff.

c) to award costs of the suit.

2.The Suit Schedule Property is “House bearing Nos.11- 1-110 and 11-1-111, consisting four rooms tiled house and two rooms RCC to an extent of 200 sq.yards situated at Lenin Nagar (Sriramnagar), Khammam Town and District, within the

Municipality, Khammam, within the following boundaries :

East : House of Moulali

West: House of Hazrath Ali

North: House of Moulali

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Date:18.8.2022

Page No. 3 of 11

South: House of Mohammed

3.The brief averments of the plaint are that plaintiffs

No.1 to 4 and defendant No.3 are the sisters and defendants

No.1 and 2 are the brothers, who are daughters and sons of

Late Shaik Mohammed; That mother of the plaintiffs and defendants died about three years back and father of the plaintiffs and defendants is predeceased her: That during the lifetime of father and mother of the plaintiffs, the plaintiffs and defendants were residing in the suit schedule property; After the marriage of the plaintiffs, they are living separately.

Defendants No.1 and 2 are the male members in the plaintiffs’ family and they are maintaining the suit schedule property and used to pay nominal mesne profits. That the suit schedule property is the ancestral property of the father of the plaintiffs and the defendants. On 20.11.2011 the plaintiffs demanded for partition of the suit schedule property, but defendants No.1 and 2 evaded the same and dragged the matter on different pretexts. The plaintiffs again demanded for partition of the suit

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Date:18.8.2022

Page No. 4 of 11 schedule property orally on 25.10.2012, but the defendants postponed the same. The suit schedule property exclusively belongs to the father of the plaintiffs and defendants. The plaintiffs and defendants are the legal heirs and successors of

Late Shaik Mohammed. That as per the Mohammedan Law, plaintiffs No.1 to 4 and defendant No.3 are entitled to one share each and defendants No.1 and 2 are entitled to two shares each out of nine shares in the suit schedule property.

That the plaintiffs and defendants No.1 to 3 belong to Sunni

Sect; The cause of action arose on 20.11.2011 and on 25.10.2012. This Court got pecuniary and territorial jurisdiction to entertain the suit. The suit is filed within limitation. Since the suit schedule property is in constructive possession, fixed court fee is Rs.200/- is paid under Section 34(2) of A.P. Court Fee Suits Valuation Act. Hence, the suit.

4.Initially defendants No.1 to 3 were set exparte.

However, on a petition, the exparte order against defendants

No.1 and 3 was set aside. Defendants No.1 and 3 filed written

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Date:18.8.2022

Page No. 5 of 11 statement admitting the relationship between the parties and denying the plaint allegations such as payment of nominal mesne profits, demand for partition of the suit schedule property on 20.11.2011 and also 25.10.2012 and postponement of the matter by the defendants. It is mentioned that plaintiffs and defendant No.3 who are the daughters of the parents of the plaintiffs are allotted with sufficient amounts towards dowry and other requirements at the time of their respective marriages and since then defendants No.1 and 2 and their parents are continuing in peaceful possession and enjoyment of the suit schedule property. That after demise of parents of plaintiffs and defendants, defendants No.1 and 2 are in peaceful possession and enjoyment of the suit schedule property and they are enjoying the same without there being any interruption from any corner. The plaintiffs ought to have raised their demand during the lifetime of their parents, but they failed to do so. Since the plaintiffs are already paid with sufficient amounts by their parents and also provided other articles, as such they are not entitled for the demand of

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Date:18.8.2022

Page No. 6 of 11 partition over the suit schedule property. It is prayed to dismiss the suit with costs.

5.Basing on the pleadings, the following issues were settled for trial.

1. Whether the plaintiffs are entitled for preliminary decree for a partition of the suit schedule property?

2. Whether plaintiffs are entitled for mesne profits as prayed for ?

3. If so, to what relief?

6.On behalf of the plaintiffs, P.Ws.1 and 2 are examined and Exs.A.1 to A.3 are marked.

7.Inspite of posting the suit conditionally for the evidence of defendants, there was no representation on behalf of the defendants and as such, the evidence of defendants is closed.

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Date:18.8.2022

Page No. 7 of 11

8.Heard the learned counsel for the plaintiffs. Treated heard the learned counsel for defendants No.1 and 3, as there was no representation.

