Smt. Golla Sridevi

AS No.135/2016 Dt.15.06.2020

IN THE COURT OF III ADDITIONAL DISTRICT JUDGE, NELLORE.

Monday, this the 15th day of June, 2020.

Present: Smt.G.Sridevi, III Additional District Judge,

NELLORE.

***

Appeal Suit No.135/2016

Between:

1. Manam Sreenivasulu, Son of Venkata Narasaiah, Hindu, aged about 70 years, Residing at Plot No.568, Police colony, Podalakur Road, Nellore Town.

2. The Nellore District Policemen Co-operative House Building Society, Rep. by its President, Sri Gangadhar Son of Ramamurthy, Hindu, aged about 54 years, Working as S.I. of Police, Manubolu Police Station,

Nellore District. ...Appellants

And

Menta Girish Kumar, Son of Sreenivasulu, Hindu, aged about 39 years, Resident of Vedayapalem, Nellore city, SPSR Nellore District.…Respondent

Appeal filed against Judgment and decree dt.06.04.2016 in

O.S.No.423/2013 on the file of Principal Junior Civil Judge, Nellore.

IN

O.S.No.423/2013

Between: Menta Girish Kumar…Plaintiff

And

1.Manam Sreenivasulu,

2. The Nellore District Policemen Co-operative House Building Society, Rep. by its President, Sri Gangadhar.…Defendants

AS No.135/2016 Dt.15.06.2020

2

This Appeal Suit is coming on 03.06.2020 for final hearing before this Court in the presence of Sri P.Sreenivasa Rao, Advocate for Appellants/Defendants and of Sri N.Rupa Kumar, Advocate for Respondent/Plaintiff and having stood over for consideration to this day, this Court delivered the following:-

JUDGMENT

The defendants in O.S.No.423/2013 on the file of Principal

Junior Civil Judge, Nellore preferred this appeal challenging the impugned decree and judgment dated 6th April, 2016.

The appellants were the defendants, the respondent was the plaintiff before the trial court and they will hereinafter be referred as plaintiff and defendants as arrayed before the trial court for convenience.

2.The plaintiff filed suit for permanent injunction restraining the defendants from interfering with plaintiff's possession and enjoyment of the suit schedule mentioned property, alleging that originally the plaint schedule property belonged to one Hasina Begum and he purchased it from her under a registered sale deed dated 04.02.2014. Since then, he has been in possession and enjoyment of it.

The 1st defendant worked as Sub Inspector of Police. He purchased plot No.568 and he has been residing in the said plot. He has manpower in his mother department and he took help of the 2nd defendant who is the President of the police colony society. He is one of the leaders of the police welfare association and he is working as Sub Inspector of Police in Kovur police station. The plaintiff has a little extent of house site. The defendants having power and support of their department have been trying to disturb the plaintiff's possession. On 19.11.2013 the plaintiff tried to construct a compound wall and also a shop room in the suit schedule mentioned property. He engaged men to commence the work. At that time, the 1st defendant interfered with the plaintiff's possession of the suit property and the President of the 2nd defendant also threatened the plaintiff to stop the work. Therefore, unable to resist the defendants, the plaintiff filed this suit.

AS No.135/2016 Dt.15.06.2020

3

3.The defendants 1 and 2 jointly filed their written statement denying the averments of the plaint and admitting that the 1st defendant worked as Sub Inspector of Police, that he purchased plot No.568 and has been residing in the said plot. It is also admitted that the President of the 2nd defendant society is working as Sub Inspector of Police in Kovur police station of Nellore district. However, they have denied the other averments of the plaint. The contentions in the written statement, in brief, are as follows. The defendants have no knowledge about plaintiff's purchase of the suit property from one Hasina Begum under a registered sale deed

dated 4.2.2004. Originally, the site in survey Nos.2150, 2151, 2154, 2155,

2156, 2157, 2150 and 2140, 2147, 2148, 2162, 2161, 2160, 2159 of

Nellore Bit-I belongs to the Government. It was allotted to the police personnel (Nellore district police employees aided cooperative house building society, Electricity board, ZP teachers). The government allotted an extent of Ac.46.14 cents. It was divided into house plots 1 to 605. 1st defendant purchased plot No.568 on 25.10.1984 under a registered sale deed from the said society. Since then, he has been in possession and enjoyment of it. Sale deed is only fabricated. In the registered sale deed of the 1st defendant, the northern boundary is shown as Podalakur road along with the site in survey No.2154. If at all, the version of the plaintiff is correct, the northern boundary in the sale deed of the 1st defendant must have been shown as plot No.607. The plaintiff's are of title of vendor's vendor by name

Medaramitta Venkaiah is not mentioned in the sale deed of plaintiff. If the property is in the police colony, the property should belong to police association. The association alone got right to sell it. Without the sale deed from the association, no one can get right and title over the property. The association has not sold it to Medaramitta Venkaiah at any point of time.

The plaintiff never contended that the property was purchased by his vendor's vendor from the police association. Moreover, the property described in the suit schedule was not merged in the municipality in the year 1992. It is clear that the sale deed dated 17.09.1992 is fabricated.

Based on that document, the plaintiff cannot get right over it. The plaintiff's

AS No.135/2016 Dt.15.06.2020

4 vendor and her vendor colluded together and fabricated the sale deed

dated 17.09.1992. Consequently, the plaintiff also will not get a better title.

Hence, the sale deeds filed by the plaintiff cannot be taken into consideration and they are not binding on the defendants.

4.When the plaintiff trespassed into the site situated in survey

No.2154 of police colony, the second defendant filed a criminal case against the plaintiff and it was registered as a case in crime No.458 of 2013

dated 21.11.2013 for the offences punishable under Sections 447, 431, 506

r/w 34 IPC of Nellore rural police station and the same is pending. The plaintiff did not file any documentary proof to show that the title of his predecessors. He is an encroacher and not a law abiding citizen. He has no right, title or possession over the suit property. The plaintiff mentioned the door number of the suit property as 2163.

5.When the plaintiff has shown plot No.607 in the suit schedule and he claimed to have purchased it under the registered sale deed dated 4.2.2004. As per the lay-out plan of the police association, the site was divided into 605 plots. Plot No.607 is not in existence in the lay-out. The suit property is vacant site, the question of allotting door number does not arise. It clearly shows that the plaintiff has not come to the court with clean hands. He tried to mislead the court by placing false and fabricated documents. He has no prima facie case, that balance of convenience is not in his favour and therefore, he is not entitled to the relief of injunction. Thus, the suit is liable to be dismissed with exemplary costs.

6.Basing on the above pleadings, the trial court framed the following issues:

1. Whether the plaintiff is in possession and enjoyment of

the suit property as on the date of filing the suit?

2. Whether the plaintiff is entitled to the relief of permanent injunction, as prayed for?

AS No.135/2016 Dt.15.06.2020

5

7.During the course of trial, on behalf of plaintiff, plaintiff himself was examined as PW.1 and marked Exs.A.1 and A.2. On behalf of defendants, DW 1 was examined and marked no documents.

8.Upon hearing arguments of both the counsel, considering oral and documentary evidence, the trial court decreed the suit having found that the plaintiff succeeded to prove his possession and enjoyment over the schedule property.

9.Aggrieved by the impugned decree and judgment of the suit, the defendants preferred this appeal on various grounds. The main contentions raised in the grounds of appeal are that:

Grounds of Appeal:

1. The judgment and decree of the lower court is against the Law, weight of evidence and probabilities of the case.

2. The lower court's observations, reasoning's and inferences in deciding the case is devoid of merits and is based on mere surmises and conjectures.

