K. Syambabu

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE ::

PALAKOL

Present : - SRI K.SYAM BABU

Principal Junior Civil Judge

Thursday, this the 27th day of April, 2017

C.C.No.77 of 2016

(Cr. No.153/2015 of Palakol Rural Police Station)

Between:

State: Sub Inspector of Police,

Palakol Rural Police Station...Complainant.

And

Pesangi Satti Babu, S/o.Tatayya @ Venkata Reddi, Age 35 years, Vaddilu, Sankaraguptham, Village of Malkipuram Mandal, Driver of Auto bearing No.AP 05 TX 9174.

..Accused.

This case is having come on 26.04.2017 for final hearing before me in the presence of the learned Assistant Public Prosecutor for the

Prosecution and of Sri R.Deva Raju, Advocate for accused and having stood over this day for consideration, this court made the following:

J U D G M E N T

1.The Sub Inspector of Police, Palakol Rural Police Station filed a charge sheet against the accused in Cr.No.153/2015 of Palakol Rural

Police Station for the offences punishable under Sections 337, 338, 304-

A of Indian Penal Code (herein after referred as IPC).

2. The brief facts of the charge sheet in nutshell are: That the complainant/PW.1 is resident of Lanka Gannavaram village of

P.Gannavaram Mandal, East Godavari District. The deceased, PW.1,

PW.2 and PW.3 are close friends. On 25.12.2015 at about 8.00 PM, he and his friends PW.1, PW.2 and PW.3 were proceeding from Chinchinada to Palakol on the CBZ extreme motorcycle bearing No.AP 37 BF 4350 for

Tiffin, the PW.1, PW.2 and PW.3 are pillion riders and the Koppineedi Sai is rider of the motorcycle after completion of work, they were returned to Chinchinada village when they reached Digamarru bypass, Kothapeta village area nearby Penumatsa Sai Raju vacant sites opposite on the

Chinchinada to Digamarru NH 214 road at that time at about 10.45 PM 2 on their opposite direction one auto bearing No.AP 05 TX 9174 driver/accused Pesangi Satti Babu, S/o.Tatayya, Age 35 years, Vaddiulu,

Sankaraguptham, Village of Malkipuram Mandal drove his vehicle in a rash and negligent manner dashed them, the deceased sustained both thighs fracture and head injury and died at spot and PW.1 sustained injuries on Chin and right hand index and thumb fingers bleeding injuries and PW.2 sustained both legs keens and both sides jaws multiple injuries and PW.3 sustained forehead, head, right eye and both knees bleeding injuries and the PW.10 auto passenger sustained right thigh fracture and right foot fracture and left side ribs fracture injuries and they were shifted to the Government hospital, Palakol for treatment. PWs.1 to 3, 7, 12 are identified the accused, they are categorically stated that the crime vehicle driver name is Pesangi Satti

Bbu. The PWs.7, 12, Lw.13/Koppineedi Balaji, LW.14/Petchetty Suri

Venkata Durga Prasad @ Suri are directed witness and PWs.4,5,6,8,

LW.7/Unisetty Gopi are blood relatives of the deceased. Therefore, the accused is liable for punishment under Sections 337, 338, 304-A of

Indian Penal Code. Hence, the charge.

3. Taken cognizance against the accused for the offences punishable under sections 337, 338, 304-A of Indian Penal Code on 30.3.2016.

4.After appearance of the accused, copies of the documents were furnished to him as required under section 207 Cr.P.C on 21.4.2016.

5. On 18.7.2016, the accused was examined u/s 251 Cr.P.C., and the contents of the accusation leveled against him, read over and explained to him in Telugu, for which, the accused denied and pleaded not guilty and claimed to be tried. Thus, the case was posted for trial.

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6.In order to prove its case, the prosecution has examined

PWs.1 to PW.16 and got marked Exs.P-1 to P-14. No witnesses were examined and no documents were marked by the defence.

7.After closure of the prosecution evidence, on 19.4.2017, the accused was examined under section 313 Cr.P.C. by explaining the incriminating material deposed against him by the prosecution witnesses in question form in Telugu, for which, he has denied, pleaded not guilty and reported no defence evidence.

8. Heard arguments of the learned Assistant Public Prosecutor and the learned defence counsel.

9. Upon considering the material on record and submissions made by the learned A.P.P., and counsel for the defence, the point for determination is: “Whether the prosecution is able to bring home

the guilt of the accused under Sections 337, 338, 304-A of

Indian Penal Code beyond reasonable doubt”?

POINT:-

10.In order to prove the offences punishable under Sections 337, 338,304-A of Indian Penal Code, the prosecution has to establish that the accused being the driver of crime vehicle drove it in a rash and negligent manner and caused the accident and due to that accident the person by name Koppineedi Sai was expired and PWs.1 to 3 sustained injuries.

11.The PWs.1 to 3 are injured persons in this case. According to the evidence of PW.1, on 24.12.2015, the Pws.1 to 3 and deceased

Koppineedi Sai came to Palakol on CBZ extreme motorcycle bearing

No.AP 37 DF 4350 and after having chat, they returned to Chinchinada and while, they were returning back to Chinchinada and when they reached near Sariraju vacant site situated near the road, then, the crime vehicle auto came in opposite direction in rash and negligent manner and hit the motorcycle. The PW.1 stated that the incident was occurred at 10.45 PM. The evidence of PWs.2 and 3 is also on the same lines with 4 regard to the manner of accident. The PW.1 clearly stated that their motorcycle was also badly damaged and one Ambulance came there and shifted them to Government hospital and later, they have taken treatment at a private hospital and the rider of motorcycle Koppineedi

Sai was died instantaneously in the said incident. The Pw.1 identified the accused as a driver of crime vehicle auto and the PW.1 further stated that the accused also sustained injuries in the said incident.

12.The Pws.1 to 3 evidence is on the same lines except minor discrepancies with regard to the incident occurred prior to the accident.

The evidence of PWs.1 to 3 collectively shows that the deceased

Koppineedi Sai was rider and the Pws.1 to 3 were pillion riders of the motorcycle, which was involved in the accident. The PW.1 evidence discloses that the registration number of motor cycle is AP 37 DF 4350, but as per the evidence of PW.2, the registration number of motorcycle is AP 37 DF 4053. The PW.3 not stated the registration number of motorcycle. As per the evidence of Motor Vehicle Inspector, he has inspected the crime vehicle auto bearing registration No.AP 05 TX 9174.

The evidence of Investigation Officer discloses that the other vehicle motorcycle, which was involved in the accident was not sent for inspection by the Motor Vehicle Inspector. The PW.14 Investigation

Officer evidence disclosed that both the vehicles involved in the accident were lying at the scene of offence and during chief- examination of PW.14, he stated that the registration number of motorcycle is AP 37 BF 4350 and also stated that both the vehicles were badly damaged. During the evidence of PW.14, it was elicited that during the investigation of PW.14, the Pws.1,7 and 12 stated that the registration number of motorcycle is AP 37 BF 4540. The PW.15 is

Village Revenue Officer who was present at the time of inquest and observing the scene of offence deposed that the motorcycle bearing

No.AP 37 BF 4350 was also present at the scene of offence.

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13.So, on considering the evidence of prosecution witnesses, there is a discrepancy with regard to the registration number of motorcycle, which was involved in the accident. If the Investigation

Officer got examined the said motorcycle by Motor Vehicle Inspector, then, the discrepancy among the versions of prosecution witnesses with regard to the registration number of motorcycle may not be a material one but the Investigation Officer failed to get examine the motorcycle by Motor Vehicle Inspector and as such it is not possible to the Court to know about the condition of the said motorcycle and as such it is fatal to the case of prosecution.

