Sri K.P.Balaji

1

IN THE COURT OF THE II ADDITIONAL JUDICIAL FIRST CLASS

MAGISTRATE::RAJAHMUNDRY.

Present:- Sri.K.P.Balaji, II Addl., Judl. First Class Magistrate, Rajahmundry.

Friday, the 28th day of April, 2017

C.C.No. 595 /2016

Between:

State Represented by Assistant Director of Agriculture (Regular) and Notified Authority FCO 1985 Kakinada. …Complainant.

And

A1:- Dealer Firm: Sri Gunturi Venkateswarulu, M/s. Nava Bharat Ventures, Trading Division, Main road, Samalkot Village Samalkot Mandal.

A2:- Proprietor Sri Gunturi Venkateswarulu, Aed 55 years, S/o.Chanchayya, quarter NO.A6A, Sugar Factory colony, Samalkot.

A3:- Distributor & Manufacturer: M/s.Prathyusha Chemicals and Fertilizers Limited, Visakhapatnam, rep. by K. Appalanaidu (Chemist), aged 27 years, S/o.K. Suridemudu, Doggapeta, Kummapalli PO, Vepada Mandal, Vizianagaram.

A4:- K. Appalanaidu, M/s. Prathyusha Chemicals and Fertilizers Limited, Visakhapatnam. Presently known as Ranar Agro Chem Limited, Visakhapatnam. Rep. by K. Appalanaidu (Chemist), aged 27 years, S/o.K. Suridemudu, Doggapeta, Kummapalli PO, Vepada Mandal, Vizianagaram. ….Accused.

This case coming on 26.4.2017 for final hearing before me in the presence of A.P.P. for complainant and of Sri.P.G.K.A.Swamy, advocate

for accused No.1 and 2 and Sri.P. Ranga Sai Mitra, advocate for accused

NO.3 and 4 and having stood over till this day for consideration, this court delivered the following:-

JUDGMENT

The State represented by Assistant Director of Agriculture (R)

Rajahmundry filed complaint against the accused for the contravention 2 of Clause 19(1)(a) of Fertilizer (Control) Order 1985 r/w.Sec.7(1)(a)(ii) of Essential Commodities Act., 1955 alleging as follows:

2. The Mandal Agriculture Officer and Fertilizer Inspector,

Samalkot is having jurisdiction for implementing the Fertilizers (Control)

Order 1985. As per the G.O.Ms.No.556 dated 16-5-1995 he was appointed by Commissioner and Director of Agriculture, A.P, Hyderabad vide proceedings dt.23.7.2010 as Mandal Agriculture Officer and posted at Samalkot.

3. On 20.12.2014 at 10.35 AM, the Mandal Agriculture Officer visited the A1 premises situated in D.No.3-37, main road, Samalakot.

At that time the proprietor A2 was present transacting the business.

The Mandal Agriculture Officer informed him about the purpose of visit and conducted general inspection. During the course of inspection, he expressed his intention to lift sample of Single Super Phosphate(SSP) manufactured by A3 from one batch No.57 and invoice No.PSSP 01714.

He secured the presence of two mediators and in their presence collected samples from the stock of Single Super Phosphate. He collected the composite sample by using a sampling probe from randomly selected fertilizer bags from different layers from top and from all open sides in zig-zag manner. The composite sample so collected was reduced to 1600 grams by quartering method and then divided into four equal portions each portion weighing about 400 grams.

Each portion was kept in polythene bag and sealed. The Mandal

Agriculture Officer filled up the information in Form-P, K and J and

Form-P was kept in a cloth bag along with the fertilizer packet and the bag was stitched with thread and sealed with wax using his metal seal.

Out of the four portions, the first portion was sent to Fertilizer Coding 3

Center, Malakpet, Hyderabad through ANL parcel service, on 22.12.2014 for the purpose of analysis. The second sample was handed-over to the dealer along with Form-J under acknowledgment.

The 3rd sample was handed-over to Assistant Director of Agriculture,

Kakinada as guard sample and 4th sample was sent to RSTL Bapatla as referee sample through ANL parcel service. The Deputy Director of

Agriculture FCO Laboratory, Hyderabad vide report dt.19.1.2015 communicated the analysis report opining that the sample is not according to specifications. On 1.2.2015 the Mandal Agriculture Officer served the copy of analysis report on A2 and obtained his acknowledgment. On verification he did not find any stock of the sub standard variety of fertilizer and hence he seized the relevant records in the presence of two mediators under a cover of another mediators report. He also obtained safe custody orders from the court. The

Assistant Director of Agriculture, Kakinada issued show cause notice to the accused on 12.12.2015. On receipt of the said notice A2 gave a reply seeking for reanalysis by paying the requisite fee of Rs.1,000/- through demand draft dt.25.2.2015 drawn in favour of Assistant

Director of Agriculture. The referee sample was sent to Commissioner and Director of Agriculture, Hyderabad by special messenger for reanalysis on 27.2.2015. The Assistant Director of Agriculture,

Kakinada received reanalysis report on 4.6.2015 vide report dt.25.5.2015 opining that the sample is not according to specifications.

The same was informed to the dealer on 12.6.2015. In his reply dt.27.2.2015 A2 has stated that he purchased the Single Super

Phosphate from A3. He further stated that he is not responsible for the sub standard variety of fertilizer. A3 gave a reply on 19.2.2015 stating 4 that the Single Super Phosphate was manufactured by following the norms and FCO specifications. Hence the complaint.

3. The complaint was taken on file for the offence under

Cl.19(1)(a) of Fertilizers (Control) Order 1985 punishable under

Sec.7(1)(a)(ii) of Essential Commodities Act against the accused.

4. When the accused appeared before the court, copies of all documents on which the complainant relied on were supplied to them.

5. When examined under Sec.239 Cr.P.C they denied having committed any offence. Thereafter, charge under Cl.19(1)(a) of

Fertilizer (Control) Order r/w.7(1)(a)(ii) of Essential Commodities Act has been framed read over and explained to them in Telugu for which they pleaded not guilty and claimed to be tried.

6. On behalf of the complainant P.Ws.1 to 5 were examined and Ex.P1 to P17 were marked.

7. After closure of evidence on behalf of complainant, the accused have been examined under Sec.313(1)(b) Cr.P.C regarding the incriminating material appearing against them in the evidence of P.W.1 to 5 which they denied.

8. Now the point for determination in this case is: Whether the complainant has proved the guilt of the accused beyond reasonable doubt for the offence under Sec.7(1) (a) (ii) of Essential Commodities

Act.

9. Heard the learned A.P.P for the complainant and the learned counsel for the accused and perused the material available on record.