Issue No.1 to 3 :

9.The evidence of P.W.1 and P.W.2 is that

Sk.Mohammad is their father and their mother died about 7 years back. According to the evidence of P.Ws.1 and 2, the plaintiffs and defendants are sisters and brothers. It is also the evidence of P.W.1 that after her marriage, herself and her sisters are residing separately and her brothers are maintaining the suit schedule property about for six years, that on 20.11.2012, herself and plaintiffs No.1 and 3 demanded for partition of the suit schedule property, but defendants No.1 and 2 evaded the same and dragged the same on different pretext. She also deposes that she and other plaintiffs demand for partition of the suit schedule property, but all their efforts are in vain and the defendants did not come for partition or for payment of mesne profits for six years. She also deposes that the suit schedule

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Date:18.8.2022

Page No. 8 of 11 property is exclusively belongs to their father and that herself and her sisters and brothers are legal heirs of her father Late

Shaik Mohammod and that they are entitled to one share each and defendants No.1 and 2 are entitled to two shares each. The evidence of P.W.2 also corroborates the evidence of P.W.1.

Ex.A.1 is the property tax demand notice issued by the

Municipality of Khammam, dated.31.10.2009, Ex.A.2 is the Tax receipt and Electricity Bill, dated.27.2.2012 and Ex.A.3 is valuation certificate issued by the Sub-Registrar, Khammam. It is evident from Exs.A.1 and A.2 are issued in the name of Shaik

Mohammad.

10. It is to be mentioned that in the cross examination of

P.Ws.1 and 2, it is sought to put up a case as to ouster of the possession of defendants No.1 and 2. It is elicited in the cross examination of defendants No.1 and 2 that they are in possession of the suit schedule property. There is no dispute in regard to the possession of defendants No.1 and 2 over the suit schedule property. It is denied by P.W.1 that she is falsely

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Date:18.8.2022

Page No. 9 of 11 deposing that they are having joint right over the suit schedule property and that they are in joint possession. According to the evidence of P.W.2, in her cross examination defendants No.1 and 2 never gave any amount to her at any point of time and

P.W.1 also deposes in the similar lines. It is to be mentioned that P.Ws.1 and 2 denied the suggestions that the plaintiffs are ousted out of the property by Defendants No.1 and 2. It is to be mentioned that for the reasons best known to the defendants, they did not choose to enter into witness box and give evidence.

As per the decision of the Hon’ble Apex Court in “Vidhyadhar vs Manikrao and another” AIR 1999 SC 1441, where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct. Therefore, the case of the defendants as to ouster of the plaintiffs from the suit schedule property is not reliable. In view of these circumstances and as the plaintiffs are sisters of defendants No.1 and 2 and as the suit schedule

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Date:18.8.2022

Page No. 10 of 11 property is that of their father Late Shaik Mohammad, the partition of the suit schedule property can be ordered.

11.It is to be mentioned that the evidence of P.Ws.1 and 2 is that defendants No.1 and 2 did not come forward to pay mesne profits. There is no question to P.Ws.1 and 2 in the cross examination as to the mesne profits. It is evident from the evidence of P.Ws.1 and 2 that defendants 1 and 2 are not in occupation of the suit schedule property. Therefore, the mesne profits can be awarded. So far as the quantum of mesne profits is concerned, it can be adjudicated in a separate petition.

Accordingly, issues No.1 and 2 are answered.

12.It is to be mentioned that as per the Muslim Personal

Law daughters are entitled for one share whereas, sons are entitled for two shares and as such, accordingly, the shares can be allotted.

13.In the result, the suit is decreed passing preliminary decree and allotting one share each to plaintiffs 1 to 4 and

Defendant No.3 and two shares each to defendants No. 1 and 2

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Date:18.8.2022

Page No. 11 of 11 in the suit schedule property and awarding mesne profits that would be quantified in a separate petition. No costs.

Dictated to the Stenographer Gr.III, corrected and

pronounced by me in the open Court on this the 18th day of

August, 2022.

PRINCIPAL SENIOR CIVIL JUDGE,

KHAMMAM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiffs:- For Defendants:

PW.1: Shaik Nagul Bee - PW.2: Shaik Meera

EXHIBITS MARKED

For Plaintiff:-

Ex.A.1 : Property demand notice issued by the Municipality of

Khammam, dated.31.10.2009

Ex.A.2 : Tax receipt and Electricity Bill, dated.27.2.2012

Ex.A.3 : The valuation certificate issued by the Sub-Registrar,

Khammam.

For Defendants:- -

PRINCIPAL SENIOR CIVIL JUDGE,

KHAMMAM.

1/7 O.S.No.111/2018

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE AT

SATHUPALLY

Dated this the 06 th day of March, 2019

Present :- Sri G. Srinivas, Prl. Junior Civil Judge, Sathupally

O.S.No.111/2018

Between:

1.Rayala Krishnaveni, W/o. Rayala Jagadeesh Babu @ Jagadeesh,

Age: 32 years, Occ: Housewife,

2.Rayala Karthika, D/o. Rayala Jagadeesh Babu @ Jagadeesh, Age: 8 years, Minor, Rep. By her Mother and Guardian, the plaintiff No.1 herein, student

3.Rayala Krishnaiah, S/o. Kunaiah, Age: 62 years, Occ: Nil,

4.Rayala Manikyam, W/o. Krishnaiah, Age: 54 years, Occ:

Household

All are R/o. Jalagam Nagar, Sathupalli, Khammam District.