3. The lower court miserably failed to consider the legal aspect raised by the appellants

4. The lower court miserably failed to consider that P.W.1 categorically admitted in his cross examination that the schedule property is not part and parcel of Police Colony.

5. The lower court miserably failed to consider that P.W.1 categorically admitted in his cross examination that the 2nd defendant's association never sold the property either to the respondent/plaintiff or his vendor or his vendor's vendor.

6. The lower court miserably failed to consider that admitted facts need not be proved by evidence. The respondent/plaintiff admitted that the site was allotted to police men association.

AS No.135/2016 Dt.15.06.2020

6

7. The lower court failed to consider that the pw 1 admitted that any of the society authorities have not registered the plaint schedule property to Medarametla Venkaiah. When Medarametla

Venkaiah has no right and title over the property, the respondent/plaintiff has no right and title over the same, as no one can transfer better title than he had.

8. The lower court with a pre conceived and bias mind by taking into consideration of the respondents contentions only on in one way allowed the suit.

9. The lower court miserably failed to consider that the respondent /plaintiff have to prove his case on his own legs but not on the weakness of the appellant’s case.

10. The lower court miserably failed to consider the evidence of the appellants and finally prayed to allow the appeal.

10.Considering the rival contentions and perusing the material papers available on record including oral and documentary evidence, the sole point that arises for consideration is:

Whether the plaintiff is in possession and enjoyment of the schedule property as on the date of filing the suit, and whether the defendants infringed or invaded the legal obligation or right of the plaintiff making any attempt to interfere with the possession and enjoyment of the property? If so, is the plaintiff/appellant entitled to a decree restraining the defendants/respondents from interfering with peaceful possession and enjoyment of the schedule property by the plaintiff/appellant?

AS No.135/2016 Dt.15.06.2020

7

POINT:

11.This suit is filed for bare injunction. While deciding such suit, it is the duty of the court to record its finding only with regard to lawful possession and enjoyment of the property as on the date of filing suit and infringement or invasion of legal right of the plaintiff’s. But the title cannot be looked into except for limited purpose of deciding lawful possession. In the instant case on hand, the plaintiff allegedly purchased the property under Exs.A1 and A2 from one Hasina Begum under a registered sale deed dated 04.02.2014 Ex.A1 and said Hasina Begum purchased from her vendor under Ex.A2. Since then, the plaintiff has been in possession and enjoyment of it.

12.In a suit for injunction simplicitor, the court cannot go into title of the parties to the suit, but for limited purpose, the title of the parties can be looked into or it can be gone into incidentally, however, no finding need be recorded regarding the title of the parties in a suit for injunction simplicitor.

The Hon’ble High Court of Andhra Pradesh in a decision reported in 2008 (1) 430 [Alla Seshukumar and another Vs. Alla Radha Krishna], His

Lordship Justice Dr.G. Yethirajulu held that:

“In a suit for injunction simplicitor complicated questions of title not to be gone into. The person not having title but being in settled possession of property on the date of suit is entitled to injunction even against true owner.”

13.His Lordship relied on several decisions reported in AIR 1972 SC 2299 [M.K.Setty Vs. M.V.L.Rao]; AIR 1980 Kerala 224 [Karthiyayani

Amma Vs. Kumaresan]; and AIR 2004 SCW 4205 = 2004(2) ALT 24.1 (DN SC) [Rama Gowda Vs. M.Varadappa Naidu]. In all the above decisions, the Hon’ble Apex Court and Kerala High Court were of the view that, the plaintiff can on the strength of his possession resist interference from persons who have no better title than himself to the suit

AS No.135/2016 Dt.15.06.2020

8 property. So, from this principle, it is abundantly clear that, in a suit for injunction simplicitor, the court need not go into complicated questions of title and the persons having better title than others, who is in settled possession, entitled to claim injunction.

14.In another decision reported in 2008 (3) ALT 538 [Kaneez

Fathima and another Vs. Samru Sultana and others], His Lordship

Justice L.Narasimha Reddy held that:

“The court was under impression that, unless a plaintiff in a suit for perpetual injunction proves his title, possession even if established, cannot be recognized. This is totally opposed to the settled principles of law. Basically, the finding as to the possession, must be recorded, in a suit of this nature, and the verification of title, on the limited sense, must be undertaken, if necessity arises.”

15.In view of the principles laid down in the above decisions, in a suit for bare injunction, the court cannot decide the title to the property attaching finality and even if any issue is framed and finding is recorded, it is nothing but exercise of excessive jurisdiction and it amounts to granting higher relief.

16.In a decision reported in AIR 2008 S.C. 2033 [Anathula

Sudhakar Vs. P.Buchi Reddy (dead) by L.Rs. and others], wherein Their

Lordships Justice R.V.Raveendran and Justice P.Sathasivam in Para No.

11 held as follows:The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with in- junction as a consequential relief, are well settled. We may refer to them briefly:

AS No.135/2016 Dt.15.06.2020

9

1.“Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simplicitor will lie. A person has a right to protect his possession against any per- son who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.

2.Where the title of the plaintiff is not disputed, but he is in not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simplicitor, without claiming the relief of possession.

3.Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.”

17.Their Lordships further in Para No.12 elucidate elaborately when cloud casts on the title: “We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff’s title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person’s title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff’s title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plain- tiff, believing

AS No.135/2016 Dt.15.06.2020

10 that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff’s title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration.

Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.”

18.In view of the principles laid down in the above decisions, in view of the limited scope of trial in a suit for bare injunction. The court cannot go into title of the parties to the suit, but for limited purpose, the title of the parties can be looked into or it can be gone into incidentally, however, no finding need be recorded regarding the title of the parties in a suit for injunction simplicitor.

19.When the plaintiff filed a suit for bare injunction claiming that he is in lawful possession and enjoyment of the property, it is for him to prove that he is in lawful possession and enjoyment of the same .Therefore, it is incumbent upon the plaintiff to establish that he is in lawful possession and enjoyment of the property. In a suit for bare injunction, title of the parties cannot be gone into except for deciding the lawful possession and title of the plaintiff or it can be gone into incidentally.

20.The plaintiff claimed permanent injunction restraining the defendants from ever interfering with his peaceful possession and enjoyment of the schedule property claiming that he is in possession and enjoyment of the same since the date of Ex.A.1. Undoubtedly, he asserted his title basing on Exs.A.1 and A.2.

AS No.135/2016 Dt.15.06.2020

11

21.However, in a suit for bare injunction, lawful possession as on the date of filing suit is the prime consideration. To decide lawful possession, title is to be gone into incidentally or with limited purpose.

22.Admittedly, the suit property is vacant site. The defendants stated in their written statement that the plaintiff trespassed into the site situated in survey No.2154 of police colony, the second defendant filed a criminal case against the plaintiff and it was registered as a case in crime

No.458 of 2013 dated 21.11.2013 for the offences punishable under

Sections 447, 431, 506 r/w 34 IPC of Nellore rural police station and the same is pending and He is an encroacher.

23.On careful analysis of defendants admission that plaintiff encroached disputed schedule property and the defendants filed a criminal case against him, strengthens the case and plea of the plaintiff that he is in possession of the schedule mentioned property at the time of alleged incident of encroachment as alleged by the defendants in their written statement and he was not dispossessed by the defendants subsequent to the alleged incident. This proves that the plaintiff was in possession and enjoyment of the suit schedule property on the date of filing of the suit.