5

10. While it is the contention of the learned A.P.P. that since the sample of fertilizer lifted from the premises of A1 has been found to be not of standard quality inasmuch as it did not conform to the specifications even after reanalysis, the accused are liable for punishable for contravention of Clause 19(1)(a) of Fertilizer Control

Order. It is the contention of the learned counsel for the accused that the prescribed procedure for lifting the sample has not been followed, that there is an in-ordinate delay in causing analysis of the second sample and that the author of the analysis or reanalysis report has not been examined which is fatal to the case of the complainant and hence the accused are entitle to be acquitted. In support of the above contention, the learned counsel for the accused relied upon the decision of our Hon’ble High Court in Visakha Agro Chemicals Private

Limited v. Fertilizer Inspector cum Assistant Director of

Agriculture Regular Vizag 1 .

11. Clause 19(a) of FCO, 1985(for short the order) deals with restriction of manufacture, sale and distribution of fertilizer. Clause 20 deals with powers of Inspectors. Clause 30 deals with time limit for analysis and communication of result. Under Clause 30 (1) where sample of a fertilizer has been drawn the same shall be dispatched along with a memorandum in Form-K to the laboratory for analysis within a period of 7 days from the date of its drawal. Under Sub Clause (2) the laboratory shall analyze the sample and forward the analysis report in Form-L within 30 days from the date of receipt of sample in the laboratory to the authority specified in the said memorandum.

Under sub Clause (3) the authority to whom the analysis report is sent under Sub Clause (2) shall communicate the result of the analysis to 1 1997(1) ALD Crl. 502 6 the dealer/manufacture etc. from whom the sample was drawn within 15 days from the date of receipt of the analysis report of the laboratory.

Schedule I of the Order deals with specifications of fertilizers. Schedule

II deals with procedure for drawal of samples of fertilizers. Under Part- 9, while drawing the samples, the sample shall not be taken at a place exposed to rain/sun. The sampling instruments shall be clean and dry and to draw a representative sample, the contents of each bag selected for sampling should be mixed as thoroughly as possible by suitable means. Clause (2) deals with sampling from baged material. Clause- 2(i)( c ) deals with selection of bags for sampling and it says that the number of bags to be chosen from a lot shall depend upon the size of the lot. If size of the lot is 10 sample should be lifted from one bag. If the size of the lot is between 11-100, the sample should be drawn from two bags. Similarly if the size of the lot is between 101-200 the sample should be lifted from 3 bags and so on so forth. Clause 4(a) deals with weight of one sample.

12. P.W.1 is Mandal Agriculture Officer who lifted the samples from

A1 dealer firm. He reiterated all the facts stated by him in the complaint as well as mediators report Ex.P2. The mediators report is silent about the size of the lot from which the samples were drawn. But in Form-J, Ex.P5, the stock position of the lot was shown as 50 MTs.

Both Ex.P2 as well as the evidence of P.W.1 is silent from how many bags the samples were drawn. It is elicited from P.W.1 that the bags were sealed and there was no tampering of the bags. He admitted that if the sample of fertilizer is exposed to light and air, there is possibility of change in the values. He also admitted that while sample was drawn on 20.12.2014 it was analyzed by the analyst on 8.1.2015 i.e.

within 17 days. He also admitted that the second sample was sent for 7 reanalysis after 101 days. No explanation is forthcoming for such delay. As cold be seen from Sub Clause (3) of Cl. 30 any sample sent to analyst has to be analyzed and report should be sent to the dealer from whom the sample was drawn within 15 days from the date of receipt of the sample. It appears there is violation of the above said clause for conducting reanalysis of the second sample. It is also not known under what conditions the second sample was stored.

13. P.W.5 is the Assistant Director of Agriculture who filed the complaint after obtaining reanalysis report from State Fertilizer Control

Laboratory, Uttarakand, Dehradum. P.Ws. 2, 3 and 4 are the mediators said to be present at the time of lifting of the samples as well as seizure of records. P.W.3 stated in the cross examination that he does not know the contents of Ex.P2 except that the sample was drawn in his presence. P.W.4 is one of the mediators present at the time of seizure of record, he stated that while he was standing on the road in

Vetlapalem P.W.1 took him to A1 firm and seized the records.

Admittedly neither the analyst who analyzed the first sample nor the analyst who examined the second sample and issued reanalysis report were examined to prove the contents of Ex.P6 and Ex.P17. In Visakha

Agro Chemicals Limited case (cited supra) relied upon by the learned counsel for the accused, it was held that in view of the Sec.293 Cr.P.C.

the non-examination of the analyst who examined the sample and issued report is fatal to the case of the complainant and in the absence of his examination, the report cannot be said to be roved and on that ground the accused are entitled to be acquitted. In the case on hand also the analyst who examined the second sample and issued the reanalysis report was not examined and hence on that ground alone and the following decision of our Hon’ble High Court noticed above, the 8 accused are entitled to be acquitted. The point is accordingly answered in the negative.

14. In the result, A1 to A4 are acquitted under Sec.248(1)

Cr.P.C for contravention under Cl.19(1)(a) Fertilizer (Control) Order, 1985 punishable under Sec.7(1)(a)(ii) of Essential Commodities Act, 1955.

Dictated to the Stenographer, transcribed by him, corrected and pronounced by

me in Open court this the 28th day of April, 2017.

Sd/Sri.K.P.Balaji, II Addl. Judicial First Class Magistrate, Rajahmundry. Appendix of Evidence Witnesses examined

for complainant.

P.W.1 Nalli Samuel Joh. P.W.2 M. Srinivas. P.W.3 N. Verraju. P.W.4 K. Venkateswara Rao. PW.5: C. Bhavani.

Witnesses examined for accused: None

Documents marked for complainant:

Ex.P1 is the attested true copy of the proceedings dt.12.2.2013 Ex.P2 is the mediators report. Ex.P3 is the Form No.P Ex.P4 is the Form No.K Ex.P5 is the Form ‘J’ Ex.P6 is the report of ADA, FCOL, Tadepalligudem. Ex.P7 is the another mediator report Ex.P8 is the Annexure-AA notice. Ex.P9 is the top up the statement. Ex.P10 is the safe custody orders. Ex.P11 is the stock register. Ex.P12 is the bunch of computarized bills.. Ex.P13 is the copy of show cause notice. Ex.P14 is the attested true copy of memo dt.8.1.2016 Ex.P15 is the reply dt.19.2.2015+ issued by A3 and A4. Ex.P16 is the reply dt.27.2.2015 by A1 and A2 for reanalysis. E.xP17 is the report of reanalysis issued by State Fertilizer Control Laboratory, Uttarkhand, Dehradum. Documents marked for accused: Nil.