…........Plaintiffs

And

The District Superintendent of Police, Khammam, Khammam

District.

.........Defendant

This suit is coming up before me on 01.02.2019 for final hearing in the presence of Smt.A.Parvathi, Advocate for the Plaintiffs and defendant was Set-exparte; upon perusing the material on record and after hearing the arguments, this Court delivered the following:-

J U D G M E N T

1.This is a suit filed by the plaintiffs 1 to 4 with a prayer to declare that husband of plaintiff No.1, father of plaintiff No.2 and son of plaintiffs 3 and 4 namely Rayala Jagadeesh Babu @ Jagadeesh, Special

Party Police Constable bearing P.C.No.590 at O.S.D Office, Kothagudem, is deemed “death” (sic died) and to award costs of the suit.

2/7 O.S.No.111/2018

2.The averments of the plaint, in brief, are that Rayala Jagadeesh

Babu @ Jagadeesh, S/o. Krishnaiah was the husband of Plaintiff No.1, father of plaintiff No.2 and son of plaintiffs 3 and 4 and he was working as Special Party Police Constable bearing P.C.No.590 at O.S.D Office

Kothagudem; that he left from the house on 30.07.2010 at 10.00 hours from Jalagam Nagar, Sathupalli to bring milk. That thereafter, the said

Rayala Jagadesh babu @ Jagadeesh was found missing. The plaintiffs and their relatives made all possible efforts about his whereabouts, but they could not trace him. At last, plaintiff No.3 lodged a report with P.S

Sathupally on 02.08.2010, but in-spite of their best efforts, he could not be traced out. Police also registered a case in Crime No.144/2010,

dt:02.08.2010 under Man-Missing. Police issued certificate,

dt:27.02.2018 and the case was referred as undetected. That if any

person misplaced and his whereabouts were not known/found for a period of 7 years, he shall be treated/deemed to be dead, as per law.

That the plaintiffs filed application before the Commissioner, Nagara

Panchayath, Sathupalli on 03.03.2018, requesting the authorities to issue death certificate of the said Rayala Jagadeesh babu @ Jagadeesh.

That they advised the plaintiffs to submit a declaratory decree to issue the said certificate. Hence, the suit for declaratory decree. That the cause of action arose on and from 30.07.2010. The said Rayala

Jagadeesh Babu @ Jagadeesh, lastly worked at O.S.D Office,

Kothagudem which is Non-Agency Area, within the territorial jurisdiction of this court. As such, this court is having jurisdiction to entertain the suit. The plaintiffs estimated the relief notionally at Rs.10,000/-, and court fee of Rs.786/- is paid under Section 24(d) of A.P.C.F and S.V Act as no monetary benefits is claimed except to declare that plaintiff No.1 is legally wedded wife, plaintiff No.2 is daughter and plaintiffs 3 and 4 are parents of Rayala Jagadeesh Babu @ Jagadeesh. The plaintiffs and 3/7 O.S.No.111/2018 defendant are not tribes and the cause of action arose within the jurisdiction of this court.

3.Summons were issued against the defendant, who was served and he was called absent and as such, he was set-exparte.

4.On behalf of the plaintiff, P.W.1 is examined and Exs.A.1 to A.5 are marked.

5.Heard the learned counsel for the plaintiff.

6.The point that arises for consideration is as to whether the plaintiffs are entitled for the declaratory relief as prayed for in regard to declaring deemed death of Rayala Jagadeesh Babu @ Jagadeesh as prayed for.

POINT:

7.The evidence of P.W.1 is that her husband i.e., Rayala Jagadeesh

Babu @ Jagadeesh, Special Party Police Constable bearing P.C.No.590 at

O.S.D Office, Kothagudem, left from the house on 30.07.2010 at 10.00 am from Jalagam Nagar, Sathupalli to bring milk and he was found missing. She also deposes that the plaintiffs and their relatives made all possible efforts but they could not trace him. The further evidence of P.W.1 is that plaintiff No.3 lodged a report with P.S Sathupally on 02.08.2010, but in-spite of their best efforts, he could not be traced out. The police registered a case in Crime No.144/2010, dt:02.08.2010 under Man Missing. Police issued certificate, dt:27.02.2018 and the case was referred as undetected. P.W.1 also deposes that the plaintiffs filed application before the Commissioner, Nagara Panchayath,

Sathupalli on 03.03.2018, requesting the authorities to issue death certificate of Rayala Jagadeesh babu @ Jagadeesh, but they advised the plaintiffs to submit declaratory decree. Ex.A.1 is the certificate, Ex.A.2 4/7 O.S.No.111/2018 is the intimation letter, Ex.A.3 is the Service Certificate, Ex.A.4 is the

Marriage Photograph and Ex.A.5 is the Wedding Card.