24.Mere proof of lawful possession is not sufficient to grant decree for permanent injunction and the plaintiff has to establish that the defendants made any attempt to interfere or infringe or invade the legal right or obligation in the schedule property, which gives rise to cause of action. According to the allegations made in the plaint, the defendants made an attempt to interfere with his possession and enjoyment of the property and as admitted by the second defendant filed a criminal case against the plaintiff and it was registered as a case in crime No.458 of 2013

dated 21.11.2013 for the offences punishable under Sections 447, 431, 506

r/w 34 IPC of Nellore rural police station. This admission is sufficient to show that he is in possession as on the date of filing suit and the right or

AS No.135/2016 Dt.15.06.2020

12 obligation in the schedule property of plaintiff was invaded by the defendants by resisting him from constructing on the schedule mentioned property and filed a criminal case against him. On this ground alone, the plaintiff is entitled to claim permanent injunction restraining the defendants from ever interfering with peaceful possession and enjoyment of the suit schedule property.

25.On overall consideration of the facts and circumstances and on reappraisal of entire evidence on record, this court finds no illegality in the appreciation of evidence by the trial court warranting interference of this

Court and this court finds that the findings recorded by the trial court is strictly in accordance with law laid down by the Hon’ble Apex Court.

Therefore, this court finds no ground warranting interference with the impugned decree and judgment of the trial court. Accordingly, the point is held in favour of the respondent/plaintiff and against the appellants/defendants.

In view of foregoing discussion, this court finds that the appeal is devoid of merits and deserves to be dismissed.

26. In the result, the appeal is dismissed, confirming the impugned decree and judgment passed by Principal Junior Civil Judge, Nellore in

O.S.No.423/2013 dated 06-04-2016. But, in the circumstances of the case,

without costs.

Typed, corrected and pronounced by me through Video conference call on this the 15 th day of June, 2020.

Sd/- G.Sridevi,

III ADDL. DISTRICT JUDGE,

NELLORE.

APPENDIX OF EVIDENCE

NIL

Id/- G.S.,

III A.D.J

Copy to the Prl. Junior Civil Judge, Nellore.

AS No.135/2016 Dt.15.06.2020

AS No.38/2017 1 Dt.15.06.2020

IN THE COURT OF III ADDITIONAL DISTRICT JUDGE, NELLORE.

Monday, this the 15th day of June, 2020.

Present: Smt.G.Sridevi, III Additional District Judge,

NELLORE.

***

Appeal Suit No.38/2017

Between: Gurramkonda Jayamala, W/o late Govindu, Hindu, aged about 45 years, Residing at Bethaniyapet, Bogolem village and mandal,

SPSR Nellore District....Appellant

And

1.Gali Vijayamma, W/o late Ramanaiah, Aged about 50 years.

2. Gali Venkateswarlu, S/o late Ramanaiah, Hindu, aged about 30 years.

Both are Hindus, residing at Old Harijanawada, Opp. to Indoor Stadium and Govt. School, Musunuru village, Kavali Mandal, SPSR Nellore District.…Respondents

Appeal filed against Judgment and decree dt.22.02.2017 in

O.S.No.21/2015 on the file of Senior Civil Judge, Kavali.

IN

O.S.No.21/2015

Between: Gurramkonda Jayamala…Plaintiff

And

1. Gali Vijayamma,

2. Gali Venkateswarlu.…Defendants 1 & 2

AS No.38/2017 2 Dt.15.06.2020

This Appeal Suit is coming on 27.02.2020 for final hearing before this Court in the presence of Sri Shaik Rahiman Saheb, Advocate for Appellant/Plaintiff and ofSri Dr. G.V.Ravi,Advocate for Respondents/Defendants and having stood over for consideration to this day, this Court delivered the following:-

J U D G M E N T

The Plaintiff in O.S.No.21/2015 preferred this appeal against the impugned decree and judgment, dated 22-02-2017 passed by the Senior

Civil Judge, Kavali (in short ‘trial court’). The appellant was the plaintiff and

respondents were the defendants before the trial court and they will be hereinafter referred as plaintiff and defendants for convenience.

2.This is a suit filed by the plaintiff for recovery of Rs.3,10,000/-.

The averments of the plaintiff in brief are: On 20.10.2012 One Gali

Ramanaiah borrowed a sum of Rs.2,00,000/- from the plaintiff for his family necessities and executed promissory note undertaking to repay the same with interest at 24% p.a., either to the plaintiff or to his order on demand.

Subsequently, the said Ramanaiah died intestate leaving behind the defendants 1 and 2 who are his wife and son as his legal heirs. The plaintiff knowing the death of said Ramanaiah approached the defendants and demanded for the debt. But the defendants postponed the same one or the other pretext. Hence, the suit.

3.The 2nd defendant filed written statement denying the averments in the plaint and the same was adopted by 1st defendant. It is their contention that they did not obtain any properties as the legal heirs of deceased Ramanaiah. He did not earn any movable or immovable properties in his lifetime. The said Ramanaiah did not borrow any amount from the plaintiff who is a lady. The signature in the promissory note does not belong to Ramanaiah. The attestors and scribe are near and dear persons of the plaintiff. There is no consideration under the alleged promissory note and it was not executed by Ramanaiah. The plaintiff with a malafide intention to get wrongful gain got filed the suit. The plaintiff created

AS No.38/2017 3 Dt.15.06.2020

nuisance in the house of defendant with the help of some persons and tried to obtain the signatures of defendant forcibly. The defendants approached the police. Thereafter, the plaintiff requested the police to compromise the case. The elders of both sides compromised the case. After the gap of four months the plaintiff got filed the suit. The suit is liable to be dismissed.

4.Basing on the above pleadings the following issues are framed for trial by trial court.

(1) Whether the suit promissory note is true valid and supported

by consideration?

(2) Whether the plaintiff is entitled for decree as prayed for?

(3) To what relief?

5.During course of trial, On behalf of the plaintiff, Pws.1 to 3 were examined and Ex.A1 was marked. On behalf of defendants, Dws.1 to 3 were examined. No documents were marked on behalf of defendants.

6.Upon hearing arguments of both counsel, considering oral and documentary evidence on record, the trial court disbelieved that the said

Ramanaiah who is husband and father of defendants 1 and 2 respectively borrowed amount from plaintiff and executed promissory note marked as

Ex.A.1 in favour of plaintiff, dismissed the suit claim of plaintiff, while believing the contentions raised by defendant.

7.Aggrieved by the impugned decree and judgment, the plaintiff herein preferred this appeal on various grounds mainly contending as follows:

GROUNDS 0F APPEAL:

1.The Judgment and decree of the Trial court appealed against is erroneous opposed to law, weight of evidence and pr3babilities of case.

AS No.38/2017 4 Dt.15.06.2020

2.The Trial court erred in deciding the matter on sympathy grounds but not on merits.

3. The Trial court ought to have held that notice is not mandatory before filing of the promissory note suit and the suit filed by the plaintiff is very need of urgent for the purpose of attach the death arrears of deceased

principal borrower.

4.The Lower Court ought to have believed that the evidence of PW.1 is corroborated with the evidence of P.W.2 and P.W.3 who are attester and scribe of Ex.A.1 promissory note.

5.The Lower court ought to have held that the deceased principal borrower himself called and taken the scribe and attesters for the purpose of borrowing amount from the plaintiff and the plaintiff has no need and necessary to call the scribe and attesters and the question of acquaintance of the plaintiff with the scribe and attesters does not arise.

6.The Lower court ought to have believe that the plaintiff is prove her burden lies on her with sufficient and cogent evidence and the burden lies on the defendants. But the Lower court reversely decided the same and surprisingly dismissed the suit without observing the various pleas of defendants in their written statement and also in the chief examination affidavit of D.W.1.

7.The Lower court ought to have held that DW.1 himself admitted in his cross examination that his father (deceased principal borrower) came to his house on month prior to his death and he do not know what he did prior to coming to their house and he do not know where he resided prior to coming to their house.