No. of material objects marked: Nil. Sd/Sri.K.P.Balaji, II Addl. Judicial First Class Magistrate, Rajahmundry.

9

CALENDAR AND JUDGMENT

IN THE COURT OF THE II ADDITIONAL JUDICIAL FIRST CLASS

MAGISTRATE:: RAJAHMUNDRY.

Present:- Sri.K.P.Balaji, II Addl., Judl. First Class Magistrate, Rajahmundry.

Friday, the 28th day of April, 2017

C.C.No. 595 /2016

Between:

State Represented by Assistant Director of Agriculture (Regular) and Notified Authority FCO 1985 Kakinada. …Complainant.

And

A1:- Dealer Firm: Sri Gunturi Venkateswarulu, M/s. Nava Bharat Ventures, Trading Division, Main road, Samalkot Village Samalkot Mandal.

A2:- Proprietor Sri Gunturi Venkateswarulu, Aed 55 years, S/o.Chanchayya, quarter NO.A6A, Sugar Factory colony, Samalkot.

A3:- Distributor & Manufacturer: M/s.Prathyusha Chemicals and Fertilizers Limited, Visakhapatnam, rep. by K. Appalanaidu (Chemist), aged 27 years, S/o.K. Suridemudu, Doggapeta, Kummapalli PO, Vepada Mandal, Vizianagaram.

A4:- K. Appalanaidu, M/s. Prathyusha Chemicals and Fertilizers Limited, Visakhapatnam. Presently known as Ranar Agro Chem Limited, Visakhapatnam. Rep. by K. Appalanaidu (Chemist), aged 27 years, S/o.K. Suridemudu, Doggapeta, Kummapalli PO, Vepada Mandal, Vizianagaram. ….Accused

Date of offence 20.12.2014

Date of complaint --

Appearance of accused --

Release on bail ---

Commencement of trial 6.4.2017

Close of trial 19.4.2017 10

Sentence or order 28.4.2017

Explanation for delay ----

Offence Under Cl.19(1)(a) Fertilizer (Control) Order, 1985 punishable under Sec.7(1)(a)(ii) of Essential Commodities Act 1955

Plea of the accused Not guilty.

Finding of the Judge Not guilty.

Sentence or order:-

In the result, A1 to A4 are acquitted under Sec.248(1) Cr.P.C for the contravention under Sec.19(1)(a) Fertilizer (Control) Order, 1985 punishable under Sec.7(1)(a)(ii) of Essential Commodities Act 1955.

Sd/Sri.K.P.Balaji, II A.J.F.C.Magistrate Rajahmundry. Copy submitted to:

The Hon’ble. Chief Judicial Magistrate-Cum-Principal Senior Civil Judge, East Godavari, Rajahmundry for favour of information.

1

IN THE COURT OF THE II ADDITIONAL JUDICIAL FIRST CLASS

MAGISTRATE::RAJAHMUNDRY.

Present:- Sri.K.P.Balaji, II Addl., Judl. First Class Magistrate, Rajahmundry.

Friday, the 28th day of April, 2017

C.C.No. 595 /2016

Between:

State Represented by Assistant Director of Agriculture (Regular) and Notified Authority FCO 1985 Kakinada. …Complainant.

And

A1:- Dealer Firm: Sri Gunturi Venkateswarulu, M/s. Nava Bharat Ventures, Trading Division, Main road, Samalkot Village Samalkot Mandal.

A2:- Proprietor Sri Gunturi Venkateswarulu, Aed 55 years, S/o.Chanchayya, quarter NO.A6A, Sugar Factory colony, Samalkot.

A3:- Distributor & Manufacturer: M/s.Prathyusha Chemicals and Fertilizers Limited, Visakhapatnam, rep. by K. Appalanaidu (Chemist), aged 27 years, S/o.K. Suridemudu, Doggapeta, Kummapalli PO, Vepada Mandal, Vizianagaram.

A4:- K. Appalanaidu, M/s. Prathyusha Chemicals and Fertilizers Limited, Visakhapatnam. Presently known as Ranar Agro Chem Limited, Visakhapatnam. Rep. by K. Appalanaidu (Chemist), aged 27 years, S/o.K. Suridemudu, Doggapeta, Kummapalli PO, Vepada Mandal, Vizianagaram. ….Accused.

This case coming on 26.4.2017 for final hearing before me in the presence of A.P.P. for complainant and of Sri.P.G.K.A.Swamy, advocate

for accused No.1 and 2 and Sri.P. Ranga Sai Mitra, advocate for accused

NO.3 and 4 and having stood over till this day for consideration, this court delivered the following:-

JUDGMENT

The State represented by Assistant Director of Agriculture (R)

Rajahmundry filed complaint against the accused for the contravention 2 of Clause 19(1)(a) of Fertilizer (Control) Order 1985 r/w.Sec.7(1)(a)(ii) of

Essential Commodities Act., 1955 alleging as follows:

2.The Mandal Agriculture Officer and Fertilizer Inspector,

Samalkot is having jurisdiction for implementing the Fertilizers (Control)

Order 1985. As per the G.O.Ms.No.556 dated 16-5-1995 he was appointed by Commissioner and Director of Agriculture, A.P, Hyderabad vide proceedings dt.23.7.2010 as Mandal Agriculture Officer and posted at Samalkot.

3.On 20.12.2014 at 10.35 AM, the Mandal Agriculture Officer visited the A1 premises situated in D.No.3-37, main road, Samalakot. At that time the proprietor A2 was present transacting the business. The

Mandal Agriculture Officer informed him about the purpose of visit and conducted general inspection. During the course of inspection, he expressed his intention to lift sample of Single Super Phosphate(SSP) manufactured by A3 from one batch No.57 and invoice No.PSSP 01714.

He secured the presence of two mediators and in their presence collected samples from the stock of Single Super Phosphate. He collected the composite sample by using a sampling probe from randomly selected fertilizer bags from different layers from top and from all open sides in zig-zag manner. The composite sample so collected was reduced to 1600 grams by quartering method and then divided into four equal portions each portion weighing about 400 grams. Each portion was kept in polythene bag and sealed. The Mandal Agriculture

Officer filled up the information in Form-P, K and J and Form-P was kept in a cloth bag along with the fertilizer packet and the bag was stitched with thread and sealed with wax using his metal seal. Out of the four portions, the first portion was sent to Fertilizer Coding Center, Malakpet,

Hyderabad through ANL parcel service, on 22.12.2014 for the purpose of 3 analysis. The second sample was handed-over to the dealer along with

Form-J under acknowledgment. The 3rd sample was handed-over to

Assistant Director of Agriculture, Kakinada as guard sample and 4th sample was sent to RSTL Bapatla as referee sample through ANL parcel service. The Deputy Director of Agriculture FCO Laboratory, Hyderabad vide report dt.19.1.2015 communicated the analysis report opining that the sample is not according to specifications. On 1.2.2015 the Mandal

Agriculture Officer served the copy of analysis report on A2 and obtained his acknowledgment. On verification he did not find any stock of the sub standard variety of fertilizer and hence he seized the relevant records in the presence of two mediators under a cover of another mediators report. He also obtained safe custody orders from the court.