14.The PW.4 is the grandfather of deceased Koppineedi Sai and his evidence disclosed that the person by name Koppineedi Sai was died in the accident and it is not a disputed fact.

15.The PW.5 deposed the evidence like that of an eye witness to the incident and his stated that the auto which was coming from opposite direction dashed the motorcycle of PWs.1 to 3 and he further stated that the motorcycle of Pws.1 to 3 crossed the motorcycle of PW.5 and later, the accident was occurred. Though he stated that he has seen the accident but he is failed to identify the driver of the crime vehicle and clearly stated that he has not seen the auto driver. But during the cross-examination, the PW.5 clearly stated that he cannot say how the accident was happened and on whose negligence it was happened.

16.The PW.6 evidence also disclosing about the death of

Koppineedi Sai in the accident and the sustaining of injuries by PWs.1 to 3 in the said accident and except that, nothing was elicited to incriminate the accused.

17.The PW.7 deposed like an eye witness to the incident and he clearly stated that the accident was occurred due to the rash and negligent driving of auto driver. During the cross-examination, the PW.7 stated that the injured person stated to the PW.7 that the deceased is 6 the rider of motorcycle. So, the evidence of Pw.7 is raising a reasonable doubt about the witnessing of accident. If really, the PW.7 witnessed the accident, certainly the PW.7 should be in a position to speak about the particulars of rider of motorcycle but stated that he came to know through the injured persons as to the particulars of the rider of motorcycle at the time of accident.

18.The PW.8 is the maternal uncle of deceased Koppineedi Sai and his evidence is speaking about the death of Koppineedi Sai in the accident, which was occurred on 24.12.2015.

19.The PW.7 is the owner of crime vehicle auto bearing No.AP 05 TX 917. The evidence of PW.9 is that the accused took the auto on hire and it was informed to the PW.9 by the accused that the accident was occurred and the accused was also sustained injuries in the said accident. The PW.9 stated that he handed over the accused to the police one week after the accident. The Pws.1 to 3 and 9 stated that the accused also sustained injuries in the accident, but the investigation does not disclose about the injuries of accused. Though the injuries of accused is not a material one to prove the case against him but in view of the circumstances that the accused is also sustained injuries in the accident, then, the prosecution has to prove the said injuries and then, it will corroborate case of prosecution. But in the present case, there is no record with regard to the injuries of accused and as such it is raising a reasonable doubt about the indentify of accused as a driver of crime vehicle at the time of accident. Though the Pws.1 to 3 and PW.7 identified the accused as a driver of crime vehicle but their evidence discloses that the accused also sustained injuries in the accident. But there is no record to show about the injuries of accused. Hence, the oral testimony of Pws.1 to 3 is raising a reasonable doubt about the identity of the accused because the incident was occurred during the night hours.

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20.The PW.10 evidence is not useful to the evidence of prosecution and he turned hostile. The Pw.11 is the medical officer who conducted postmortem examination over the dead body and issued postmortem certificate.

21.The PW.12 is eye witness to the incident but he turned hostile to the evidence of prosecution. The Pw.13 is Motor Vehicle

Inspector and his evidence discloses that the crime vehicle auto bearing

No.AP 05 TX 9174 auto rickshaw was inspected by him and he found some damages over the said crime vehicle and issued certificate to that effect. The evidence of PWs.13 and 14 shows that the second vehicle, which was involved in the accident was not inspected by Motor Vehicle

Inspector and the condition or the said particular vehicle was not brought on record. If two vehicles were involved in the accident, then, it is necessary to know about the condition of both vehicles but in the present case, the second vehicle involved in the accident is not get examined by Motor Vehicle Inspector and as such it is raising a reasonable doubt with regard to the condition of the said vehicle.

Moreover, there is a discrepancy with regard to the registration number of motorcycle and as such the non-examination of said motorcycle by

Motor Vehicle Inspector and non-production of the same before the

Court is fatal to the case of the prosecution.

22.The Pw.16 is medical officer and his evidence disclosed that he examined the Pws.1 to 3 on 24.12.2015 at 11.30 PM and found some injuries and issued certificates to that effect. So, the evidence of Pw.16 shows that the Pws.1 to 3 sustained injuries on the night of 24.12.2015 and as such the fact with regard to the accident is proved.

23.Though the Pws.1 to 3 clearly stated that the accident was occurred due to the rash and negligent driving of crime vehicle but mere saying the words that the accident was occurred between the rash 8 and negligent driving of the accused will not prove the case against the accused.

24.According to the evidence of Pws.1 to 3, they were four in number and they were riding on motorcycle and it is more than the capacity of motorcycle and as such the suggestion of defence counsel to these witnesses with regard to the negligent driving of rider of motorcycle is seems to the probable one. Though a suggestion to the witness is not an evidence but in view of circumstances about the non- production motorcycle before the Court, non-examination of the motorcycle by Motor Vehicle Inspector and the non-stating of specific manner of accident by the Pws.1 to 3 is raising a reasonable doubt. It is impossible for the rider of the motorcycle to control the same, if it is in high speed.

25.Under the aforesaid reasons, this Court is of opinion that the case of prosecution with regard to the identity of the accused is not proved beyond all reasonable doubt because though the witnesses

Pws.1 to 3 stated that the driver of crime vehicle auto sustained injuries, but the investigation officer failed to produce any evidence with regard to the injuries of accused. So, it is raising a reasonable doubt about the identity of the accused.

26.The evidence of Pw.9 is that the accused has taken the crime vehicle auto on hire and informed to the Pw.9 that the said auto was met with an accident but it cannot be treated as a conclusive evidence because the prosecution failed to produce any evidence with regard to the injuries of the accused. The evidence of inmates of auto was also not produced by the prosecution and it is also fatal to the case of prosecution in proving the case with regard to the rash and negligence of accused.

27.On considering the rough sketch, it is marked as Ex.P9, which shows that the blood stains were on the extreme right of the road 9 to the direction in which the motorcycle was proceeding. So, it seems that the motorcycle went to the right side of road and dashed the auto.

Then, it cannot be said that it is due to the rash and negligent driving of driver of crime vehicle. It is also necessary to know the breaking system of motorcycle, which was involved in the accident but it is not get examined by the Motor Vehicle Inspector and as such it is fatal to the case of prosecution. Hence, this Court is of opinion that the case of the prosecution is raising a reasonable doubt about the condition of motorcycle, registration number of motorcycle and the rash or negligence of accused and as such the point of “Whether the prosecution is able to bring home the guilt of the accused under

Sections 337, 338, 304-A of Indian Penal Code beyond reasonable doubt” is decided in favour of accused and against the prosecution and thereby, the accused is entitled for acquittal. Accordingly, the point is answered.

28.In the result, the accused is found not guilty for the offences punishable under sections 337, 338, 304-A of Indian Penal Code and he is acquitted under section 255 (1) Cr.P.C. The bail bonds as well as the sureties of the Accused shall be in force for a period of six months.

Dictated to the personal Assistant, transcribed by him, corrected

and pronounced by me in open Court, this the 27th day of April, 2017.

