Smt.K.V.L.Himabindu

1 Fair Judgment in C.C.843/2015

IN THE COURT OF THE II ADDL. JUNIOR CIVIL JUDGE CUM II ADDL.

JUDICIAL FIRST CLASS MAGISTRATE, KAKINADA

PRESENT:- Smt. K.V.L. HIMABINDU,

Principal Junior Civil Judge cum Judicial First Class Magistrate.

FAC of II Addl. Junior Civil Judge-cum-II Addl. Judl. Magistrate

of First Class, Kakinada.

Friday, this the 20th day of September 2019

C.C.No.843 of 2015

Between:

Ramisetti Thrimurthulu, S/o.Ramu, age 45 yrs., business, R/o.D.No.64-7-12/A6, Pratapnagar, Kakinada.… Complainant

AND Pochiraju Veera Venkata Satya Trinadha Seshagiri Rao, S/o.Apparao, age 55 yrs., employee, Training officer, Govt. ITI,

Opp: JNTU, Kakinada. ... Accused

This case coming before me for final hearing on 16.09.2019 in the presence of Sri.D.Chinnaji, Sri M.Mohan Kumar, Advocates for the complainant and of Sri.Kamuju Srinivasa Rao, Advocate for the

Accused and upon perusing the evidence and material papers on record and after having heard and stood over for consideration till this day, the court delivered the following:

: JUDGMENT :

1. This is a complaint filed by the complainant U/s. 200 Cr.P.C for the offence punishable U/s.138 of Negotiable Instruments Act.

2. The brief averments of the complainant’s case is that the accused borrowed an amount of Rs.4,00,000/- from the complainant on 27.07.2013 for the purpose of his family expenses and to discharge sundry debts and duly executed promissory note on the even date agreeing to repay the same together with interest at the rate of Rs.2/- p.c.p.m. Inspite of repeated demands, the accused postponed the same on one pretext or the other. Finally he got issued 2 Fair Judgment in C.C.843/2015 cheque bearing No.215948 dt.11.10.2015 for an amount of

Rs.3,00,000/- drawn on State Bank of India, Jagannaickpur Branch,

Kakinada towards part satisfaction of the amount borrowed by him.

Believing the accused the complainant presented the said cheque in his account in Kakinada Cooperative Town Bank Limited, Kakinada for encashment. However the said cheque got dishoroured for the reason “drawers signature differs” vide cheque return memo dt.21.10.2015.

The complainant got issued legal notice on 31.10.2015 calling upon the accused to discharge his liability under the said cheque within 15 days from the receipt of said notice. But the said notice got returned with an endorsement intimation and the accused did not choose to discharge his liability covered under the said cheque. Hence the complainant filed this case contending that the accused having fully known that there are no sufficient funds in his account, wantonly got issued the cheque to deceive this complainant. Hence committed the offences punishable under Secs.138 & 142 of Negotiable Instrument

Act and prayed to punish the accused under Sec.138 & 142 of N.I. Act and to award compensation under Sec.357 Cr.P.C.

3. After recording the sworn statement of the complainant the case was taken on file for the offence U/S.138 NI Act and was numbered as

CC 843/2015 by the III Addl. Judicial Magistrate of First Class,

Kakinada.

4. On receipt of the summons, the accused marked his appearance before the court, whereupon, copies of documents relied upon by the complainant were furnished to the accused as contemplated U/s.207 Cr.P.C.

3 Fair Judgment in C.C.843/2015

5. The accused was examined U/s. 251 Cr.P.C by explaining the substance of the accusation leveled against him for the offence U/s.

138 of N.I.Act for which the accused denied the said offence, pleaded not guilty and claimed to be tried.

6.During the course of trial, to establish his case against the accused, the complainant got himself examined as PW1 and two independent witnesses as P.W.2 and P.W.3 and placed reliance on

Ex.P1 to Ex.P5.

7.After closure of the complainant’s evidence, the accused was examined U/s.313 Cr.P.C by explaining the incriminating circumstances appearing against him in the evidence of PW1 to PW3 for which the accused denied the same once again and pleaded not guilty. At the request of the accused that he wants to adduce defence evidence on his behalf the matter was posted for defence evidence.