The Assistant Director of Agriculture, Kakinada issued show cause notice to the accused on 12.12.2015. On receipt of the said notice A2 gave a reply seeking for reanalysis by paying the requisite fee of Rs.1,000/- through demand draft dt.25.2.2015 drawn in favour of Assistant Director of Agriculture. The referee sample was sent to Commissioner and

Director of Agriculture, Hyderabad by special messenger for reanalysis on 27.2.2015. The Assistant Director of Agriculture, Kakinada received reanalysis report on 4.6.2015 vide report dt.25.5.2015 opining that the sample is not according to specifications. The same was informed to the dealer on 12.6.2015. In his reply dt.27.2.2015 A2 has stated that he purchased the Single Super Phosphate from A3. He further stated that he is not responsible for the sub standard variety of fertilizer. A3 gave a reply on 19.2.2015 stating that the Single Super Phosphate was manufactured by following the norms and FCO specifications. Hence the complaint.

4

3.The complaint was taken on file for the offence under

Cl.19(1)(a) of Fertilizers (Control) Order 1985 punishable under Sec.7(1)

(a)(ii) of Essential Commodities Act against the accused.

4.When the accused appeared before the court, copies of all documents on which the complainant relied on were supplied to them.

5.When examined under Sec.239 Cr.P.C they denied having committed any offence. Thereafter, charge under Cl.19(1)(a) of

Fertilizer (Control) Order r/w.7(1)(a)(ii) of Essential Commodities Act has been framed read over and explained to them in Telugu for which they pleaded not guilty and claimed to be tried.

6.On behalf of the complainant P.Ws.1 to 5 were examined and Ex.P1 to P17 were marked.

7.After closure of evidence on behalf of complainant, the accused have been examined under Sec.313(1)(b) Cr.P.C regarding the incriminating material appearing against them in the evidence of P.W.1 to 5 which they denied.

8.Now the point for determination in this case is: Whether the complainant has proved the guilt of the accused beyond reasonable doubt for the offence under Sec.7(1) (a) (ii) of Essential Commodities

Act.

9.Heard the learned A.P.P for the complainant and the learned counsel for the accused and perused the material available on record.

10.While it is the contention of the learned A.P.P. that since the sample of fertilizer lifted from the premises of A1 has been found to be not of standard quality inasmuch as it did not conform to the specifications even after reanalysis, the accused are liable for punishable for contravention of Clause 19(1)(a) of Fertilizer Control 5

Order. It is the contention of the learned counsel for the accused that the prescribed procedure for lifting the sample has not been followed, that there is an in-ordinate delay in causing analysis of the second sample and that the author of the analysis or reanalysis report has not been examined which is fatal to the case of the complainant and hence the accused are entitle to be acquitted. In support of the above contention, the learned counsel for the accused relied upon the decision of our Hon’ble High Court in Visakha Agro Chemicals Private

Limited v. Fertilizer Inspector cum Assistant Director of

Agriculture Regular Vizag 1 .

11.Clause 19(a) of FCO, 1985(for short the order) deals with restriction of manufacture, sale and distribution of fertilizer. Clause 20 deals with powers of Inspectors. Clause 30 deals with time limit for analysis and communication of result. Under Clause 30 (1) where sample of a fertilizer has been drawn the same shall be dispatched along with a memorandum in Form-K to the laboratory for analysis within a period of 7 days from the date of its drawal. Under Sub Clause (2) the laboratory shall analyze the sample and forward the analysis report in Form-L within 30 days from the date of receipt of sample in the laboratory to the authority specified in the said memorandum. Under sub Clause (3) the authority to whom the analysis report is sent under

Sub Clause (2) shall communicate the result of the analysis to the dealer/manufacture etc. from whom the sample was drawn within 15 days from the date of receipt of the analysis report of the laboratory.

Schedule I of the Order deals with specifications of fertilizers. Schedule

II deals with procedure for drawal of samples of fertilizers. Under Part-9, while drawing the samples, the sample shall not be taken at a place exposed to rain/sun. The sampling instruments shall be clean and dry 1 1997(1) ALD Crl. 502 6 and to draw a representative sample, the contents of each bag selected for sampling should be mixed as thoroughly as possible by suitable means. Clause (2) deals with sampling from baged material. Clause- 2(i)( c ) deals with selection of bags for sampling and it says that the number of bags to be chosen from a lot shall depend upon the size of the lot. If size of the lot is 10 sample should be lifted from one bag. If the size of the lot is between 11-100, the sample should be drawn from two bags. Similarly if the size of the lot is between 101-200 the sample should be lifted from 3 bags and so on so forth. Clause 4(a) deals with weight of one sample.

12.P.W.1 is Mandal Agriculture Officer who lifted the samples from A1 dealer firm. He reiterated all the facts stated by him in the complaint as well as mediators report Ex.P2. The mediators report is silent about the size of the lot from which the samples were drawn. But in Form-J, Ex.P5, the stock position of the lot was shown as 50 MTs. Both Ex.P2 as well as the evidence of P.W.1 is silent from how many bags the samples were drawn. It is elicited from P.W.1 that the bags were sealed and there was no tampering of the bags. He admitted that if the sample of fertilizer is exposed to light and air, there is possibility of change in the values. He also admitted that while sample was drawn on 20.12.2014 it was analyzed by the analyst on 8.1.2015 i.e. within 17 days. He also admitted that the second sample was sent for reanalysis after 101 days.

No explanation is forthcoming for such delay. As cold be seen from Sub

Clause (3) of Cl. 30 any sample sent to analyst has to be analyzed and report should be sent to the dealer from whom the sample was drawn within 15 days from the date of receipt of the sample. It appears there is violation of the above said clause for conducting reanalysis of the second sample. It is also not known under what conditions the second sample was stored.

7

13. P.W.5 is the Assistant Director of Agriculture who filed the complaint after obtaining reanalysis report from State Fertilizer Control

Laboratory, Uttarakand, Dehradum. P.Ws. 2, 3 and 4 are the mediators said to be present at the time of lifting of the samples as well as seizure of records. P.W.3 stated in the cross examination that he does not know the contents of Ex.P2 except that the sample was drawn in his presence.