PRINCIPAL JUNIOR CIVIL JUDGE,

PALAKOL

APPENDIX OF EVIDENCE

Witnesses examined

FOR PROSECUTION: FOR DEFENCE:

P.W.1: Kadali Chaitanya - NONE- P.W.2:Guttula Ravi Kishore P.W.3:Malkipuram Lakshmana Rao P.W.4:Koppineedi Pulla Rao P.W.5:Katari Rambabu P.W.6:R.Sai Babu P.W.7:Dasari Lazar 10

P.W.8:Dodda Rama Rao P.W.9:Pilli Venkata Ramana P.W.10:Pemmadi Siva Sankar P.W.11: K.Rama Rao P.W.12:Pamula Venkanna Babu P.W.13:B.S.Srinviasa Nayak P.W.14:Pitta Raju P.W.15:Balla Raju P.W.16:Cherukuri Suresh Babu

DOCUMENTS MARKED

FOR PROSECUTION:

Ex.P.1/25.12.2015:Statement of PW.1 Ex.P.2/7.1.2016:161 Cr.P.C statement of PW.10 Ex.P.3/26.12.2015:Postmortem Certificate Ex.P.4/25.12.2015:161 Cr.P.C statement of Pw.12 Ex.P.5/30.1.2016 :Motor Vehicle Inspector Ex.P.6/25.12.2015:Hospital Intimation Ex.P.7/25.12.2015:Original First Information Report Ex.P.8/25.12.2015:Scene Observation Report Ex.P.9/25.12.2015:Rough Sketch Ex.P.10/--:Six photographs along with CD Ex.P.11/25.12.2015:Inquest Report Ex.P.12/27.2.2016:Wound certificate Ex.P.13/27.2.2016:Wound certificate Ex.P.14/27.2.2016:Wound Certificate

FOR DEFENCE : N I L

MATERIAL OBJECTS MARKED

--NIL--

P.J.C.J. PKL

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IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE :: PALAKOL

PRESENT: SRI K.SYAM BABU

Principal Junior Civil Judge

Monday, this the 24th day of April, 2017

ORIGINAL SUIT NO: 171 of 2015

Between:

Gottumukkala Satyanarayana Raju, S/o.Konda Raju, Age 55 years, Male, Hindu, Agriculturist, Chitraicheruvugattu, Palakol Mandal, West Godavari District. PJCJC. …Plaintiff

And

1. Margani Prasad, S/o.Late Adinarayana, Age 47 years, Male, Hindu, Business, D.No.34-5-7/c, Yellamandayya Street, Kasturibai peta, Near Pushpa Hospital, Venkateswarapuram, Vijayawada, Krishna District. VJCJC.

2. Margani Prasanna, W/o.Prasad, Age 40 years, Female, Hindu, Business, Yellamandayya Street, Kasturibai peta, Near Pushpa Hospital, Venkateswarapuram, Vijayawada, Krishna District. VJCJC.

...Defendants

This suit is coming on 20.4.2017 for final hearing before me in the presence of Sri V.Vijaya Vardhan, Advocate for the plaintiff and of

Sri A.T.V.Das, advocate for the defendants and upon hearing the arguments of both sides and perusing the material papers on record and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1.The suit filed by the plaintiff for recovery of money basing on the promissory note executed by the defendants for an amount of

Rs.1,50,000/- on 21.7.2013 along with interest.

2.The averments of the plaint in brief are as follows: That the defendants borrowed an amount of Rs.1,50,000/-from the plaintiff at

Palakol on 21.7.2013 for their necessities and executed the suit promissory note in favour of the plaintiff agreeing to repay the same with interest Rs.1-50ps per month per hundred and immediately after the execution of promissory note, they received the consideration.

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Subsequent to the execution of the pronote, the defendants did not choose to repay anything towards the above promote debt even after several demands made by the plaintiff. Thereby, the plaintiff got issued a legal demand notice to the defendants on 27.10.2015 demanding them to discharge the entire debt with interest. The defendants received the said notice on 30.10.2015 and did not come forward either to discharge the debt or reply to the said demand notice. Hence, he is constrained to file the suit for recovery of suit amount. Hence, the suit.

3.The defendants filed written statement by denying the averments of the plaint and also contended that they did not borrow any amount from the plaintiff and never executed any pronote in favour of him. Previously, the 1st defendant and his brothers are joint family, but he lost his two kidney in six years back and he wants lakhs of rupees to transplantation of his kidneys and he requested his family members to arrange money by sell his share in jointly properties and immediate necessity he took an amount of Rs.45,000/- from his elder brother Margani Raja. In the meanwhile, he obtained the defendants signatures on empty pronote in or about 2009 to witness of the same, subsequently, the 1st defendant shifted his family to Vijayawada he get treatment by regular dialysis. The plaintiff brought existence the suit pronote with the instigation the 1st defendant elder brother with collusive of the alleged attestors and scribe who are close associates or kith and kin of them. The plaintiff got issued a notice on 27.10.2015 to them, but which was got issued with false allegations. Immediately, after receipt of the said notice, the 1st defendant sent his wife the 2nd defendant to his elder brother, therefore, the 2nd defendant approached him asked about issuing false notice in benamy name, but he could not respond properly, therefore, she disputed before her 3 mother-in-law by called the plaintiff and the 1st defendant elder brother, but they did not respond to present her mother-in-law subsequently got filed the false suit and prayed for dismissal of the suit.

4.Basing on the above pleadings, this Court framed the following issues on 9.3.2016:

1.Whether the suit pronote is true, valid and binding on the defendants or not?

2.Whether the suit pronote is supported by consideration or not?

3.Whether the plaintiff is entitled for recovery of suit amount from the defendants as prayed for?

4.To what relief?

5.On behalf of plaintiff, PWs.1 to 3 are examined and got marked Exs.A.1 to A.4. On behalf of defendants, DW.1 is examined and no documents are marked

6.Heard arguments on both sides.

7.Issue No.1:

1.Whether the suit pronote is true, valid and binding on the defendants or not?

According to the pleadings of the plaintiff, the defendants jointly borrowed an amount of Rs.1,50,000/- on 21.7.2013 for their family necessities and agreed to repay the same along with interest @Rs.1- 50ps per month per hundred at yearly rests and executed the pronote after receipt of consideration and inspite of several demands, the defendants failed to repay the amount and on that, the plaintiff got issued a notice to the defendants on 27.10.2015 and the defendants received the said notice and kept quiet without discharging the debt.

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8.The plaintiff is examined as PW.1 and his chief-examination affidavit is the reiteration of his pleadings about the borrowing of money by the defendants and execution of suit pronote and with regard to issuance of notices to the defendants.

9.According to the pleadings of the defendants, they never borrowed any amount from the plaintiff and the suit pronote is a created one.

10.The 1st defendant is examined as DW.1 and his chief- examination affidavit also like that of his pleadings.

11.During the cross-examination of PW.1, the entire cross- examination went on with regard to the place of execution of pronote, date of execution of pronote and the presence of persons at the time of execution of the pronote. During the cross-examination of PW.1, the

PW.1 stated that the suit pronote was executed at 12.00 noon at the house of plaintiff. The attestor of Ex.A.1 pronote is examined as PW.2.

During the evidence of PW.1, the suit pronote is marked as Ex.A.1,

Office copy of the registered notice is marked as Ex.A.2, Postal acknowledgments of defendants 1 and 2 are marked as Exs.A.3 and

A.4.

12.The PW.2 is the attestor of Ex.A.1 pronote and his chief- examination discloses that he and one Naga Raju Rama Raju acted as attestors for the suit pronote and one Tatraju Srinivas was the scribe of suit pronote.

13.On perusal of Ex.A.1 pronote, the oral testimony of PW.2 is supporting the facts with regard to the names of attestors. The PW.2 also stated that the suit pronote was executed at the house of the plaintiff. The PW.2 clearly stated that the suit pronote transaction was occurred in the house of plaintiff at 12.00 noon. So, there is no contrary versions in between PWs.1 and 2 with regard to time of 5 execution of Ex.A.1 pronote and the place of execution of the pronote by defendants.