8.This is a suit filed for declaration of death of Rayala Jagadeesh babu @ Jagadeesh. Learned counsel for the plaintiffs relied on a decision reported in N.JAYALAKSHMI AMMAL Vs. R.GOPALA

PATHAR: AIR 1995 SC 995, wherein it was observed, “ If a person is not heard of for seven years there is a presumption of the fact of death at the expiration of seven years, but the exact time of death is not a matter of presumption but of evidence and the onus of proving that death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential. That there is no presumption that death took place at the close of seven years." It is also observed that the presumption under

Section 108 of Indian Evidence Act is as to the fact of death at the time the question was raised and not at any particular antecedent time.

9.Learned Counsel also relied on a decision reported in SAROOP

SINGH Vs. BANTO AND OTHERS: APPEAL (CIVIL) 4426 OF 1999,

wherein the decision in LIC OF INDIA Vs. ANURADHA: (2004) 10

SCC 131, was referred to, wherein it was held that, neither Section 108 of Evidence Act nor logic, reason or sense permit a presumption or assumption being drawn or made that the person not heard of for seven years was dead on the date of his disappearance or soon after the date and time on which he was last seen. The only inference permissible to be drawn and based on the presumption is that the man was dead at the time when the question arose subject to a period of seven years absence and being unheard of having elapsed before that time.

10.Ex.A.1 is a certificate issued by the Inspector of Police P.S 5/7 O.S.No.111/2018

Sathupally and it shows that on 02.08.2010 at 04.30 pm a case in

Cr.No.144/2010 under the head of Man Missing was registered on the complaint that Rayala Jagadeesh babu @ Jagadeesh, who left from house on 30.07.2010 at 10.00 am and did not return and that the case was referred as undetected on 09.07.2011. Ex.A.2 is the letter addressed to P.W.1 requiring certification from the court in regard to declaration of death. Now it is to be considered as to whether basing on the oral evidence of P.W.1 and Exs.A.1 and A.2, the suit can be decreed declaring death of Rayala Jagadeesh babu @ Jagadeesh. It is to be mentioned that a suit for declaration has to be filed invoking the provisions of Specific Relief Act. Section 34 of the Specific Relief Act reads as under:

“Discretion of court as to declaration of status or right. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

“ Explanation.—A trustee of property is a “person interested to deny” a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee.” 6/7 O.S.No.111/2018

11.Section 35 of the Specific Relief Act makes it evident that the decree for declaration binds on the parties to the suit only. It is to be mentioned that the defendant arrayed in the suit is the District

Superintendent of Police, Khammam District. However, it is not the evidence of P.W.1 and it is not the averments in the plaint that the defendant raised any dispute and denied or interested to deny as to the legal character of the plaintiff or to any right as to any property. It is also to be mentioned that the plaintiffs did not choose to make the

Commissioner Nagara Panchayath, Sathupally as a party to the suit as it is the evidence of P.W.1 that the said authority advised the plaintiffs to obtain decree from the court. In V. HANYA NAIK AND OTHERS

Vs. M.KRISHNA REDDY AND OTHERS: 2009 (6) ALT 221, the

Hon’ble High Court held that no court shall grant mere relief of

declaration if the plaintiff being in a position to claim other ancillary relief, and did not pray for it. It is to be mentioned that during the course of argument, learned counsel for the plaintiffs submitted that the plaintiffs would get benefits from the employer of Rayala Jagadeesh babu @ Jagadeesh, on account of his deemed death. The ancillary reliefs are not claimed. Even as per the evidence of P.W.1 there is no denial in regard to status of the plaintiffs by the defendant. It is to be mentioned that the suit is not properly framed. In view of the above circumstances, the suit deserves to be dismissed.

12.In the result, the suit is dismisses. No costs.

Dictated to the Stenographer Grade-III, transcribed by him,

corrected and pronounced by me in the open Court on this the 06th day of March, 2019.

PRL. JUNIOR CIVIL JUDGE,

SATHUPALLI.

7/7 O.S.No.111/2018

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff:- For Defendant:-

P.W.1: Rayala Krishnaveni -NIL-

EXHIBITS MARKED

For Plaintiff:- For Defendant:-

Ex.A.1: Certificate, dt: 27.02.2018-NIL-

Ex.A.2: Intimation Letter, dt:22.03.2018

Ex.A.3: Service Certificate, dt:06.07.2018

Ex.A.4: Marriage Photograph

Ex.A.5: Wedding Card.

PRL. JUNIOR CIVIL JUDGE,

SATHUPALLI.