P.W.4 is one of the mediators present at the time of seizure of record, he stated that while he was standing on the road in Vetlapalem P.W.1 took him to A1 firm and seized the records. Admittedly neither the analyst who analyzed the first sample nor the analyst who examined the second sample and issued reanalysis report were examined to prove the contents of Ex.P6 and Ex.P17. In Visakha Agro Chemicals Limited case (cited supra) relied upon by the learned counsel for the accused, it was held that in view of the Sec.293 Cr.P.C. the non-examination of the analyst who examined the sample and issued report is fatal to the case of the complainant and in the absence of his examination, the report cannot be said to be roved and on that ground the accused are entitled to be acquitted. In the case on hand also the analyst who examined the second sample and issued the reanalysis report was not examined and hence on that ground alone and the following decision of our Hon’ble

High Court noticed above, the accused are entitled to be acquitted. The point is accordingly answered in the negative.

14.In the result, A1 to A4 are acquitted under Sec.248(1) Cr.P.C for contravention under Cl.19(1)(a) Fertilizer (Control) Order, 1985 punishable under Sec.7(1)(a)(ii) of Essential Commodities Act, 1955.

Dictated to the Stenographer, transcribed by him, corrected and pronounced by

me in Open court this the 28th day of April, 2017.

Sd/Sri.K.P.Balaji, II Addl. Judicial First Class Magistrate, Rajahmundry. Appendix of Evidence 8

Witnesses examined

for complainant.

P.W.1 Nalli Samuel Joh. P.W.2 M. Srinivas. P.W.3 N. Verraju. P.W.4 K. Venkateswara Rao. PW.5: C. Bhavani.

Witnesses examined for accused: None

Documents marked for complainant:

Ex.P1 is the attested true copy of the proceedings dt.12.2.2013 Ex.P2 is the mediators report. Ex.P3 is the Form No.P Ex.P4 is the Form No.K Ex.P5 is the Form ‘J’ Ex.P6 is the report of ADA, FCOL, Tadepalligudem. Ex.P7 is the another mediator report Ex.P8 is the Annexure-AA notice. Ex.P9 is the top up the statement. Ex.P10 is the safe custody orders. Ex.P11 is the stock register. Ex.P12 is the bunch of computarized bills.. Ex.P13 is the copy of show cause notice. Ex.P14 is the attested true copy of memo dt.8.1.2016 Ex.P15 is the reply dt.19.2.2015+ issued by A3 and A4. Ex.P16 is the reply dt.27.2.2015 by A1 and A2 for reanalysis. E.xP17 is the report of reanalysis issued by State Fertilizer Control Laboratory, Uttarkhand, Dehradum. Documents marked for accused: Nil.

No. of material objects marked: Nil. Sd/Sri.K.P.Balaji, II Addl. Judicial First Class Magistrate, Rajahmundry.

CALENDAR AND JUDGMENT

IN THE COURT OF THE II ADDITIONAL JUDICIAL FIRST CLASS

MAGISTRATE:: RAJAHMUNDRY.

Present:- Sri.K.P.Balaji, II Addl., Judl. First Class Magistrate, Rajahmundry.

Friday, the 28th day of April, 2017

C.C.No. 595 /2016

Between:

State Represented by Assistant Director of Agriculture (Regular) and Notified Authority FCO 1985 Kakinada. …Complainant.

And

A1:- Dealer Firm: Sri Gunturi Venkateswarulu, 9

M/s. Nava Bharat Ventures, Trading Division, Main road, Samalkot Village Samalkot Mandal.

A2:- Proprietor Sri Gunturi Venkateswarulu, Aed 55 years, S/o.Chanchayya, quarter NO.A6A, Sugar Factory colony, Samalkot.

A3:- Distributor & Manufacturer: M/s.Prathyusha Chemicals and Fertilizers Limited, Visakhapatnam, rep. by K. Appalanaidu (Chemist), aged 27 years, S/o.K. Suridemudu, Doggapeta, Kummapalli PO, Vepada Mandal, Vizianagaram.

A4:- K. Appalanaidu, M/s. Prathyusha Chemicals and Fertilizers Limited, Visakhapatnam. Presently known as Ranar Agro Chem Limited, Visakhapatnam. Rep. by K. Appalanaidu (Chemist), aged 27 years, S/o.K. Suridemudu, Doggapeta, Kummapalli PO, Vepada Mandal, Vizianagaram. ….Accused

Date of offence 20.12.2014 Date of complaint -- Appearance of accused -- Release on bail --- Commencement of trial 6.4.2017 Close of trial 19.4.2017 Sentence or order 28.4.2017 Explanation for delay ----

OffenceUnder Cl.19(1)(a) Fertilizer (Control) Order, 1985 punishable under Sec.7(1)(a)(ii) of Essential Commodities Act 1955

Plea of the accused Not guilty. Finding of the JudgeNot guilty.

Sentence or order:-

In the result, A1 to A4 are acquitted under Sec.248(1) Cr.P.C for the contravention under Sec.19(1)(a) Fertilizer (Control) Order, 1985 punishable under Sec.7(1)(a)(ii) of Essential Commodities Act 1955.

Sd/Sri.K.P.Balaji, II A.J.F.C.Magistrate Rajahmundry. Copy submitted to:

The Hon’ble. Chief Judicial Magistrate-Cum-Principal Senior Civil Judge, East Godavari, Rajahmundry for favour of information.

10

1

IN THE COURT OF THE SENIOR CIVIL JUDGE: AMALAPURAM

P RESENT : S RI K.P.BALAJI, S ENIOR C IVIL J UDGE , A MALAPURAM .

Tuesday, the 8th day of September, 2020.

ORIGINAL SUIT No.59/2019

B ETWEEN :

Gayatri Aqua Feeds, Amalapuram, represented by its Managing Partner Gottumukkala Venkata Satyanarayana Suryanarayana Vijaya Somaraju, son of Bhimaraju, Hindu, Aged 59 years, Business, ASR Nagar, Bhimavaram, West Godavari Dist. .. Plaintif

AND

1. Sri Vijaya Lakshmi Enterprises, rep. By Proprietor Kotipalli Ramakrishna, son of Satyam, Hindu, Business, Aged 54 years, Cheyyeru Agraharam, Katrenikona Mandal.

2. Gandham Ramesh Babu, son of Satyanarayana, Hindu, Inam, Aged 36 years,

Cheyyeru Agraharam, Kaetrenokona Mandal... Defendants

This suit is coming up before on 04.09.2020, for final hearing before me in the presence of Sri V.Nageswararao, Advocate for Plaintif, and the defendants 1 and 2 remained set exparte, and, upon perusing the material on record, this day, this court delivered the following:

:J U D G M E N T:

1.Suit for recovery of money due on an equitable mortgage, future interest and for costs.