8.The Lower court failed to observe written statement of the defendants and also the chief examination affidavit of the DW.1. The admissions of the

AS No.38/2017 5 Dt.15.06.2020

defendants itself proves that there are disputes between the plaintiff andt hem relating to the pronotes matter and compromised by the both sides elders at police station and plaintiff destroyed that some of the kind of promissory notes before the elders and police. So it is quite clear that

before filing of the suit by the plaintiff, the plaintiff has been demanded the

defendants for payment of debt due of the deceased Ramanaiah from the defendants under the suit promissory note.

9.The Lower court failed to observe that according to the evidence of

D.W.1 he clearly admitted after the death of his father, the plaintiff came and asked us to discharge the debt, as they failed to discharge the debt she filed suit four months after.

10.The Lower court failed to observe the clear admissions of D.W.1 in his cross examination that "It is true the promissory notes related to my father are with the plaintiff". So the question of denied the signature of the deceased Ramanaiah in the EX.A.1 does not arise.

11.The Lower court failed to observe the evidence of DW.1 that he admittedly deposed that "we have not received death benefits of my father and the same are with the Government". But in the written statement and in the chief affidavit of DW.1 stated that the deceased Ramanaiah did not having any movable and immovable properties in his own.

12.The Lower court failed to observe that the evidence of DW.2 and

DW.3 is not corroborated with each other and they are nearest relatives to the defendants.

13.The Lower court failed to observe that DW.1 to DW.3 did not filed any proof of residence of the deceased Ramanaiah or any documentary evidence of his residence to prove that he residing at Kapparala Thippa village especially stated by the D.W.2 and DW.3 in their evidence. But on the other hand the evidence of DW.1 is not supported their evidence.

AS No.38/2017 6 Dt.15.06.2020

14.The Lower court failed to observe the evidence of D.W.2 and D.W.3 that they clearly stated in their chief examination that "the defendants used live our village about 15 years ago" but not the deceased Ramanaiah.

15.The Lower court ought to have believed that with a view to evade the promissory note debt of the deceased Ramanaiah out of his death benefits, the defendants wantonly create the false plea and evidence without any proof.

16. The decision of the Trial court regarding truth of EX.A.1 is vitiated as it accepted unreliable evidence of the defendants and rejected proper evidence and did not consider direct evidence, finally prayed for decree of the suit, allowing this appeal, setting aside the impugned decree and judgment of the trial court.

8.During course of hearing, and the plaintiff mainly contended that admission of D.W.1 in his cross examination that "It is true the promissory notes related to my father are with the plaintiff “, So the question of denied the signature of the deceased Ramanaiah in the EX.A.1 does not arise and examination of P.Ws.1 to 3 is sufficient to prove execution of Ex.A.1 promissory note and evidence of D.W.2 and 3 is of no use to give evidence contrary to the deed i.e., Ex.A.1 promissory note as they are strangers to the suit and no way connected to the execution of Ex.A1. Therefore, much evidentiary value cannot be attached to the testimony of D.W.2 and 3, thereby, trial court committed error, finally prayed to allow the appeal, setting aside the impugned decree and judgment of the trial court.

9.Per contra, the defendants counsel argued totally in support of the findings of the trial court under the impugned decree and judgment and mainly contended that cross-examination of P.Ws.1 to 3 is sufficient to prove the non-execution of Ex.A.1 promissory note. Therefore, much evidentiary value cannot be attached to the arguments by the council of plaintiff and thereby, trial court did commit no error, finally prayed to dismiss the appeal, confirming the impugned decree and judgment of the trial court.

AS No.38/2017 7 Dt.15.06.2020

10.Considering rival contentions, perusing the oral and documentary evidence available on record including impugned judgment of the trial court, the points that arise for consideration are as follows:

(1) Whether suit promissory note marked as Ex.A.1 is true, valid

and binding and enforceable under law?

(2) Whether plaintiff is entitled to recover suit claim together

with subsequent interest?

(3) To what result?

POINT NO.1:

11.The main contention of the plaintiff is that, On 20.10.2012. One

Gali Ramanaiah borrowed a sum of Rs.2,00,000/- from the plaintiff for his family necessities and executed promissory note undertaking to repay the same with interest at 24% p.a., either to the plaintiff or to his order on demand. Subsequently, the said Ramanaiah died intestate leaving behind the defendants 1 and 2 who are his wife and son as his legal heirs. The plaintiff knowing the death of said Ramanaiah approached the defendants and demanded for the debt. But the defendants postponed the same one or the other pretext.

12.Per contra the defendants’ contention that they did not obtain any properties as the legal heirs of deceased Ramanaiah. He did not earn any movable or immovable properties in his lifetime. The said Ramanaiah did not borrow any amount from the plaintiff who is a lady. The signature in the promissory note does not belong to Ramanaiah. The attestors and scribe are near and dear persons of the plaintiff. There is no consideration under the alleged promissory note and it was not executed by Ramanaiah.

The plaintiff with a malafide intention to get wrongful gain got filed the suit.

13.In the wake of the specific pleas raised by both parties, it is the duty of this court to reappraise the entire oral and documentary evidence and decide the appeal afresh, independently, uninfluenced by the findings of the trial court. Hence, this court would like to advert to the oral and documentary evidence on record afresh.

AS No.38/2017 8 Dt.15.06.2020

14.The plaintiff was examined as P.W.1 besides examining attestor as P.W.2 and the scribe of Ex.A.1 as PW.3. As usual, the plaintiff reiterated the pleas raised by her in the plaint in her examination-in-chief by fling an affidavit under Order 18, Rule 4 of the Code of Civil Procedure mainly contending that the defendant borrowed an amount of Rs.2,00,000/- on 20- 10-2012 from the plaintiff for his family expenses, agreeing to repay the same together with interest at 24% per annum either to the plaintiff or to her order as and when demanded. During her cross-examination she categorically admitted that,” she is a home maker and her husband died about 15 years back, he used to earn for his family and she had no documentary proof to show that she had 2 lakhs rupees with her on the date of execution of Ex.A1 suit promissory note. Though, she claimed during her cross-examination that her family got properties but didn’t file any document to substantiate the same.

15.Coming to the evidence of PW.2, who is one of the attestor of

Ex.A1 suit promissory note. He deposed that, he had no relation or friendship with said ramanaiah, whereas he called him to act as attestor to

Ex.A1 suit promissory note and PW.2 further deposed that he didn’t not know the house of the plaintiff, but again he deposed that the distance between his house and plaintiff house is one kilometre. The evidence spoken by the PW.2 is inconsistence to the plea of the plaintiff. It is a general presumption that one will call a person to act as an attestor or scribe who are well known or acquaintance to them but not strangers to them. This raises a doubt in the minds of this court and hence, this court disbelieves the version of the PW.2.

16.Coming to the evidence of PW.3, who is the scribe of Ex.A1 suit promissory note. PW.3 is said to be the scribe of suit promissory note. He deposed that he has no acquaintance with plaintiff and the deceased

Ramanaiah. If he is a document writer, it can be presumed that though the parties to the document have no acquaintance still they approached the

AS No.38/2017 9 Dt.15.06.2020

document writer for getting the document scribed as he is a document writer. But, PW3 is not a document writer and according to him he is a worker in mutton shop. Such is the case the plaintiff and the deceased approaching PW3 with whom neither of them had acquaintance seems to be improbable and unbelievable. Moreover, the evidence of Pws.1 to 3 is also not corroborating with each other on all material aspects of the suit facts and pleadings.