To rebut the case of the complainant the accused got examined himself as DW1 and no documentary evidence is adduced on his behalf.

8. Heard both sides. Written arguments are filed by the counsel for the accused. Perused material on record.

9. Now the point which stood up for determination is:-

Whether the complainant succeeded in bringing home the guilt of the accused for the offence U/s.138 of N.I.Act beyond all reasonable doubt?

10. Point:-

The complainant got examined himself as PW1 and filed his chief affidavit in lieu of his chief affidavit and reiterated the entire contents as in his complaint. In a nutshell it is his case that the accused obtained loan of Rs.4,00,000/- from him on 27.07.2013 and 4 Fair Judgment in C.C.843/2015 duly executed Ex.P1 promissory note. That pursuant to repeated demands that the accused issued Ex.P2 cheque for an amount of

Rs.3,00,000/- towards discharge of the part of liability covered under

Ex.P1. The said cheque on presentation with his banker got dishonoured for the reason drawers signature differs. Ex.P3 is the cheque return memo. This being so, the complainant got issued the legal notice dt.31.10.2015 calling upon the accused to discharge his liability under Ex.P2 within 15 days from the date of receipt of the said notice. But the legal notice got returned unclaimed. Ex.P4 is the office copy of the legal notice and Ex.P5 is the returned RPAD. Thus it is submitted that the accused having fully known issued Ex.P2 cheque by altering his signature and as he failed to discharge his liability inspite of having knowledge of issuance of legal notice that he is liable to be punished under Sec.138 of N.I. Act.

At this juncture I deem it pertinent to mention Judgment of Our

Hon'ble Apex Court, in Jugesh Sehgal v. Shamsher Singh Gogi

MANU/SC/1198/2009 : (2009) 14 SCC 683, wherein it noted that the following ingredients are required to be fulfilled to attract offence u/Sec.138 N.I.Act viz:..

(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;

(ii) the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;

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

(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount 5 Fair Judgment in C.C.843/2015 arranged to be paid from that account by an agreement made with the bank;

(v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;

(vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.

Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act and once the ingredients are established it is not necessary that the testimony of the witness must be corroborated as it is the transaction between two persons.

11.Thus by considering the testimony of P.W.1 in light of Ex.P1 to

Ex.P5, it can be said that he satisfied the ingredients to establish the offence under Sec.138 of N.I. Act. This being so, to further corroborate his contentions he got examined the attestors of the promissory note as P.W.2 and P.W.3 who also filed their chief affidavits and reiterated with regard to execution of Ex.P1 promissory note in their presence and passing of consideration under it. In fact nothing crucial could be elicited during the cross examination of P.W.2 and

P.W.3 to discredit their testimony with regard to their presence at the time of execution of Ex.P1 promissory note and passing of consideration under it. Thus, it can be said that the complainant succeeded in establishing that there is a legally enforceable debt between both the parties as reflected under Ex.P1.

6 Fair Judgment in C.C.843/2015

12.This being so, it is the contention of P.W.1 that in discharge of the said legally enforceable debt that the accused issued Ex.P2 cheque. However to rebut the case of the complainant the accused got examined himself as DW1 and denied having executed any such promissory note or of having issued any such cheque as alleged. It is pertinent to note that by filing chief affidavit it is submitted by the accused that in fact he has obtained loan of Rs.1,00,000/- only from the complainant on 09.02.2013 at which time he issued three signed blank cheques and three signed empty promissory notes. By selling his house at Indrapalem in the month of November, 2013 that he has cleared the said debt in the house of the complainant on 07.12.2013 in the presence of one K.Srinivasa Rao of Godarigunta of Kakinada. A full satisfaction settlement receipt was also issued by the complainant stating that he will return the blank cheques and the promissory notes issued by him after two weeks after entering in his account books but surprisingly filed this false case.