2.The averments in the plaint are as follows :- The plaintif is a registered firm carrying on business in supply of aqua feeds and its supplements both on cash and credit basis to its customers having registered licence. The plaintif is maintaining accounts in its regular course of business and submitting returns to the

Commercial Tax Department and Income Tax Department. The plaintif is a dealer of the feed company of the water base limited and Devi feed and used to supply the stock to its customers in wholesale and retail manner. The 1st defendant is also dealing in business of supply of prawn feeds to the customers on retail basis to the farmers and inturn purchasing the reared prawn under the buy back policy. In that process the 1st defendant approached them and expressed his intention to 2 purchase the prawn feed from them on credit basis agreeing to the terms of the supply its payments etc., and opened an account with the plaintif in his business name Sri Vijayalakshmi Enterprises and started purchasing prawn feed and its supplements from them on credit basis. At the time of opening the account the plaintif specifically mentioned that it is condition precedent to give some immovable property as security for due payment of the credit accounts to supply the stocks on credit basis. On that the 1st defendant along with his son-in-law provided a security by way of deposit of title deeds and the 1st defendant was purchasing stock. As the stock purchased exceeds worth of lakhs and the security given is found insufficient, additional security is called for by the plaintif. Then the 1st defendant brought the 2nd defendant to give his property as security for the stock supplied in due course to the 1st defendant by plaintif. Based on the security given by the 2nd defendant the plaintif supplied the stock on credit basis to the 1st defendant from time to time and 1st defendant was paying certain amounts and they were given credit in the accounts. Ultimately when the 1st defendant verified the account with the plaintif an amount of Rs.45,69,066/- was found due after deducting all the payments made by him for the stocks supplied to the 1st defendant. The 1st defendant after verifying the account signed on the account copy acknowledging the outstanding amount due to the plaintif on 2.3.2017 and the 2nd defendant acknowledged the said amount as due by the first defendant to plaintif firm and the 2nd defendant deposited his title deed i.e., original of duplicate copy of registered Partition deed dt. 11.2.2013 with the plaintif firm at its shop situate in Amalapuram with an intention to create security thereon for the amounts due by the 1st defendant to the plaintif firm. Subsequently the first defendant made a payment of Rs. 4 lakhs on 12.9.2017, Rs. 5 lakhs on 15.12.2017, Rs.5 lakhs on 17.12.2017 and these amounts were also given credit to the account of the first defendant. Thereafter the first defendant got transferred an amount of Rs. 6 lakhs from its customer A.Satya Siva Krishna of Bhimavaram through his account on 3 11.5.2018 byway of RTGS transfer and this amount is also given credit to the 1st defendant’s account. There remains the principal sum of Rs. 25,69,066/- due.

Subsequently the plaintif demanded the defendants to repay the amount due to them. But they went on postponing on some pretext or the other. While so, the 2nd defendant approached the plaintif on 22.2.2019 and represented that he is going to discharge the amount within 15 days. Then the plaintif demanded the defendants to execute a memorandum of deposit of title deeds and accordingly the 2nd defendant executed a memorandum of deposit of title deeds on 22.2.2019 evidencing factum of equitable mortgage already created by deposit of title deeds.

Though the time of 15 days elapsed the defendants did not keep up their promise.

So the plaintif is entitled to recover Rs.25,69,066/- with interest thereon from 11.5.2018 till the date of realization. The plaintif also got issued a lawyer’s notice on 10.3.2019 demanding the defendants to pay the amount due. The notice sent to the 1st defendant was returned unserved and the 2nd defendant received the notice.

But he kept quiet. Hence the suit.

3.In spite of service of summons on the defendants they remained exparte.

4.Now the point for consideration in this suit is whether the plaintif is entitled to a decree as prayed for?

5.The plaintif examined himself as P.W.1 and Exs.A.1 to A.8 were marked through him. Ex.A.1 is the Memorandum of deposit of title deed dt. 22.2.2019 executed by the 2nd defendant in favour of the plaintif-firm. Ex.A.3 is the computerized account copy containing the signature of the 1st defendant. Ex.A.4 is the office copy of lawyer’s notice dt. 10.3.2019. Ex.A.5 is unserved postal cover of the 1st defendant.

4

6.P.W.1 in his chief examination affidavit reiterated the very same facts stated by him. Ex.A.1 is the memorandum of deposit of title deed executed by the 2nd defendant in favour of the plaintif. Ex.A.3 is the computerized account copy containing the signature of the 1st defendant in which it is categorically stated that on verification of accounts he is found due in a sum of Rs.45,69,066/- as on 2.3.2017 and thereafter made certain payments which were given credit to and deducted while filing the suit. A perusal of Ex.A.1 further shows that the 2nd defendant has created equitable mortgage in favour of the plaintif firm for payment of the amount due by the 1st defendant to the plaintif firm. Since the averments made in the plaint as well as in the chief examination affidavit of P.W.1 remained unchallenged or unrebutted, it must be held that the case of the plaintif stands proved and the plaintif is entitled to a preliminary decree as prayed for. The point is accordingly answered in favour of the plaintif.

7.In the result, the suit is decreed granting a preliminary decree for sale of the mortgaged property for Rs. 31,56,525/- with future interest on Rs.25,69,066/- at 12% p.a., from the date of suit till the date of decree and at 6% p.a., from the date of decree till the date of realization. Time for redemption is 3 months.

If the sale proceeds are not sufficient to satisfy the decree, the plaintif is at liberty to proceed against the 1st defendant personally.

Prepared, corrected and pronounced by me on this the 8th day of September, 2020.

SENIOR CIVIL JUDGE,

AMALAPURAM.

Appendix of Evidence. Witnesses Examined.

For Plaintif: For defendant: P.W.1: G.V.S.Suryanarayana Vijaja Somaraju None 5

Documents Marked.

For Plaintif: Ex.A1 is the Memorandum of deposit of title deed, dt:22.02.2019 executed by the 2nd defendant in favour of the plaintif firm.

Ex.A.2 is the registered partition deed dated 11.02.2013 executed among 2nd defendant and others.

Ex.A.3 is the computerized account copy signed by 1st defendant.

Ex.A.4 is the office copy of legal notice issued by plaintif’s firm to the defendants

dated 10.03.2019

Ex.A.5 is the unserved returned postal cover of 1st defendants

Ex.A.6 is the partnership deed executed by plaintif firm dated 24.12.2012

Ex.A.7 is the Firm Registration Certificate issued by Registrar of Firms, dated 22.11.2018

Ex.A.8 is the Resolution of plaintif firm dated 22.06.2018

For Defendants: Nil.