POINT NO.2:

17.In view of the discussion made in point No.1, the evidence of

P.Ws.1 to 3 is not worthy of credence and the same is to be disbelieved and failed to prove borrowing of Rs.2,00,000-00 from P.W.1 by Ramanaiah on 20-10-2012 and execution of Ex.A.1 on even date. The defendants rebutted and dispelled the legal presumption available under Section 118 of

Negotiable Instruments Act in the cross-examination of plaintiff’s witnesses.

Moreover, the defence of the defendant from the beginning is consistent and succeeded to establish that the suit promissory note was not supported by consideration by adducing cogent and satisfactory evidence or by eliciting in the cross-examination of P.Ws.1 to 3. Therefore, by drawing legal presumption under Section 118 of Negotiable Instruments Act, this court holds that the promissory note is not supported by consideration and the trial court also rightly concluded that the suit promissory note is not supported by consideration taking into consideration of the evidence of

P.Ws.1 to 3 and DWs. 1cto 3. Hence, this court finds no error in the finding recorded by the trial court. Accordingly, the point is held in favour defendants of the and against the plaintiff.

18.In view of finding of this court on points 1 and 2, this court finds that the trial court did commit no error in dismissing the suit and the grounds urged before this court by the counsel for the plaintiff would not stand to any legal scrutiny and there is no sufficient ground to vary or set aside the impugned decree and judgment passed in O.S.No.21/2015 by the

AS No.38/2017 10 Dt.15.06.2020

Senior Civil Judge, Kavali. Hence, this court finds no material warranting

interference with the findings of the trial court and the impugned decree and judgment are liable to be confirmed, thereby the appeal deserves to be dismissed.

POINT NO.3:

19. IN THE RESULT, the appeal is dismissed, confirming the impugned decree and judgment in O.S.No.21/2015, dated 22-02-2017 passed by the Senior Civil Judge, Kavali, but in the circumstances without costs.

Typed, corrected and pronounced by me through Video conference call on this the 15 th day of June, 2020.

Sd/- G.Sridevi,

III ADDL. DISTRICT JUDGE,

NELLORE.

APPENDIX OF EVIDENCE

NIL

Id/- G.S.,

III A.D.J

Copy to the Senior Civil Judge, Kavali.

AS No.38/2017 11 Dt.15.06.2020

O.S.No.170/2017 1 Dt.17.06.2020

IN THE COURT OF III ADDITIONAL DISTRICT JUDGE, NELLORE.

Wednesday, this the 17th day of June, 2020.

Present: Smt.G.Sridevi, III Additional District Judge,

NELLORE.

***

Original Suit No.170/2017

Between: Varigonda Santhi, W/o Vijaya Sankar, Aged 43 years, Hindu, House Wife, Property Holder, Residing at D.No.8/536, Iska Donka, Ranganayakulapet,

Nellore, SPSR Nellore District....Plaintiff

And

1. Vutukuru Venkateswara Rao, S/o Doraswamy, Aged 44 years, Hindu, Business, Residing at D.No.25-9-268, Z.P. Colony, Nellore – 4, SPSR Nellore District.

2. Vutukuru Babu Rao, S/o Doraswamy, Aged 69 years, Hindu, Business, Residing at Chitrakutam, Ranganayakulapet, Nellore. …Defendants No.2 is only proforma defendant

This Suit is coming on 13.03.2020 for final hearing before this Court in the presence of Sri N.Venkateswar Rao, Advocate for Plaintiff and of Sri P.B.Sudhakar Rao, Advocate for the defendant No.1 and Sri Sk.Saleem, Advocate for defendant No.2 and the matter having stood over for consideration to this day, this Court delivered the following:-

J U D G M E N T

The plaintiff filed the suit for recovery of Rs.15,39,500-00, including interest on the strength of promissory note, dated 11-09-2014 of principal amount for Rs.10 lakhs, marked as Ex.A.1.

O.S.No.170/2017 2 Dt.17.06.2020

2.The plaintiff states that the 1st defendant herein borrowed a sum of Rs. 10,00,000/- (Rupees Ten Lakhs Only) from her on 11-09-2014 and executed a promissory note in her favour for the said sum on the even date agreeing to pay the same on demand or to order with interest at 18%

P.A. for valid consideration paid. The plaintiff states that the 1st defendant himself filled up the columns of the promissory note dt.11-09-2014 for

Rs.10,00,000/- and it is in his holograph and the said promissory note was duly attested by two of its attestors. The original promissory note dt.11-09-2014 for Rs.10,00,000/- is filed herewith and the contents thereof be read as part and parcel of this plaint.

The plaintiff states that the 1st defendant is her father's younger brother and the 2nd defendant is her father and thus the defendants 1 and 2 are the brothers and the sons of Doraswamy. Both the defendants together are doing the businesses in various fields. The plaintiff further states that on the recommendation of her father i.e., the 2nd defendant herein she lend the amount of Rs.10,00,000/- to the 1st defendant and hence she also took the signature of the 2nd defendant on the Revenue Stamp affixed on the promissory note and he was shown as a Proforma Defendant only and no relief is claimed against him. The plaintiff states that as the 1st defendant did not pay the amount due under the said instrument said above, she informed to the 2nd defendant i.e., to her father about the non-payment where he expressed that some disputes arose between them and hence he became helpless.

The plaintiff states that even in spite of repeated oral demands made by her, the 1st defendant has not chosen to pay the amount due under the promissory note dt.11-09-2014 said supra and he was postponing the same on some pretext or other. Hence this suit.

3. The 1st defendant appeared before this court and filed written statement raising several contentions that he never borrowed the amount under the promissory note and never executed the same and the

O.S.No.170/2017 3 Dt.17.06.2020

promissory note is fabricated and the other contents of the suit promissory note are not filled up by the 1st defendant. The 1st defendant never received any consideration under the promissory note. The plaintiff had no capacity to lend such huge amount. There is no debtor and creditor relationship between the 1st defendant and the plaintiff. There are disputes pending between plaintiff family and him and he also filed criminal cases against the plaintiff husband and father i.e., the 2nd defendant. Due to enmity between them, the plaintiff in collusion with her husband, father and attestors of the suit promissory note, they created and forged the suit promissory note for wrongful again and to harass this 1st defendant, finally prayed to dismiss the suit with costs.

4.The 2nd defendant also filed his separate written statement and he prayed this court to dismiss the suit against him, as he is a proforma defendant only and the plaintiff is also not claimed any relief against him.

5.Basing on the above pleadings, the following issues are framed for trial:

1. Whether the suit promissory note, dt.11.9.2014 is valid, true and binding on the 1 st defendant?

2. Whether the plaintiff is entitled for sum of Rs.15,39,500/-

against the first defendant together with interest? If so,

3. To what relief?

6.During the course of trial, on behalf of plaintiff, P.Ws.1 and 2 were examined, marked Ex.A.1 i.e., suit promissory note. On behalf of 1st defendant he himself examined as DW.1 and marked Exs.B1 to B3. 2nd defendant didn’t examine any witness on his behalf nor marked any document.

ISSUES 1 AND 2:

7.As the evidence is common in issues 1 and 2, therefore this court is taking up and deciding both the issues simultaneously to avoid repetition and for the sake of convenience.

O.S.No.170/2017 4 Dt.17.06.2020

8.The plaintiff mainly contended that the defendant borrowed

Rs.10 lakhs under Ex.A.1 as mentioned in the earlier paras, but the defendant denied the very execution of the promissory note by filing written statement and also denied the relationship of debtor and creditor between the defendant and the plaintiff and the defendant contended that the suit promissory note is filled up by the plaintiff in collusion with her husband, father and attestors of suit promissory note and created the promissory note, filed the present suit. Thus, the suit promissory note is devoid of consideration according to the defendant and prayed to dismiss the suit.