13.Apparently except his self serving testimony, there is no cogent and reliable evidence adduced on record to show that DW1 has issued any blank promissory notes or blank cheques to the complainant with regard to any earlier transaction and that misutilizing the same that this false case is instituted. On the other hand, the contention of the accused himself that he has obtained loan of Rs.1,00,000/- from the complainant probablizes the fact that there is some monitory transaction between both the parties brushing aside any stand if at all pertaining to the accused challenging the financial capacity of the complainant. In the background of the said plea, the facts elicited from PW1 that he obtained house loan of Rs.3,00,000/- and by adding another Rs.1,00,000/- forwarded loan of Rs.4,00,000/- 7 Fair Judgment in C.C.843/2015 to the accused on the relevant date is strengthened. Though there is no documentary evidence produced by PW1 to show that he obtained any such amounts towards house loan as alleged which he forwarded to the accused herein, any such ambiguity stands brushed aside in light of the fact of the complainant examining PW2 and PW3 who testified with regard to their presence at the time of passing of consideration under Ex.P1 and their acting as attestors to the said document.

14.The most crucial aspect to be appreciated here is during the course of cross examination the accused admitted his signature on

Ex.P2 cheque though he denied his signature on Ex.P1 promissory note. In fact in his chief affidavit he admitted having issued signed blank cheques and promissory notes to the complainant which reflect his admitting his signatures on the said documents. This being so, during cross examination he denied his signature on Ex.P1 promissory note while he categorically admitted his signature on Ex.P2 cheque.

Astonishingly Ex.P2 cheque was returned by the bank for the reason “drawers signature differs”. However as discussed above, there is no ambiguity that Ex.P2 cheque is drawn from the account of the accused. There is no denial that the said cheque was issued by him to the complainant and bears his signature. Thus in these circumstances, the burden of proof undoubtedly shifts to the accused to show that under what circumstances he issued those documents or to disprove the contentions of the plaintiff with regard to legally enforceable debt existing between both the parties. Though he has taken the stand of discharging his total liability in the presence of one

K.Srinivasa Rao of Godarigunta, he did not choose to examine the said person before this court. Further though he has further submitted 8 Fair Judgment in C.C.843/2015 that a full satisfaction receipt was issued by the complainant, he did not choose to file any such document before this court. Thus except self serving testimony of the accused, there is nothing on record to brush aside the contentions of the accused. Thus any variation in the signature as contended by the bank while returning Ex.P2 cheque fades away in light of admission of the accused of his signature on it.

Further DW1 during his cross examination disclosed he is a Gazetted officer and knows the sanctity of issuing blank documents. This being so, though a petition to recall D.W.1 and for receiving document was filed which was allowed the accused did not choose to enter into the witness box and moreover filed a petition to not press the same.

Whatever may be the veracity behind the alleged documents, apparently there is no documentary evidence to show that the accused discharged his liability. Thus, in the back ground of the facts discussed above it brushes aside the contention of accused that he has issued any blank documents to the complainant towards security and on the other hand is strengthening the case of the complainant with regard to issuance of Ex.P2 cheque in discharge of legally enforceable debt covered under Ex.P1.

15. Though the legal notice sent to accused got returned un served as intimation, there is no dispute raised by the accused as to his registered address and hence, it amounts to sufficient notice as contemplated under S.27 of General Clauses Act. With this regard, the counsel for the complainant relied on the Judgment of his Lordships in case of M.Ramesh Vs. Vankadara Sunik Kumar and another reported in 2005(2) ALD Page 442 wherein it was held that “notice sent under certificate of posting would also be valid statutory notice since the section does not mandate that notice has to be sent only by 9 Fair Judgment in C.C.843/2015 registered post. The only question for consideration is whether the address mentioned on the said certificate of posting is the correct address of the petitioner or not. Once the said address is the correct address of the addressee it would be deemed to have been received by the addressee. As notice returned as UNCLAIMED also amounts to due service and notice issued through Under Certificate of posting did not return and hence the factum of due service of notice stood amply established”.