SCJ.

1

IN THE COURT OF THE SENIOR CIVIL JUDGE: AMALAPURAM

Present: Sri K.P.BALAJI, Senior Civil Judge, Amalapuram.

Friday, the 4th day of September,2020

H.M.O.P.No.6 of 2020

Between:

1) Rayudu Sai Durga, wife of Kranthi Kumar, D/o.Ch.VVSS Durgarao, Aged 23 years, Hindu, House Wife, D.No.5-33, Bonthuvaripalem, H/o.Nedunuru village, Ainavelli Mandal.

2) Rayudu Kranthi Kumar, son of Babji, Aged 35 years, Hindu, Private Employee, D.No.61-25/3-16, Eenadu colony, Ramalingeswara Nagar, Vijayawda Urban

.. Petitioners

And

Nil.. Respondent

This petition coming up before me on 26.08.2020, for final hearing in the presence of Sri P.Satyanarayana, advocate for the petitioners and having stood over till this day for consideration, this court delivered the following:

O R D E R

1.This is an application filed by the petitioners under Section 13B of

Hindu Marriage Act for passing a decree of divorce by mutual consent.

2.The averments in the petition are as follows:- The 1st petitioner is legally wedded wife of the 2nd petitioner. Their marriage was solemnized on 26.08.2018 at Rajula Kalynamandapam in Nedunuru village of Ainavelli mandal of

East Godavari District as per Hindu Rites and custom. It is an arranged marriage and it was consummated. After the marriage the 1st petitioner joined the 2nd petitioner in his house and lead marital life at Vijayawada and no children were born to them out of the wedlock. Both of them lived at Ramalingeswaranagar,

Vijayawada and lead the marital life up to 03.01.2019. Thereafter misunderstandings arose between them and they were not interested in each other for leading the marital life. For that reason the 2nd petitioner left the 1st petitioner and went to his parent’s house on 03.01.2019. Since then the 2nd petitioner lived in his house at Vijayawada and the 1st petitioner was living in her parents’ house at 2

Nedunuru village. The parents and elders of both sides tried to pacify the matter but in vain, but they could not lead the marital life. They are living separately from each other at their houses since 03.01.2019. There are no chances for reunion. For that reason they decided to obtain divorce. The 2nd petitioner agreed to pay

Rs.4,75,000/- to the 1st petitioner towards her permanent alimony. He paid an amount of Rs.2,00,000/- to the 1st petitioner by way of demand draft bearing

No.202319, dated 09.01.2020 drawn on Andhra Bank, Konkapalli Branch. He agreed to pay the balance amount of Rs.2,75,000/- at the time of final hearing of the case.

They agreed that no criminal or civil cases are pending against each other. Hence the petition.

3.After the application was filed, it was registered as HMOP and posted after six months statutory waiting period. Even then there was no settlement between them.

5.Now the point for consideration in this OP is whether the marriage of the petitioners dated 26.08.2018 has to be dissolved by a decree of divorce by mutual consent?

6.The petitioners examined themselves as P.Ws.1 and 2 respectively and

Exs.A.1 to A.3 were marked through P.W.1. Ex.A.1 is the wedding card, Ex.A.2 is the marriage photograph with CD and Ex.A.3 is the receipt for Rs.4,75,000/-. In their chief examination affidavits they reiterated the very same facts stated by them in the main OP.

7.According to them after the marriage both of them lived in

Ramalingeswaranagar, Vijayawada and lead marital life up to 3rd January,2019 and thereafter as ill feelings arose between them they are not interested in each to lead marital life, out of the wedlock no children were born to them, both of them are living separately from each other at their houses since 03.01.2019. It is also their contention the 2nd petitioner agreed to pay Rs.4,75,000/- to the 1st petitioner towards her permanent alimony, he paid an amount of Rs.2,00,000/- to the 1st 3 petitioner and also agreed to pay the balance amount of Rs.2,75,000/- at the time of final hearing of the case.

8.I have heard the learned counsel for the petitioners through Video

Conferencing.

9.Sec. 13B of Hindu Marriage Act deals with divorce by mutual consent.

According to this provision, on an application filed by the parties to the marriage, a decree of divorce by mutual consent may be granted on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

10.In Hitesh Bhatnagar v. Deepta Bhatnagar 1 it was held that unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent, otherwise, the expression ‘divorce by mutual consent’ would be otiose.

11.Thus it is clear from the above decision of the Hon’ble Apex Court that

before granting a decree of divorce by mutual consent, the court must be satisfied

that all the conditions enumerated in the provision are satisfied. Apart from the above conditions the court must also see for how long the parties have been staying apart and litigating, whether there are any other proceedings between them and whether the parties arrived at genuine settlement which takes care of alimony, or any other pending issues between them.

12.In the case on hand, the parties were married on 26.08.2018 about 2 years back. Both of them, it appears, lived together till 03.01.2019 (i.e.) for a period of about 4 months and thereafter started living separately and according to them, in spite of mediations they could not live together on 1AIR 2011 SC 1637 4 account of the misunderstandings that arose between them. Fortunately for them, no children were born to them out of the wedlock.

13.During the course of hearing, both of them stated that on account of the disputes that arose between them they are not able to live together, that they are living separately from 03.01.2019, that the marriage between them has been irretrievably broken down, that there are no chances of reunion and hence the marriage that was solemnized between them on 26.08.2018 may be dissolved by a decree of divorce on mutual consent. The 2nd petitioner agreed to pay Rs.4,75,000/- to the 1st petitioner towards her permanent alimony. He paid an amount of Rs.2,00,000/- to the 1st petitioner and also paid to pay the balance amount of Rs.2,75,000/- at the time of final hearing of the case.

14.In view of the above facts and circumstances, this court is fully satisfied that the marriage between the petitioners has been broken down irretrievably, that there are no chances of reunion between them and that the matter has been amicably and fully settled between the parties and that the marriage solemnized on 26.08.2018 between them can be dissolved by a decree of divorce on mutual consent under Sec. 13B of the HMA Act. The point is accordingly answered.

15.IN THE RESULT, the petition is allowed and the marriage between the petitioners held on 26.08.2018 is dissolved by a decree of divorce by mutual consent under Section 13B of the Hindu Marriage Act, with effect from the date of this order.

Dictated to Stenographer, transcribed by him, corrected and

pronounced by me on this the 4th day of September,2020.

Senior Civil Judge,

Amalapuram.