14.The scribe of Ex.A.1 pronote is examined as PW.3 and his evidence also corroborated the evidence of PWs.1 and 2 with regard to the borrowing amount by the defendants, execution Ex.A.1 pronote by defendants. The Pw.3 identified his signatures on the Ex.A.1 pronote and clearly stated that it is scribed by him on 21.7.2013. During the cross-examination of PW.3 also it was elicited that the Ex.A.1 pronote was executed at 12.00 noon on 21.7.2013 at the house of hall of PW.1.

The PW.3 clearly stated that at the time of Ex.A.1 transaction, the

PWs.1 and 2, defendants 1 and 2 and one Naga Raju Rama Raju were present. The said oral testimony of PW.3 is supported with the evidence of PWs.1 and 2 and the contents of Ex.A.1 pronote. The oral testimony of PWs.1 to 3 is clearly supporting the contents of Ex.A.1 pronote.

15.During the cross-examination of PWs.1 to 3 some questions were made to these witnesses in order to dilute their evidence with regard to execution of Ex.A.1 pronote on 21.7.2013. But on considering the evidence of PWs.1 to 3, nothing was elicited to disbelieve the evidence of PWs.1 to 3 because the PWs.1 to 3 clearly stated that the suit pronote Ex.A.1 transaction was occurred in the house of Pw.1 at 12.00 noon on 21.7.2013. All these witnesses clearly stated that the said transaction was occurred in the hall of the house of the Pw.1. So, this Court is of opinion that the evidence of PWs.1 to 3 clearly established the execution of Ex.A.1 pronote on 21.7.2013 at 12.00 noon at the house of PW.1/plaintiff.

16.During the evidence of DW.1/1st defendant stated that he was not present at the house of plaintiff on 21.7.2013 and he was on treatment of dialysis in Vijaya Super Speciality Hospital, Vijayawada.

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During the cross-examination of DW.1, a suggestion was made to the

DW.1 that he has not undergone dialysis treatment on 21.7.2013 and the said suggestion was denied by the DW.1. in order to prove the fact whether the DW.1 was taking treatment on 21.7.2013 at Vijaya Super

Speciality Hospital, Vijayawada, the burden is on the defendants.

17.According to Section 102 of Indian Evidence Act, the burden is on the party who would fail if no evidence at all were given on either side. So, the burden is on the defendants to prove that he was undergoing treatment on 21.7.2013 in Vijaya Super Speciality

Hospital, Vijayawada. Except, the oral testimony of DW.1, no evidence is placed before the Court to prove that the DW.1 was undergoing treatment on 21.7.2013 at Vijaya Super Speciality Hospital,

Vijayawada. If really, the DW.1 was undergoing treatment at Vijaya

Super Speciality Hospital, Vijayawada on 21.7.2013, there is a possibility of filing medical certificate to that effect. But there is no reason assigned by DW.1 for non filing any medical certificate or record to show that he was undergoing treatment in Vijaya Super

Speciality Hospital, Vijayawada on 21.7.2013. Hence, the burden to prove the fact with regard to the treatment of DW.1 at Vijaya Super

Speciality Hospital, Vijayawada is not discharged by the defendants.

18.Under these circumstances, this Court is of opinion that the evidence of PWs.1 to 3 clearly establishes the execution of Ex.A.1 pronote. Hence, issue No.1 is answered in favour of the plaintiff and against the defendants.

19.Issue Nos.2 and 3:

2.Whether the suit pronote is supported by consideration or not?

3.Whether the plaintiff is entitled for recovery of suit amount from the defendants as prayed for?

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The pleadings of the plaintiff with regard to issue No.2 is that on receipt of consideration under Ex.A.1 pronote, the defendants executed the Ex.A.1 pronote. The attestor and scribe of Ex.A.1 pronote are examined as PWs.2 and 3 and their evidence also supported the version PW.1 with regard to passing of consideration in their presence.

So, the oral evidence of Pws.1 to 3 clearly supported the contents of

Ex.A.1 pronote with regard to passing of consideration under Ex.A.1 pronote.

20.The 1st defendant adduced evidence as DW.1 and he stated that he has not received any consideration under Ex.A.1 pronote. The evidence of DW.1 further goes to show that he has undergone treatment on 21.7.2013 and the treatment certificate issued by Dr.G.Sarath Babu, Department of Nephrololgy, Vijaya Super

Speciality Hospital, Vijayawada is filed into the Court. But on considering the record, no document is marked through the DW.1 on behalf of the defendants. Mere saying the words that he was undergoing treatment on 21.7.2013 is not sufficient and not substantiated by a cogent evidence. Hence, the oral testimony of DW.1 that he was undergoing treatment on 21.7.2013 is nor proved.

21.During the cross-examination of DW.1, the DW.1 stated that he and his wife received notices and after receipt of notice, the mother of the DW.1 called the plaintiff and at that time, Ramagani

Prasad and Satyanarayana were present. When the plaintiff was called to the house of defendants. Though the DW.1 stated that he will examine the said persons as witnesses on his behalf but the defendants failed to produce the evidence of those persons including the evidence of his mother. So, the version of DW.1 that the plaintiff was called to the house of defendants after issuance of Ex.A.2 legal notice is not proved by a cogent evidence.

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22.During the cross-examination DW.1 clearly admitted that the signatures shown on Ex.A.1 are belongs to DW.1 and his wife. So, the defendants admitted their signatures on Ex.A.1 pronote.

23.At this stage, it is pertinent to quote that according Section 118 of Negotiable Instrument Act, 1881 unless and until contrary is proved, the following presumptions shall be made:-

a)that every Negotiable Instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;

b)as to date; that every negotiable instrument bearing a date was made or drawn on such date;

c)as to time of acceptance; that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;

d)as to time of transfer; that every transfer of a negotiable instrument was made before its maturity;

e)as to order of indorsements; that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;

f)as to stamps; that a lost promissory note, bill of exchange or cheque was duly stamped;

g)that holder is a holder in due course; that the holder of a negotiable instrument is a holder in due course; provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.

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24.So, in view of admission made by DW.1 with regard to his signature and the signature of 2nd defendant on Ex.A.1 pronote, it is presumed that the consideration was passed under Ex.A.1 pronote.

Though the said presumption is available to the plaintiff but it can be rebutted either by direct evidence or by the cross-examination of evidence of plaintiff and his witnesses. Though the PWs.1 to 3 were cross-examined at length but nothing was elicited to disprove the case of plaintiff with regard to execution of Ex.A.1 pronote, passing of consideration under Ex.A.1 pronote. Hence, this Court is of opinion that the defendants failed to rebut the presumption under Section 118 of

Negotiable Instrument Act, which is in favour of the plaintiff.

25.Once the signature on Ex.A.1 pronote was admitted by

DW.1 the burden is lying on the defendants to establish that it is not supported by consideration. Hence, this Court is of opinion that the plaintiff successfully lead evidence to prove that the Ex.A.1 pronote is supported by consideration and as such issue No.2 is decided in favour of the plaintiff and against the defendants.

26.Under the aforesaid reasons, the plaintiff is entitled for recover of suit amount from the defendants and as such issue No.3 is decided in favour of the plaintiff and against the defendants.

27.Issue No. 4

To what relief?

The plaintiff is entitled for recovery of money basing on the promissory note executed by the defendants for an amount of

Rs.1,50,000/- on 21.7.2013 along with interest.

In the result, the suit is decreed with costs in favour of the plaintiff and against the defendants for Rs.2,11,800/-(Rupees two lakhs eleven thousand and eight hundred only) with subsequent interest @ 12% per annum on the principal amount of Rs.1,50,000/-(Rupees one 10 lakh fifty thousand only) from the date of suit till the date of decree and thereafter @ 6% per annum on the principal sum of Rs.1,50,000/- (Rupees one lakh fifty thousand only) till realization.