9.To prove the suit debt, the plaintiff examined herself as P.W.1, testified about borrowing of amount under Ex.A1. P.W.1 was cross- examined at length by the defendant’s counsel, but nothing could be elicited in the cross-examination to disprove the execution of the promissory note by the defendant. P.W.1 also specifically disclosed about the source of income to lend the amount covered by Exs.A.1 to A.4.

10.P.W.2 is the attestor of the promissory note Ex.A.1, dated 11-09-2014, where under defendant borrowed Rs.10 lakhs and the promissory note is in the handwriting of the defendant himself. In the cross-examination, similarly, he also spoke about execution of promissory note by the defendant signing in his presence. In the cross-examination of P.W.2, also nothing is elicited to disprove the contention of the plaintiff or to prove the specific plea set up by the defendant in the written statement. More particularly, the defence of forgery of his signature and fabrication of the contents of promissory note setup by the defendant.

11.On overall consideration of the entire evidence available on record, the evidence of P.Ws.1 and 2 is consistent with regard to the borrowing of Rs.10 lakhs on 11-09-2014 under Ex.A.1 and execution of promissory note on the even date agreeing to repay the same with interest at 18% per annum by the defendant.

O.S.No.170/2017 5 Dt.17.06.2020

12.When once the plaintiff proved execution of the suit promissory note marked as Ex.A.1, she is entitle for the presumption available under section 118 of Indian Negotiable Instrument Act, 1881 in her favour and the burden of onus of proof automatically shifted to the defendant to rebut the evidence of P.Ws.1 and 2 and presumption available under section 118 of

Indian Negotiable Instrument Act, 1881 by adducing cogent and satisfactory evidence.

13.To substantiate the same, the 1st defendant as D.W.1, as usual, testified denying execution of promissory note under Ex.A.1 by contending it is forged and fabricated document by plaintiff with her husband, father and attestors of the suit promissory note.

14.During his cross-examination, he categorically admitted that, “I do not have any documentary proof to show that the 2 nd defendant was working as a Government employee and also doing business and also I did not file any documentary proof to show that since 1993, I am doing business under the name and style of “Santhi Hirers” as well as for the 'Kasthuri Gardens”.

15. “I did not file any documents relating to the O.S.No.463/2014 on the file of Prl. Junior Civil Judge, Nellore filed by Rajyalakshmi before this Court as well as the decree, dt.12.08.2017 which was dismissed for default. I did not file any document to show that we are having disputes prior to 11.09.2014. Under Ex.B1, the plaintiff was not shown as an accused and it is true that Ex.B1 was registered in December, 2014. It is true that I did not mention in my report under Ex.B1 that myself and plaintiff are having disputes. It is true that under Ex.B2 judgment, the plaintiff was not a party in CC No.1230/2014. It is true that in Ex.B3 i.e., OS 50/2016, the plaintiff in this case filed the said suit against me and the 2 nd defendant that we both jointly borrowed a sum of Rs.10,00,000/- from the plaintiff. It is true that nowhere it is mentioned in the written statement filed by me in

OS.50/2016 that myself and plaintiff are having disputes.”

O.S.No.170/2017 6 Dt.17.06.2020

16.“I did not file any document before this Court that the husband of plaintiff filed OS 80/2015 on the file of I Addl. Senior Civil Judge's Court,

Nellore by obtaining GPA for the 2 nd defendant herein. It is true that the name of Santhi Hirers was kept in the name of the plaintiff.”

17.Coming further to the cross-examination of DW.1, he deposed that, “It is true that the signatures on the Vakalath filed by me and in the written statement are one and the same. Witness confronted the postal acknowledgement, but he denied his signature in the postal acknowledgement i.e., Service of suit summons.”

18.To the most surprising to this court that the defendant denied his signature on the postal acknowledgement i.e., “Service of suit summons”, when the same was confronted to him during his cross- examination. Then how he is able to know the suit proceedings initiated against him by the plaintiff, moreover the defendant appeared before this court and represented the suit proceeding through his Advocate and also appeared as witness. On this ground itself the version of the defendant is liable to be disbelieved and not his evidence is not worthy of credence.

19.The defendant didn’t even choose to send Ex.A1 i.e., suit promissory note to the handwriting expert to prove the plea of forgery rose by him. If really the version is true, he would not have kept quiet without making any effort to prove his plea and defence of forgery. In this regard, in the case of Vanga Surya Rao vs. Guttala Gopala Krishna, reported in 1999 LawSuit (AP) 546 in a similar case observed in para 15 and 17 of the judgment as under:

“... if due execution of the instrument once proved the presumption operates with more vigour and it should shut out the explanation sought to be given. The enquiry into a plea of forgery is a comprehensive one, calling for detailed evidence and material on either side or such plea of forgery even constitutes a serious offence under the provisions of the Indian Penal Code. Therefore, the conduct of the parties prior to the suit and their silence goes a long way in considering the said plea. On the face of the consistent evidence in support of execution,

O.S.No.170/2017 7 Dt.17.06.2020

the plaintiff’s burden initially stands discharged. However, on the plea of forgery the defendant invites upon himself the shifting of the burden. However, no serious attempts were made on his behalf nor any cogent evidence is let in to prove the forgery.

…. Mere suggestions to the witnesses would not suffice. But in the absence of strong evidence, it becomes difficult to accept that the documents are forged.”

20.The ratio laid down in the said case applies squarely to the case on hand. In the instant case, except taking the plea of forgery, the defendant has not adduced any probable evidence to prove his plea.

Therefore, in the absence of any cogent and satisfactory evidence, his plea cannot be accepted. Thus, the defendant utterly failed to rebut the presumption drawn against him. The presumption thereby, transforms into a proven fact. The plaintiff thereby could prove that the suit promissory note is true, valid and binding on the 1st defendant. Thus, plaintiff is entitled for recovery of suit amount, as prayed for and the suit against the 2nd defendant is liable to be dismissed as he is a proforma defendant only and the plaintiff also didn’t claim any relief against him. Accordingly, these issues are answered in favour of the plaintiff and against the 1st defendant.

Issue No.3:

21.In view of the findings of this court on issue No.1 and 2, the suit is to be decreed with costs, as prayed for.

In the result, the suit is decreed with costs, against the 1st defendant for an amount of Rs.15,39,500/- with subsequent interest at 09% p.a.

from the date of suit till the date of decree and at 06% p.a. from the date of decree till realization, on Rs.10,00,000/- (principal amount) and whereas, the suit against the 2nd defendant is dismissed without costs.

Typed, corrected and pronounced by me through video conference from my office, on this the 17 th day of June, 2020.

Sd/- G.Sridevi,

III Additional District Judge, Nellore.

O.S.No.170/2017 8 Dt.17.06.2020

Appendix of Evidence Witnesses examined for

PLAINTIFF:

PW1: V.Santhi, PW2: K.Ravi.

DEFENDANTS:

DW1: V. Venkateswara Rao.

Exhibits Marked For Plaintiff

Ex.A1 is the original promissory note, dt.11.09.2014.

Exhibits marked for Defendants

Ex.B1 is the Certified Copy of FIR in Crime No.659/2014 of V town Police Station, Nellore.

Ex.B2 is the Certified Copy of Judgment, dt.5.2.2018 in CC No.1230/2014.

Ex.B3 is the Certified copy of the plaint and affidavit of the plaintiff in OS No.50/2016.

Id/- G.S.,

III A.D.J

IN THE COURT OF SESSIONS: SESSIONS DIVISION::NELLORE

(In the court of III Additional District & Sessions Judge, Nellore)

Thursday, this the 4 th day of June, 2020.