5

APPENDIX OF EVIDENCE

Witnesses examined

For Petitioner:

PW.1: Rayudu Sai Durga PW.2: Rayudu Kranthi Kumari

For Respondent: None

Documents marked

For Petitioner:

Ex.A1: Wedding card EX.A2: Marriage photograph (1 in number) along with CD Ex.A3: Reeipt issued for Rs.4,75,000/- to the 1st petitioner.

For Respondent: Nil

S.C.J.

1

IN THE COURT OF THE SENIOR CIVIL JUDGE: AMALAPURAM

Present: Sri K.P.BALAJI, Senior Civil Judge, Amalapuram.

Friday, the 4th day of September,2020

H.M.O.P.No.24 of 2020

Between:

1) Tipparthi Dhanalakshmi, wife of Venkata Reddy, Aged 28 years, D/o.Chodisetti Ramanna, R/o.D.No.5-226, G.Vemagvaram Village, I.Polavaram Mandal.

2) Tipparthi Venkata Reddy, son of Ramireddi, Aged 30 years, R/o.D.No.2-73, Tirkapalli Village, Mahaboob Nagar Dist, Telangana State.

.. Petitioners

And

Nil.. Respondent

This petition coming up before me on 26.08.2020, for final hearing in the presence of Sri C.V.Suryanrayana, advocate for the petitioners and having stood over till this day for consideration, this court delivered the following:

O R D E R

1.This is an application filed by the petitioners under Section 13B of

Hindu Marriage Act for passing a decree of divorce by mutual consent.

2.The averments in the petition are as follows:- The 1st petitioner is legally wedded wife of the 2nd petitioner. Their marriage took place on 27.12.2018 as per Hindu Rites and Custom at the house of the 1st petitioner – G.Vemavaram village, I.Polavaram Mandal. After the marriage the 1st petitioner joined the 2nd petitioner and the marriage was consummated. Both of them started leading marital life at the house of 2nd petitioner. Both of them lived happily for one month and thereafter ill feelings started between them. Since then they did not show any love and affection towards each other. Their ill-feelings were to such an extent that they were unable to live under one roof. Since 01.02.2019 the 1st petitioner has been living at her parents’ house. Out of wedlock one female child by name Roja

Ramani was born to them. Though they waited for all these days with a fear in the

Society as they belong to respectable families, but ill feelings developed and they 2 were unable to adjust with each other even after their best efforts. The elders and parents of both petitioners tried for conciliation which did not fructify. The petitioners lastly resided at G.Vemavaram village of I.Polavaram Mandal. There is no chance of reunion. Hence they decided to live separately from each other. There may not be any chances to change their minds. Their future will be in better position than the present if the petitioners take divorce. As per the settlement in the presence of elders the 2nd petitioner agreed to give Rs.2,00,000/- to the 1st petitioner and their daughter towards permanent alimony. It was further agreed that the said amount has to be given to the 1st petitioner on the date of granting of divorce. She agreed to give up her right of future maintenance from the 2nd petitioner and 1st petitioner relinquished her right of maintenance and other legal rights from the 2nd petitioner. The house articles of the 1st petitioner were already given by the 2nd petitioner. The 1st petitioner is not entitled for the estate if any of the 2nd petitioner. Hence the petition.

3.After the application was filed, it was registered as HMOP and posted after six months statutory waiting period.

4.Inspite of the statutory wait period of six months and conciliation there was no settlement between the parties.

5.Now the point for consideration in this OP is whether the marriage of the petitioners dated 27.12.2018 has to be dissolved by a decree of divorce by mutual consent?

6.The petitioners examined themselves as P.Ws.1 and 2 respectively and

Exs.A.1 and A.2 were marked through P.W.1. Ex.A.1 is the marriage invitation card and Ex.A.2 is the marriage photographs (3 in number) with CD. In their chief examination affidavits they reiterated the very same facts stated by them in the main OP.

3

7.According to them after the marriage both of them lived happily for one month and thereafter as ill feelings started between them they have been living separately and that out of the wedlock one female child was born to them. It is also their contention that as full and final settlement as claim of the maintenance the 2nd petitioner agreed to pay Rs.2,00,000/- to her. During the course of hearing the 1st petitioner stated that she has received the amount of Rs.2,00,000/- from the 2nd petitioner.

8.I have heard the learned counsel for the petitioners through Video

Conferencing.

9.Sec. 13B of Hindu Marriage Act deals with divorce by mutual consent.

According to this provision, on an application filed by the parties to the marriage, a decree of divorce by mutual consent may be granted on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

10.In Hitesh Bhatnagar v. Deepta Bhatnagar 1 it was held that unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent, otherwise, the expression ‘divorce by mutual consent’ would be otiose.

11.Thus it is clear from the above decision of the Hon’ble Apex Court that

before granting a decree of divorce by mutual consent, the court must be satisfied

that all the conditions enumerated in the provision are satisfied. Apart from the above conditions the court must also see for how long the parties have been staying apart and litigating, whether there are any other proceedings between them and whether the parties arrived at genuine settlement which takes care of alimony, custody of the child or any other pending issues between them.

1AIR 2011 SC 1637 4

12.In the case on hand, there is no dispute about the relationship between the parties and that out of the wedlock a female child was born to them. It is also seen from the affidavits filed in lieu of chief examination that they have been living apart from 1st Febraury,2019 due to the disputes that arose between them. They further stated that there are no chances of reunion as the marriage has been irretrievably broken down and that the 2nd petitioner also agreed to pay

Rs.2,00,000/- to the 1st petitioner in full and final settlement of alimony. Thus it is clear from the above facts and circumstances that the parties have been living separately for more than one year prior to the filing of OP that there are no chances of reunion as the marriage has been irretrievably broken down and that there was a genuine and amicable settlement for payment of alimony to the 1st petitioner and child inasmuch as she admits to have received Rs.2,00,000/- from the 2nd petitioner.

In that view of the matter there should not be any impediment in granting decree of divorce by mutual consent.

13.IN THE RESULT, the petition is allowed and the marriage between the petitioners held on 27.12.2018 is dissolved by a decree of divorce by mutual consent under Section 13B of the Hindu Marriage Act, with effect from the date of this order.

Dictated to Stenographer, transcribed by him, corrected and

pronounced by me on this the 4th day of September,2020.

Senior Civil Judge,

Amalapuram.

APPENDIX OF EVIDENCE

Witnesses examined

For Petitioner:

PW.1: T.Dhanalakshmi PW.2: T.Venkata Reddy

For Respondent: None

Documents marked

For Petitioner:

Ex.A1 Marriage invitation card. EX.A2: Marriage photographs (3 in number) along with CD

For Respondent: Nil

5

S.C.J.