Dictated to the Personal Assistant, transcribed by him, corrected

and pronounced by me in open court this the 24th day of April, 2017.

Principal Junior Civil Judge,

Palakol

Appendix of Evidence.

Witnesses examined

For Plaintiff For Defendants

PW-1:Gottumukkala Satyanarayana Raju DW.1:Margani Prasad PW-2:Lankapalli Khagha Venkata Sheshadri PW-3:Tatraju Srinivas

Documents Marked

For Plaintiff:

Ex.A.1/21.7.2013 :Promissory note executed by the defendants in favour of the plaintiff. Ex.A.2/27.10.2015:Office copy of the registered notice issued by the plaintiff to the defendants. Ex.A.3/2.11.2015 :Postal acknowledgment of the 1st defendant. Ex.A.4/2.11.2015 : Postal acknowledgment of the 2nd defendant.

For Defendants : NIL

P.J.C.J PKL

1

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE :: PALAKOL

PRESENT: SRI K.SYAM BABU

Principal Junior Civil Judge

Thursday, this the 27th day of April, 2017

ORIGINAL SUIT NO: 18 of 2017

Between:

Gubbala V Satyanarayana, S/o.Narasimha Murthy @ China Narasimha Murthy, Pemmaraju Polavaram, Poduru Mandal. PJCJC.

..Plaintiff

And

The Passport Officer, Passport Office, Visakhapatnam, Andhra Pradesh.

...Defendant

This suit is coming on 26.4.2017 for final hearing before me in the presence of Sri D.Subrahmanyam, Advocate for the plaintiff and of

Smt. D.V.Lakshmi Arrabolu, advocate for Defendant and upon hearing the arguments of both sides and perusing the material papers on record and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1.Suit for declaration to declare that the plaintiff’s date of birth is 15.12.1972 as per the Secondary School Certificate and the name of the plaintiff is Gubbala V Satyanarayana, S/o.Gubbala

Narasimha Murthy @ China Narasimha Murthy and to consider the plaintiff claim according to law by the passport office and to grant such reliefs.

2.The averments of the plaint in brief are as follows:

Previously, the defendant’s authority issued a passport to the plaintiff and the same was renewal and issued a fresh passport bearing

No.M9355422 to the plaintiff in that passport bearing No.M9355422 the plaintiff’s date of birth was mentioned as 15.4.1967 instead of 15.12.1972 and also the plaintiff’s name was wrongly mentioned as

Gubbala Satyanarayana instead of Gubbala V Satyanarayana.

The plaintiff’s date of birth and name was correctly mentioned in the Secondary School Certificate Marks list.

2

Due to illiteracy of plaintiff’s parents, they relied upon the agent who filled the Passport form at Pemmaraju Polavaram, Poduru Mandal, wrongly mentioned the plaintiff’s date of birth in the Passport as 15.4.1967 instead of 15.12.1972, correct name is Gubbala V

Satyanarayana and the plaintiff did not realize the mistake at that point of time. Then, the plaintiff got issued a Registered Notice dated 13.1.2017 to the defendant to correct the date of birth and issue fresh passport but the defendant received the same and kept quiet. Now, the Passport Authorities are instructing the plaintiff to get the decree from the competent Court. The plaintiff wants to go to abroad for job for his livelihood and he is the sole bread earner person in his family.

Therefore, approached the Court and filed the suit for Declaration of his date of birth and his name. Hence, the suit.

3.Denying the averments of the plaint, the defendant filed their written statement by contended that the plaintiff obtained his first Passport bearing No.V400249 (1st passport) and at the time of applying for his first passport, the plaintiff mentioned his date of birth

as 15.4.1967. Later, in the year 2005, the plaintiff applied for his old

passport and obtained new passport bearing No.F4739955(2nd passport) with the same date of birth 15.4.1967. 10 years thereafter i.e., in the year 2015, the plaintiff applied for renewal of his passport and obtained passport bearing No.M9355422(3rdpassport) by mentioning the same date of birth 15.4.1967. As per the declarations, affidavits and information submitted by the plaintiff that his date of birth as 15.4.1967, the defendant issued the above mentioned three passports.

The plaintiff approached the Hon’ble Court for correction of his date of birth and name by filing SSC certificate as proof.

As per the Ministry’s Circular No.VI/401/2/5/2001 dated 26.11.2015, 13.1.2016 and 22.9.2016 the cases where the applicant 3 comes to passport issuing authority for change/correction with regards to date of birth in the passport after a period of five years from the date of issue of his first passport with alleged wrong date of birth shall not be entertained/accepted by the PIA.

The plaintiff in all the three passport application he declared that his date of birth is 15.4.1967 and his name as Gubbala Satyanarayana,

S/o.Gubbala Narasimha Murthy. As such the present suit is not maintainable under law. A copy of the application along with enclosures is herewith annexed for your Hon’ble Court kind perusal and consideration.

The defendant strongly disputes the genuineness of the documents filed by the plaintiff. The plaintiff did not approach this

Hon’ble Court with clean hands and as such he is not entitled for any of

the reliefs as prayed for.

The passport Act is a special enactment and the original courts will not have jurisdiction to direct the passport issuing authorities in the matter of revoking the passport. It is further submitted that the decision of passport authority under the provisions of the passport Act can be challenged either before the Hon’ble High Court or the Hon’ble

Supreme Court under the Writ Jurisdiction.

The present suit for change of date of birth has irreparably damaging the integrity and reputation of Indian passport and civil documents issuance system globally, leading to unspecified indirect visa and entry sanctions on all Indian citizens.

The plaintiff approached the Hon’ble Court by suppressing the material facts and as such he is not entitled for any relief as prayed for.

the plaintiff is liable for penal action for giving false affidavit and for suppressing material facts. Therefore, prays to dismiss the suit with costs.

4

4.Basing on the above pleadings, this Court framed the following issues on 10.4.2017:

1.Whether the plaintiff is entitled for the relief of Declaration against the defendant as prayed for?

2.To what relief?

5.On behalf of plaintiff Pw.1 is examined and got marked

Exs.A.1 to A.8. The counsel for the defendant filed a memo stating that they are not going to adduce either oral or documentary evidence.

Hence, their evidence is closed.

6.Heard arguments on both sides.

7.Issue No. 1

Whether the plaintiff is entitled for the relief of Declaration against the defendant as prayed for?

It is the case of the plaintiff that he approached the defendant for passport and the defendant authorities issued a passport to the plaintiff and the same was renewal and issued a fresh passport bearing

No.M9355422 to him in that passport bearing No.M9355422 his date of birth was mentioned as 15.4.1967 instead of 15.12.1972 and also his name was wrongly mentioned as Gubbala Satyanarayana instead of

Gubbala V Satyanarayana. Then, he approached the passport authorities who refused to issue fresh passport with correct date of birth and his name and he submitted the same, but even then the passport authorities refused to issue fresh passport with correct date of birth and his name and advised to get a decree of declaration of correct date of birth and his name from the competent Court. On that he approached the Court and filed this suit by giving notice to the defendant.

8.On the other hand, the defendant did not choose to deny the contents of the plaint, but their only contention is that basing on the information given by the plaintiff only and upon the declaration of 5 his parents, they have mentioned the date of birth as 15.4.1967, but they were unnecessarily dragged to the Court.

9.To substantiate his contention, the plaintiff himself examined as PW.1 and reiterated the contents of the plaint and got marked Exs.A.1 to A.8.

10. Since this is a suit filed for declaration of date of birth and his name by the plaintiff, the burden lies on the plaintiff to prove that his date of birth is not 15.4.1967 and his name is not Gubbala

Satyanarayana as mentioned in the passport, but it is 15.12.1972 and

Gubbala V Satyanarayana.