Present: Smt G. Sridevi.,

III ADDL. DIST. & SESSIONS JUDGE, 

NELLORE.

***

CRIMINAL APPEAL No.335/2017

1.Judgment in Crl. AppealC.A.No.335/2017 No.

2.From which Court the I Addl. Assistant Sessions Judge, Nellore appeal is preferred

3.No. of the case in that S.C.No.141/2014 Court

4.No. of the appealC.A.No.335/2017

5.Name of the State: The Inspector of Police, East Circle, complainantNellore.

6.Names and description AnnaluriNarendra, S/o Papaiah, aged about of the appellant27years, R/o Ammavaripalem Village, Podalakuru Mandal, S.P.S.R Nellore District.

7.The sentence and law IN THE RESULT, the conviction imposed upon under the appellant/accused by the lower Court for the offence under Section 392 of I.P.C. in S.C. No.141of 2014is confirmed. However, while confirming the fine imposed upon the appellant/accused by the lower Court in the above case under Sec.392 of IPC, the sentence of rigorous imprisonment for a period of twoyears imposed upon the appellant/accused by the lower Court in the above case is modified and reduced to the period of remand of the appellant/accused. The period of remand already undergone by the appellant/accused shall be set­off under Section 428 of Cr.P.C. The offence under Sec.332 of IPC in S.C. No.141of 2014 is set aside. The property disposal order passed by the lower Court stands good.

2

The appeal is thus disposed­of with the above modification in the sentence.

8.Whether confirmed or Modified. modified or reversed.

9.Date of presentation15.9.2017

10.Date of hearing01.6.2020

11.Date of Judgment04.6.2020

This appeal is coming on 01.6.2020 upon perusing the grounds of appeal and other material papers available on record and upon perusing the arguments of Sri P.B. Sudhakar Rao, Advocate for the appellant/accused and of learned Additional Public Prosecutor for Respondent­State and having stood over to this day for consideration, the court delivered the following:­

J U D G M E N T

This criminal appeal is directed against the judgment of conviction and sentence in S.C. No.141 of 2014 passed by I Addl. Assistant Sessions

Judge, Nellore dated 15­09­2017, wherein the appellant/Accused was found

guilty for the offence punishable under Section 392 of I.P.C. and sentenced to suffer rigorous imprisonment for a period of two years and to pay a fine of

Rs.1,000/­, in default to suffer simple imprisonment for a period of fifteen days and further found guilty or the offence punishable under Section 392 of

I.P.C. and sentenced to undergo simple imprisonment for a period of nine months.

2.The appellant herein was the accused before the Court below and the respondent herein was the complainant, State represented by

Inspector of Police, East Circle. For the sake of convenience, the parties hereinafter are referred to as the first accused and the complainant, respectively.

3

3.The case of the prosecution is that on 02­01­2012, morning

P.W.1/Baghyalakshmi along with P.W.3/Konduru Sreenivasulu Reddy and

P.W.4/O.Udayakumar Reddy went to Bazar and after completion of their work, they reached Vijayamahal gate center at about 9.30 a.m., at that time, the accused with an intention to rob the gold chain from the neck of P.W.1 armed with knife in order to use the same at the time of committed offence, went upto P.W.1 and snatched gold chain from her. P.W.2 caught hold of the accused by chasing him and he escaped from the scene of offence by leaving his motor cycle. Hence the offence. Basing on the complaint given by P.W.1 police registered a case and investigated into.

4.After completion of investigation, the Inspector of Police,

East Circle, Nellore filed charge­sheet against the accused for the offences under Section 332 and 392 of I.P.C.

5.Before the trial Court, the prosecution in order to bring home the guilt of the accused for the above referred offences, adduced the oral evidence of Pws.1 to 11 and got exhibited Exs.P1 to P12 and M.Os.1 to 9 are marked.

6.On appreciation of the above referred oral and documentary evidence, the learned I Additional Assistant Sessions Judge,,

Nellore, by way of judgment, found the accused guilty for the alleged offences, convicted and sentenced as indicated above.

7.Aggrieved by the order of conviction and sentences of imprisonment by way of impugned judgment, the sole accused preferred the instant appeal questioning the correctness, legality and sustainability, on the strength of the grounds enumerated in the memorandum of grounds of appeal.

4

8.Heard both counsels. Perused the oral and documentary evidence adduced before the trial Court, impugned judgment, grounds of appeal. 

9.Heard the learned Counsel for the appellant and the learned Public Prosecutor.

10.Now the point that arise for determination is:

Whether the impugned judgment of conviction and sentence of the lower Court passed against the accused is on correct lines and

whether it needs any inference of this Court in this appeal?.

POINT:

11.The charge against the accused is that on 02­01­2012, morning P.W.1/Baghyalakshmi along with P.W.3/Konduru Sreenivasulu

Reddy and P.W.4/O.Udayakumar Reddy went to Bazar and after completion of their work, they reached Vijayamahal gate center at about 9.30 a.m., at that time, the accused with an intention to rob the gold chain from the neck of

P.W.1 armed with knife in order to use the same at the time of committed offence and thus committed an offence punishable under Sections 332 and 392 of I.P.C. During the examination of the accused under Section 313 of

Cr.P.C. before the lower Court, the accused pleaded not guilty of the said offence. On perusal of entire evidence, all the prosecution witnesses corroborated the version of prosecution and this court has no hesitation to come to conclusion that the accused committed the offence under Sec.392 of

IPC and seized M.Os1 to 6 from the accused and handed over the same to

P.W.1 on the date of offence at Police station. As per the evidence of 5 P.W.10/Inspector of Police, categorically admitted that the accused has no previous cases against as on 02­01­2012. The trail court rightly discussed and convicted the accused under Sec.392 of IPC. Therefore, this court is not interfering with the conviction imposed by the trial court under Sec.392 of

IPC. 

12.When coming to the charge under Sec.332 of IPC, there are discrepancy in version spoken by the prosecution witnesses with regard to sustaining injury to P.W.2. When there is differences in the evidence spoken by the witnesses, the version which is favorable to the accused can be taken into consideration. Hence, the conviction imposed by the trial court for the offence under Sec.332 of IPC is set aside. The learned Counsel for the accused represented that the accused is a married person, having aged parents, small children and that he is the sole bread winner of the family.

13.The record shows that the accused was in judicial custody from 02­01­2012 to 15­02­2012, i.e., for a period of 1 month and 13 days.

Considering the submissions made on behalf of the accused, this court is inclined to modify the sentence imposed on the accused by the lower Court from two years to the period of his remand, while confirming the fine imposed on him by the lower Court.

14.IN THE RESULT, the conviction imposed upon the appellant/accused by the lower Court for the offence under Section 392 of

I.P.C. in S.C. No.141 of 2014 is confirmed. However, while confirming the fine imposed upon the appellant/accused by the lower Court in the above case under Sec.392 of IPC, the sentence of rigorous imprisonment for a period of 6 two years imposed upon the appellant/accused by the lower Court in the above case is modified and reduced to the period of remand of the appellant/accused. The period of remand already undergone by the appellant/accused shall be set­off under Section 428 of Cr.P.C. The offence under Sec.332 of IPC in S.C. No.141 of 2014 is set aside. The property disposal order passed by the lower Court stands good.

The appeal is thus disposed­of with the above modification in the sentence.

Typed, corrected and pronounced by me through video call conference with the counsel for appellant/accused and Addl. Public Prosecutor from my office, this the 4 th day of June, 2020.

Sd/- G.Sridevi,

III ADDL. DISTRICT & SESSIONS JUDGE,

NELLORE.