16.Ordinarily the presumption has to be rebutted by the accused- drawer during the course of trail by proving that the cheques were not issued towards the discharge of the liability. However, if the material referred to an relied upon by the complainant in the complaint and other documents accompanied to the said complaint would show that the cheques were not issued towards the discharge of the liability, then there is no difficulty in holding that the complaint is not sustainable under law. Once the cheque is accepted all the consequences and incidences of payment through cheque that emanates from the provisions of Negotiable Instruments Act would follow. Human conduct in such circumstances has to be interpreted subject to the presumption that is available under the Negotiable

Instruments Act. The person who is entitled to get money on particular date and in lieu whereof he accepts the cheque without any demur and present it for encashment, presumptions, particularly under Section 139 of the Negotiable Instruments Act will follow.

17.Because both Sections 138 and 139 require that the Court “shall presume” the liability of the drawer of the cheques for the amounts for which the cheques are drawn, it is obligatory on the

Court to raise this presumption in every case where the factual basis 10 Fair Judgment in C.C.843/2015 for the raising of the presumption had been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on the accused. Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the Court “may presume” a certain state of affairs. Presumptions as rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact.

18.In light of the discussion made above it can be said that the complainant succeeded in establishing the guilt of the accused for the offence under Sec.138 N.I.Act and that the accused failed to rebut the same at least in preponderance of probabilities.

19.In the result, the accused is found guilty for the offence under

Sec.138 N.I. Act and is convicted under Sec.255 (2) Cr.P.C.

Typed to my dictation corrected and pronounced by me in the open court on this the 20th day of September, 2019.

Sd/- K.V.L.Hima Bindu

Prl. Junior Civil Judge-cum-Judicial

Magistrate of First Class, Kakinada.

FAC of II Addl.Junior Civil Judge-cum-II Addl. Judl. Magistrate of First Class, Kakinada.

11 Fair Judgment in C.C.843/2015

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution:- For Defence:-

PW1: R.TrimurthuluDW1: P.V.V.S.T.S.Seshagiri PW2: T. Nageswara RaoRao. PW3: A. Durga Prasad .

EXHIBITS MARKED

For Prosecution

Ex.P1/27-07-2013 : Original pronote executed by the accused in favour of complainant.

Ex.P2/11-10-2015 : Cheque issued by the accused in favour of complainant.

Ex.P3/21.10.2015 : Cheque return memo.

Ex.P4/31.10.2015 : Office copy of the legal notice to the accused.

Ex.P5/ -- : Returned R.P. Cover.

For defence :- Nil. M.Os Marked -Nil-

Sd/- K.V.L.Hima Bindu

PJCJ CUM JFCM

FAC of II AJCJ-CUM-IIAJMFC

21. Heard the accused regarding the quantum of sentence. It is submitted by the accused that he is suffering from T.B. and aged about 60 years and suffering with old age ailments. That if he is send to imprisonment that his family consisting of old aged wife will suffer irreparable loss and injury. Having regard to the facts and circumstances of this case and the nature and gravity of offence, this court is of considerable opinion that the provisions under Sec.360

Cr.P.C. or Probation of offenders Act are not applicable to this Case.

Considering the factual situation and the mitigating circumstances, this court is of view that sentencing the accused to undergo imprisonment and to pay fine in the form of compensation would meet the ends of Justice.

12 Fair Judgment in C.C.843/2015

Accordingly, the accused is sentenced to undergo simple imprisonment for a period of six months and to pay compensation equivalent to the cheque amount to the complainant under Sec.357

Cr.P.C. The accused is directed to pay the said compensation amount directly to the Complainant within a period of one month. In default of payment of compensation, the accused shall undergo further simple imprisonment of six months. The accused is informed of his right to appeal and he has reported that he already engaged a Counsel of his choice.

Typed to my dictation corrected and pronounced by me in the open court on this the 20th day of September, 2019.

Sd/- K.V.L.Hima Bindu

Prl. Junior Civil Judge-cum-Judicial

Magistrate of First Class, Kakinada.

FAC of II Addl.Junior Civil Judge-cum-II Addl. Judl. Magistrate of First Class, Kakinada.

Calendar and Judgment

IN THE COURT OF THE II ADDL. JUNIOR CIVIL JUDGE CUM II ADDL.