11. There is no dispute by both parties with regard to obtaining the passport earlier and it is also evident from Ex.A.1. The date of birth of the plaintiff mentioned in Ex.A.1 is 15.4.1967 and his name is mentioned in Ex.A.1 Gubbala Satyanarayana. The defendant also admits in their pleadings that the date of birth mentioned in the passport issued in the name of the plaintiff is 15.4.1967 and his name is Gubbala Satyanarayana. But the contention of the plaintiff is that his correct date of birth is 15.12.1972 and his correct name is Gubbala V

Styanarayana, but his agent filled up the passport and he might have been noted the wrong date of birth and name.

12. To prove his version, the plaintiff relied on the documents

Exs.A.1 to A.8. Original passport bearing No.M9355422 as Ex.A.1,

Secondary School Certificate Marks List as Ex.A.2, Provisional National

Trade Certificates as Ex.A.3, Aadhar Card of the plaintiff as Ex.A.4,

Returned application form of plaintiff submitted to the defendant as

Ex.A.5, Aadhar card of the father of the plaintiff as Ex.A.6, Office copy of registered notice send to the defendant as Ex.A.7, Postal receipt of the defendant as Ex.A.8. Ex.A.1 clearly shows that the defendant authorities issued passport in the name of Gubbala Satyanarayana but in view of Exs.A.2 to A.4, the original name of the plaintiff is Gubbala V 6

Satyanarayana. During the cross-examination of PW.1, it was elicited that the plaintiff has not produced Exs.A.2, A.3 at the time of renewal and as such there is no fault on the part of the defendant in issuing the

Ex.A.1 passport with the name of Gubbala Satyanarayana instead of

Gubbala V Satyanarayana. During the cross-examination of PW.1, the plaintiff clearly stated that he is ready to pay the suit costs to the defendant including the advocate fee and also ready to pay the penal fee if any collected by the defendant for reissuance of passport. Hence, from Exs.A.2, A.3, it is clear that the date of birth of the plaintiff is 15.12.1972 but not 15.4.1967 and his name is Gubbala V

Satyanarayana but not Gubbala Satyanarayana and it was wrongly mentioned. The plaintiff noticed the same and got issued notice to the defendant under Ex.A.7 and the defendant received the same. As per the version of the plaintiff, the defendant directed him to obtain the decree with regard to his correct date of birth and his name from the competent Court and thereby, he is entitled for the relief of declaration.

13. The defendant simply filed the written statement and kept quiet without adducing any evidence. Though the defendant cross- examined the PW.1 except putting a suggestion that basing on the information given by the plaintiff only by way of his application and they have mentioned the date of birth and his name in Ex.A.1, nothing was elicited from out of his evidence. But the plaintiff contended that due to mistake his agent or due to illiteracy of his parents, the wrong date of birth was mentioned in his documents and it is a curable defect.

14. The defendant did not choose to adduce any rebuttal evidence to deny the contention of the plaintiff and the plaintiff established his case by way of documentary evidence. The plaintiff specifically contended that he has to go abroad for his livelihood and 7 he is the sole bread winner of his family. Hence, it is just and necessary to correct the date of birth and name of plaintiff in the passport.

Otherwise, it will affect his career.

15. It is also evident from the pleadings of the defendant that in order to change the date of birth and his name, by the defendant authority, Order from the competent Court is to be required and further, it is pleaded in the written statement by the defendant that the minor can apply for change of Passport after attaining majority. Hence, in order to change the defect, the plaintiff approached the Court and filed the suit.

16. The evidence let in by the plaintiff remains unchallenged and the plaintiff establishes his case positively by way of oral and documentary evidence as such it is held that the plaintiff is entitled for declaration that his date of birth is 15.12.1972 and his name is

Gubbala V Satyanarayana as prayed for. Accordingly, this issue is answered in favour of the plaintiff and against the defendant.

17. Issue No. 2

To what relief?

From the light of above discussion, it is clear that the date of birth and name of the plaintiff is wrongly mentioned in passport as 15.4.1967instead of 15.12.1972 and Gubbala Satyanarayana instead of Gubbala V Satyanarayana and the plaintiff established that his date of birth is 15.12.1972 and his name Gubbala V Satyanarayana as such he is entitled for the relief of declaration as prayed for.

In the result, the suit is decreed in favour of the plaintiff by declaring that the date of birth of the plaintiff is 15.12.1972 and his name is Gubbala V Satyanarayana as per the Secondary School

Certificate costs awarded to the defendant and the plaintiff shall also bear the costs of the defendant because there is no fault on the part of the defendant.

8

Dictated to the Personal Assistant, transcribed by him, corrected and

pronounced by me, this the 27th day of April, 2017.

Principal Junior Civil Judge

Palakol

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff: For Defendant:

PW.1 :Gubbala Venkata Satyanarayana NONE

Documents Marked

For Plaintiff

Ex.A.1/28.5.2015 : Original passport bearing No.M9355422 Ex.A.2/6.12.1988 : Secondary School Certificate Marks List Ex.A.3 /7.12.1991: Provisional National Trade Certificates Ex.A.4/3.1.2017: Aadhar Card of the plaintiff Ex.A.5/3.1.2017: Returned application form of plaintiff submitted to the defendant Ex.A.6/3.1.2012: Aadhar card of the father of the plaintiff Ex.A.7 /13.1.2017--: Office copy of registered notice send to the defendant Ex.A.8/13.1.2017 : Postal receipt of the defendant

For defendant: NIL

P.J.C.J. PKL

1

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE :: PALAKOL

PRESENT: SRI K.SYAM BABU

Principal Junior Civil Judge

Monday, this the 24th day of April, 2017

ORIGINAL SUIT NO: 30 of 2016

Between:

1. Karri Venkatrama Reddy, S/o.Satyanarayana Reddy, Age 68 years, Male, Hindu, Agriculture, Kavitam, Poduru Mandal. PJCJC, Palakol. …Plaintiff

And

1. Penimijji Suramma, W/o.Nallayya, Age 68 years, Female, Hindu, Housewife, Patimeeda, Kavitam, Poduru Mandal. PJCJC.Palakol.

2. Penimijji Gunnayya, S/.o.Nallayya, Age 48 years, Male, Hindu, Business, Patimeeda, Kavitam, Poduru Mandal. PJCJC.Palakol.

3. Penimijji Ramu, S/o. Nallayya, Age 43 years, Male, Hindu, Business, Patimeeda, Kavitam, Poduru Mandal. PJCJC.Palakol.

4. Mantri Pentamma, W/o.Adinarayana, Age 46 years, Female, Housewife, Near Vinayaka Swamy Temple, Kavitam Poduru Mandal. PJCJC, Palakol.

...Defendants

This suit is coming on 20.4.2017 for final hearing before me in the presence of Sri M.V.Rama Reddy, Advocate for the plaintiff and of

Sri I.S.S.Murthy, advocate for the defendants 1,3,4 and D.2 remained exparte and upon hearing the arguments of both sides and perusing the material papers on record and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1.The suit filed by the plaintiff for recovery of money basing on the promissory note executed by the deceased Penimijji Nallayya,

S/o.Gunnayya for an amount of Rs.11,500/- on 2.3.2007 along with interest.

2.The averments of the plaint in brief are as follows: That the 1st defendant is the wife of Penimijji Nallayya, S/o.Gunnayya and the defendants 2 to 4 are children of 1st defendant and Penimijji Nallayya.