Copy to: 1.The Hon'ble Registrar (Judicial), High Court of A.P., Amaravathi. 2.The I Addl. Assistant Session Judge, Nellore.

Enclosures: Entire Record in S.C.No.141/2014, dated 15.09.2017 on the file of I Addl. Assistant Session Judge, Nellore along with copy of Judgment in C.A.No.335/2017 on the file of this Court.

IN THE COURT OF SESSIONS: SESSIONS DIVISION::NELLORE

(In the court of III Additional District & Sessions Judge, Nellore)

Wednesday, this the 3 rd day of June, 2020. Present: Smt G. Sridevi.,

III ADDL. DIST. & SESSIONS JUDGE, 

NELLORE.

***

CRIMINAL APPEAL No.301/2015

1.Judgment in Crl. AppealC.A.No.301/2015 No.

2.From which Court the Spl. Judicial Magistrate of I Class for Railways, appeal is preferredNellore

3.No. of the case in that C.C.No.51/2015 Court

4.No. of the appealC.A.No.301/2015

5.Name of the State: Sub­Inspector of Police, Railway Police complainantstation, Nellore.

6.Names and description Vaka Pawan Kumar, S/o Krishnaiah, aged about of the appellant28 years, R/o Balaji Nagar, Nellore Town, Native of MalyaS.P.S.R Nellore District.

7.The sentence and law In the result, this criminal appeal is under allowed by setting aside the judgment of conviction and sentence passed by the court of Spl. Magistrate of I Class for Railways, Nellore in C.C. No.51/2015, dt. 31­08­2015. Fine amount paid by the appellant/accused is ordered to be refunded forthwith after expiry of appeal time.

8.Whether confirmed or Reversed. modified or reversed. If modified the modification.

9.Date of presentation21.9.2015

10.Date of hearing13.3.2020

11.Date of Judgment03.6.2020

This appeal is coming on 13.3.2020 upon perusing the grounds of appeal and other material papers available on record and upon perusing the arguments of Sri Veluru Ravi, Advocate for the appellant/accused and of learned

Additional Public Prosecutor for Respondent­State and having stood over to

this day for consideration, the court delivered the following:­

2

// J U D G M E N T //

The appellant/accused preferred this appeal U/Sec. 374 of Cr.P.C. against the conviction and sentence passed by the Spl. Judicial Magistrate of I Class for

Railways, Nellore in C.C. No. 51/2015 dated 31.08.2018 for the offence punishable U/Secs. 323 and 341 of IPC sentencing the accused/appellant to pay fine of Rs.500/­ each offence in default of fine amount simple imprisonment for a period of one month for each offence. 

2.The brief allegation of charge sheet are as follows:

On 08­05­2014 at 14.00 hrs., wherein the marginally noted accused while

PW.1 traveling in Pinakini Express which was proceeding from Vijayawada side and stationed at Platform No.2, Nellore and the accused quarreled with P.W.1 and wrongfully restrained and pulled him from the train and beat him indiscriminately and caused small injuries to P.W.1 due to some misunderstandings arose between the accused and P.W.1 while performing their duties in Abbot India Ltd., Hyderabad. The same was witnessed by P.W.3. After recording the statements of P.Ws.1 to 3, P.w.4 laid charge­sheet in this case.

The learned Magistrate taken the cognizance of offence for the offence

U/Sec.323 and 341 of IPC. against the Accused.

After complying all the procedural formalities, the accused was examined

U/Sec. 239 of Cr.P.C., for the offence under section 323 and 341 of IPC and

Charge is framed for the offences under section 323 and 341 of IPC against the accused and read over and explained to them in Telugu and the accused did not plead guilty for the offence and claimed to be tried and the trial conducted.

3

3.To prove the guilt of the accused, the prosecution examined P.Ws.1 to 4 and got marked Exs.P.1 to P.4. Prosecution evidence is closed and the accused examined under section 313 Cr.P.C for the incriminating material appearing against him and he denied the same and reported no defence evidence and accordingly, evidence was closed. After hearing both sides, trial court sentenced the accused for the offence punishable U/Secs.323 and 341 of

IPC sentencing the accused/appellant to pay fine of Rs.500/­ each offence, in default of payment of fine the accused shall undergo simple imprisonment for a period of one month for each offence. 

4.Aggrieved by the conviction of appellants/accused preferred this present appeal on the grounds. Heard the hearing on both sides. Perused the grounds and material on record.

5.Now the points for determination are:

1. Whether the prosecution proved the guilt of the Appellant/Accused

beyond reasonable doubt for the charges under Section 341 and 323 of 

I.P.C.?

2. Whether there is interference with the judgment of the trial court and require any interference?

3. To what relief?

POINTS 1 & 2:

6.The allegations made by the prosecution that Accused was charged under

Sec.341 and 323 of IPC that he caused criminal intimidation and hurt to P.W.1 by pulling him from the running train into the platform and beat him indiscriminately. To prove the ingredients of Sec. 323 of IPC, this court feel better advert the definition under Sec.323 of IPC and ‘HURT’ defined under

Sec.319 of IPC 4

Sec.323 definition : 

“Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said “voluntarily to cause grievous hurt”.

Hurt defined under Sec.319 of IPC “whoever causes bodily pain, disease, infirmity to any person is said to cause hurt”.

7.In the instant case on hand, the act of accused on P.W.1 to be said hurt, the prosecution should establish that P.W.1 suffered bodily pain, disease or infirmity. The alleged act of the accused is that he caused hurt to P.W.1 by pulling him from the running train into the platform and beat him indiscriminately. That means either P.W.1 would have been suffered bodily pain, disease or infirmity. On careful scrutiny, the prosecution failed to establish any medical or documentary evidence to corroborate that P.W.1 suffered bodily pain, disease or infirmity for the act of accused except oral evidence of P.W.1, wherein discussed in the above paras this court is not inclined to believe the version of

P.W.1 and did not and did not inspiring the confidence of the court. P.W.3 is the alleged eye witness witnessed the alleged incident and he did not support the version of prosecution. P.W.4/Investigating officer categorically deposed that he did not examine any of the eye­witnesses. 

8.Further, the prosecution did not established any previous disputes between P.W.1 and accused. Thereby, in the absence of any cogent and substantive evidence, the trial court erred in convicting the accused. After considering all the evidences, this court is of considered opinion that the findings of trial court was went on wrong by convicting the accused U/Sec. 341and 323 of IPC without appreciating the evidence properly and effectively. Hence the 5 judgment of conviction and sentence passed against the appellant/accused

U/Secs. 341 and 323 of IPC is hereby set aside. Accordingly, point no. 1 and 2 are answered in favour of appellant/accused and against prosecution.

POINT No.3:

9.IN THE RESULT, this criminal appeal is allowed by setting aside the judgment of conviction and sentence passed by the court of Spl. Magistrate of I

Class for Railways, Nellore in C.C. No.51/2015, dt.31­08­2015. Fine amount paid by the appellant/accused is ordered to be refunded forthwith after expiry of appeal time.

Typed, corrected and pronounced by me through video call conference with the counsel for appellant/accused and Addl. Public Prosecutor from my office, this the 3 rd day of June, 2020.

Sd/­ G.Sridevi, 

III ADDL. DISTRICT & SESSIONS JUDGE,

NELLORE.

Copy to:

1. The Hon’ble Registrar (Judicial) High Court of A.P., Amaravathi.

2. The Special Judl. Magistrate of I Class, Railways, Nellore.

Enclosures: Entire Record in C.C.No.51/2015, dated 31.08.2015 on the file of Special Judl.

Magistrate of I Class for Railways, Nellore along with copy of Judgment in

C.A.No.301/2015 on the file of this Court.