On 2.3.2007, Penimijji Nallayya borrowed an amount of Rs.11,500/- from the plaintiff for his family necessities and executed the suit 2 pronote in favour of the plaintiff for the said amount on the even date undertaking to repay the same along with interest at Rs.2/- per hundred per month. On 1.3.2010, the said Penimijji Nallayya approached the plaintiff and made part-payment of Rs.1,000/- to the plaintiff and endorsed the same on the reverse of the suit pronote. On 21.2.2013, the said Penimijji Nallayya made part-payment of Rs.1,000/- to the plaintiff and again endorsed the same on the reverse of the suit pronote. Inspite of several demands, the said Penimijji Nallayya not discharged the debt and subsequently died. After the death of Penimijji

Nallayya his estate was devolved on all the defendants and as such the plaintiff filed the suit with a prayer to realize the decree debt against the estate of deceased Penimijji Nallayya.

3.The 2nd defendant remained exparte and the defendants 3 and 4 filed a memo by adopting the written statement of 1st defendant.

4.After the receipt of suit summons, the 1st defendant filed a written statement by contending as follows:

The averments of the plaint with regard to borrowal of amount by Penimijji Nallayya and making of part-payment endorsements on the reverse of suit pronote are denied. The 1st defendant further stated that the said Penimijji Nallayya died on 7.1.2013 and as such there is no possibility of making endorsements on the reverse of suit pronote on 21.2.2013. No property is devolved on the defendants and there is no joint family and the suit pronote is a forged and created one and prayed for dismissal of the suit.

5.Basing on the above pleadings, this Court framed the following issues on 25.10.2016:

1. Whether the plaintiff is entitled for the decree amount against the estate of the deceased Penimijji Nallayya, S/o.Gunnayya lying in the hands of the defendants or not?

3 2.To what relief?

6.On behalf of plaintiff, PWs.1 to 3 are examined and got marked Exs.A.1 to A.3. No oral and documentary evidence is adduced by the defendants.

7.Heard arguments on both sides.

8.Issue No.1:

1. Whether the plaintiff is entitled for the decree amount against the estate of the deceased Penimijji Nallayya, S/o.Gunnayya lying in the hands of the defendants or not?

According to the pleadings of plaintiff, the husband of 1st defendant and the father of Defendants 2 to 4 borrowed an amount of

Rs.11,500/- on 2.3.2007 and later made part-payments on 1.3.2010 and 21.2.2013 respectively and the executant of pronote was expired without discharging the debt and as such the plaintiff filed this suit against the legal heirs of the deceased Penimijji Nallayya.

9.When coming to the evidence, the PW.1/plaintiff chief- examination is reiteration of his pleadings and he clearly stated about the execution of suit pronote by Penimijji Nallayya on 2.3.2007 and borrowal of amount of Rs.11,500/- under Ex.A.1. The evidence of PW.1 further disclosed that the deceased Penimijji Nallayya executed the suit pronote by undertaking to repay the amount along with interest and subsequently made two part-payments on 1.3.2010 and 21.2.2013 respectively and made endorsements on the reverse of the Ex.A.1, which are marked as Exs.A.2 and A.3.

10.The plaintiff examined the attestor of Ex.A.1 pronote as

PW.2. The PW.2 evidence disclosed that on 2.3.2007, the said Penimijji

Nallayya borrowed an amount of Rs.11,500/- from the plaintiff and executed the Ex.A.1 pronote in his presence. The PW.2 clearly stated 4 that he and one Kala Rama Rao were acted as attestors of Ex.A.1 pronote and one Medapati Peda Tata Reddy was the scribe of Ex.A.1.

11.On considering the oral testimony of PW.2 with that of the

Ex.A.1 pronote which clearly shows that the oral testimony of PW.2 is supported the contents of Ex.A.1 pronote. Hence, the evidence of

PWs.1 and 2 clearly shows that the said Penimijji Nallayya borrowed an amount of Rs.11,500/- on 2.3.2007 and executed the Ex.A.1 pronote.

12.The plaintiff examined the scribe of Ex.A.2 endorsement as

PW.3 and as per the evidence of PW.3, he has scribed the part- payment endorsement on the reverse of Ex.A.1 pronote on 1.3.2010, the said oral testimony of PW.3 is supported by the contents of Ex.A.2 endorsement dated 1.3.2010. The PW.3 evidence further disclosed that the part-payment endorsement under Ex.A.3 was scribed by one

Medapati Peda Tata Reddy and the said person died recently leaving behind no issues and as such the Pw.3 also deposed that he can identify the handwriting of the said Medapati Peda Tata Reddy. The

PW.3 clearly identified the Ex.A.3 endorsement was scribed by

Medapati Peda Tata Reddy. So, the evidence of Pw.3 also supported the evidence of plaintiff with regard to the part-payment endorsement

dated 21.2.2013. During the cross-examination of PW.1, the learned

counsel for defendants made a suggestion that the said Penimijji

Nallayya died in the year 2012 and he did not make Ex.A.3 endorsement.

13.On considering the pleadings of defendant, the 1st defendant clearly stated that the said Penimijji Nallayya died on 7.1.2013 but during the cross-examination of PW.1, a suggestion was made that the said Penimijji Nallayya was died in the year 2012. So, the version of defendants about the date of death of Penimijji Nallayya in the pleadings is contrary to the suggestion made to the PW.1 during 5 the cross-examination. When there is no certainty about the date of death of the executant of Ex.A.1 pronote. This Court is of opinion that there is no sufficient evidence to disprove the Ex.A.3 endorsement.

Moreover, several opportunities were given to the defendants, they failed to adduce any evidence and they also failed to file any documentary proof like the Death Certificate of Penimijji Nallayya to disprove the Ex.A.3 endorsement. The defendants can rely on the facts elicited in the cross-examination of plaintiff, but nothing was elicited to disprove the evidence of PWs.1 to 3 and to disprove the documents under Exs.A.1 to A.3.

14.Hence, this Court is of opinion that the evidence of PWs.1 to 3 clearly established the execution of Ex.A.1 pronote by deceased

Penimijji Nallayya and making of part-payment endorsements under

Exs.A.2 and A.3.

15.The evidence of PW.1 clearly shows that the debt covered under Ex.A.1 was not discharged either by deceased Penimijji Nallayya or by the defendants and as such the plaintiff is entitled for the decree amount against the estate of the deceased Penimijji Nallayya which is lying in the hands of the defendants 1 to 4.

16.On considering the entire evidence of PWs.1 to 3, it is clear that the plaintiff successfully proved the facts with regard to passing of consideration under Ex.A.1 and making of endorsements under Exs.A.2 and A.3 and as such the plaintiff is entitled for the suit claim and the plaintiff is entitled to recover the same from the estate of deceased

Penimijji Nallayya, which is lying in the hands of the defendants.

Accordingly, this issue is answered in favour of the plaintiff and against the defendants.

17.Issue No. 2

To what relief?

6

In view of the aforesaid reasons, the defendants are liable to pay the suit claim to an extent of the assets of the deceased Penimijji

Nallayya, which are lying in their hands.

In the result, the suit is decreed with costs in favour of the plaintiff and against the defendants 1 to 4 to the extent of the estate of the deceased Penimijji Nallayya, S/o.Gunnayya lying in the hands of the defendants 1 to 4, for Rs.32,069/- (Rupees thirty two thousand and sixty nine only) with subsequent interest @ 12% per annum on the

principal amount of Rs.11,500/- (Rupees eleven thousand and five

hundred only) from the date of suit till the date of decree and thereafter @ 6% per annum on the principal amount of Rs. 11,500/- (Rupees eleven thousand and five hundred only) till realization.

Dictated to the Personal Assistant, transcribed by him, corrected

and pronounced by me in open court this the 24th day of April, 2017.

Principal Junior Civil Judge,

Palakol.

Appendix of Evidence.

Witnesses examined

For Plaintiff For Defendants

PW-1:Karri Venkatrama Reddy NONE PW-2:Karri Satyanarayana PW-3-Tamanampudi Venkata Nagi Reddy

Documents Marked

For Plaintiff:

Ex.A.1/2.3.2007:Promissory note executed by the defendants in favour of the plaintiff. Ex.A.2/1.3.2010:Part-payment endorsement executed by Penimijji Nallayya Ex.A.3/21.2.2013 :Part-payment endorsement executed by Penimijji Nallayya

For Defendants : NIL

P.J.C.J PKL

1

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE :: PALAKOL

Present: SRI K.SYAM BABU

Principal Junior Civil Judge,

Wednesday, this the 26th day of April, 2017

ORIGINAL SUIT NO: 115 of 2015

Between:

S.S.Hatchery Firms Reg.No.162 of 2014, (PAN No ACRFS 7229 N) Rep., by Yatham Sai Lakshmi Narayana, S/o.Venkata Narasimha Murthy, Hindu, Male, Age 44 years, Business, Gadhirajuvari street, Rama Chandrapuram, Bhimavaram, BJCJC.

...Plaintiff

And

1. Vegesina Maha Lakshmi Geetha Vani, W/o.Rama Krishnam Raju @ Eswar Raju, Hindu, Female, Age 34 years, Housewife, H.No.151/2, RT, 1st floor, Vijayanagara Colony, Hyderabad – 500 057.

2. Vegesina Rama Krishnam Raju @ Eswar Raju, S/o.Sathi Raju, Hindu, Male, Age 44 years, Business, H.No.151/2 RT, 1st floor, Vijayanagara Colony, Hyderabad – 500 057.

...Defendants

This suit is coming on 24.4.2017 for final hearing before me in the presence of Sri D.Subramanyam, Advocate for the plaintiff and the defendants remained exparte and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1.Suit for Permanent Injunction.

2.The averments of the plaint in brief are as follows: The defendants 1 and 2 are wife and husband. The plaint schedule property was secured in favour of IDBI Bank Limited, Bhimavaram by 1st defendant towards the financial facility of KCC loan offered by IDBI

Bank Limited to Vegesina Sathi Raju, S/o.Subba Raju and that the said

Vegesina Sathi Raju and 1st defendant defaulted in repaying the liability to the IDBI Bank, then, the IDBI Bank take possession of the plaint schedule property and conducted the E-Auction, in that E-

Auction the plaintiff participated and became successful bidder, after completion of the all formalities the IDBI Bank Limited, Bhimavaram executed the sale certificates dt.28.4.2015 in favour of the plaintiff 2 regarding the plaint schedule property, after execution of the sale certificate, the IDBI Bank Limited, Bhimavaram executed the four sale deeds dt.29.7.2015 under the document Nos.3705 to 3708 in favour of the plaintiff i.e., plaint schedule property. So, the plaintiff has been possession, right, title over the plaint schedule property.

The defendants approached the plaintiff and demanded the plaintiff to resale the plaint schedule property to them, but the plaintiff refused to do so, then, the defendants bore grudge against the plaintiff and waiting for opportunity.

10 days back, the defendants with a view to cause trouble to the plaintiff, they made a preparations to occupy the plaint schedule property then, the plaintiff raised a dispute before the elders, then, the elders advised to the defendants that it is not a good on their part to interfere with the plaint schedule property and advised the defendants not to interfere with the peaceful possession and enjoyment of the plaint schedule property, as per the advice of the elders, the defendants are kept quiet. Now from the last two days, the defendants are proclaiming in the village that they would dispossess the plaintiff from the plaint schedule property. Hence, the plaintiff is approaching the Hon’ble Court for Permanent Injunction restraining the defendants and their men from ever interfere with the peaceful possession and enjoyment of the plaint schedule property. Hence, the suit.

3.After the receipt of summons, the defendants remained exparte and did not choose to contest the suit.

4.During the course of trial, on behalf of the plaintiff, P.W.1 is examined and got marked Exs.A.1 to A.5. No oral and documentary evidence is adduced by the defendants as they remained exparte.

5.Heard the plaintiff.

6.Now the point for consideration is:

3 “Whether the plaintiff is entitled for Permanent injunction against the defendants as prayed for?”

POINT:

7.According to the case of the plaintiff, actually, the 1st defendant was stood as surety for the loan obtained by Sri Vegesina

Sathi Raju and the plaint schedule property was towards security for the said loan and subsequently, when the loan was not repaid IDBI bank took the possession of plaint schedule property and conducted E- auction and in that auction, the plaintiff became successful bidder and after completion of all formalities the bank authorities issued Sale certificate in favour of the plaintiff with regard to plaint schedule property and executed four sale deeds in favour of the plaintiff and while the matter stood thus, the defendants approached the plaintiff and demanded to resale the plaint schedule property in their favour and for that, the plaintiff not agreed and due to that, the defendants are trying to occupy the plaint schedule property and as such the suit is filed.

8.The plaintiff is examined as PW.1 and his chief-examination affidavit clearly shows that the IDBI bank authorities executed sale deeds in favour of the plaintiff with regard to the plaint schedule property and also issued Ex.A.5 sale certificate in favour of the plaintiff.

As per the averments of Exs.A.1 to A.5 and the evidence of PW.1 clearly shows that initially, the bank authorities taken the possession of plaint schedule property and the same was purchased by the plaintiff in E-auction and as such the plaintiff has became the owner and in possession are property mentioned in Exs.A.1 to A.4.

9.The oral testimony of plaintiff clearly shows that the defendants approached the plaintiff and demanded for retransfer of plaint schedule property and for the same, the plaintiff has not agreed 4 and due to that, the defendants are trying to encroach the plaint schedule property. Hence, the evidence of Pw.1 clearly shows that there is a cause of action to file the suit and in order to give protection to the purchaser of property and in order to secure the plaintiff from dispossession of plaint schedule property, it is very necessary to pass an order of injunction by restraining the defendants from ever interfering with the possession and enjoyment of plaint schedule property. Hence, this Court is of opinion that the evidence of PW.1 and the documents Exs.A.1 to A.5 clearly establishes the title and possession of plaintiff over the plaint schedule property and as such the plaintiff is entitled for the relief of Permanent Injunction against the defendants as prayed for. Accordingly, the point is answered in favour of the plaintiff and against the defendants.

10.In the result, the suit is decreed with costs in favour of the plaintiff and against the defendants by granting permanent injunction restraining the defendants and their men from ever interfering with the plaintiff’s peaceful possession and enjoyment over the plaint schedule property.

Dictated to the Personal Assistant, transcribed by him, corrected

and pronounced by me in open court this the 26th day of April, 2017.

Principal Junior Civil Judge

Palakol

Appendix of Evidence.

Witnesses examined

For Plaintiff. For Defendants

PW-1 :Yatham Sai Lakshmi Narayana NONE

Documents Marked

For Plaintiff:

Ex.A.1/29.7.2015:Certified copy of sale deed executed by IDBI Bank in favour of plaintiff 5

Ex.A.2/29.7.2015:Certified copy of sale deed executed by IDBI Bank in favour of plaintiff Ex.A.3/29.7.2015:Certified copy of sale deed executed by IDBI Bank in favour of plaintiff Ex.A.4/29.7.2015:Certified copy of sale deed executed by IDBI Bank in favour of plaintiff Ex.A.5/28.4.2015:Sale Certificate executed by IDBI Bank in favour of plaintiff

For Defendants: NIL

P.J.C.J., PKL