JUDICIAL FIRST CLASS MAGISTRATE, KAKINADA

CALENDER CASE NO.843/2015

Date of offence:11.10.2015 Date of complaint:01.12.2015 Date of taken on file:1.12.2015 Date of apprehension of accused:4.7.2016 Date of commencement of trial:25.11.2016 Date of close of trial:15.7.2019 Date of sentence of order:20.9.2019 Complainant: Ramisetti Thrimurthulu, S/o.Ramu, age 45 yrs., business, R/o.D.No.64-7-12/A6, Pratapnagar, Kakinada.

Particulars of the accused:-

Pochiraju Veera Venkata Satya Trinadha Seshagiri Rao, S/o.Apparao, age 55 yrs., employee, Training officer, Govt. ITI, Opp: JNTU, Kakinada.

Nature of offenceU/Secs. 138 of Negotiable Instruments Act 13 Fair Judgment in C.C.843/2015

Finding of the courtAccused found guilty. In the result, the accused is found guilty for the offence under Sec.138

N.I. Act and is convicted under Sect.255(2) Cr.P.C.

Heard the accused regarding the quantum of sentence. It is submitted by the accused that he is suffering from T.B. and aged about 60 years and suffering with old age ailments. That if he is send to imprisonment that his family consisting of old aged wife will suffer irreparable loss and injury. Having regard to the facts and circumstances of this case and the nature and gravity of offence, this court is of considerable opinion that the provisions under Sec.360

Cr.P.C. or Probation of offenders Act are not applicable to this Case.

Considering the factual situation and the mitigating circumstances, this court is of view that sentencing the accused to undergo imprisonment and to pay fine in the form of compensation would meet the ends of Justice.

Accordingly, the accused is sentenced to undergo simple imprisonment for a period of six months and to pay compensation equivalent to the cheque amount to the complainant under Sec.357 Cr.P.C. The accused is directed to pay the said compensation amount directly to the Complainant within a period of one month. In default of payment of compensation, the accused shall undergo further simple imprisonment of six months. The accused is informed of his right to appeal and he has reported that he already engaged a Counsel of his choice.

Sd/- K.V.L.Hima Bindu

Prl. Junior Civil Judge-cum-Judicial

Magistrate of First Class, Kakinada.

FAC of II Addl.Junior Civil Judge-cum-II Addl. Judl. Magistrate of First Class, Kakinada.

1 Fair Judgment in C.C.56/2017

IN THE COURT OF THE PRL. JUNIOR CIVIL JUDGE CUM JUDICIAL

MAGISTRATE OF FIRST CLASS :: AT KAKINADA.

Present: Smt.K.V.L.Hima Bindu, Prl. Junior Civil Judge–cum-Judicial Magistrate of First Class, Kakinada.

Wednesday, the 30th day of October, 2019

C.C.No.56/2017

Between:-

State represented by the

Sub Inspector of Pedapudi PS. ...Complainant

And

Valluri Bebi, W/o Annavaram, 40 years, SC Madiga, Domada village, Pedapudi Mandal.

..Accused No.2

This case coming before me for final hearing on 25.10.2019 in the presence of learned Sr.A.P.P for the State and of Sri K.Pratap Kumar, Counsel for Accused and upon perusing the evidence and material papers on record and having heard and stood over for consideration till this day, the Court delivered the following :

: J U D G M E N T :

The Sub-Inspector of Police, Pedapudi P.S filed charge sheet against the accused for the offences punishable under Sections 354(a)(2) IPC.

2. The brief facts of the prosecution case goes to show that Valluri

Anusha is the resident of SC peta, Domada village, Pedapudi Mandal while her parents are residents of Kondapalli village of Peddapuram Mandal. About two years back her marriage was performed with Valluri Lovaraju of Domada village and they were blessed with a daughter. Since 8 months Savarapu

Prasad Kumar was torturing Valluri Anusha to sleep with him and fulfill his sexual desire. Fearing that disputes will arise if she intimated the same to her husband and her in-laws, she remained silent. Since 4 months Valluri

Bebi (accused herein) is calling Anusha to her house stating that Prasad is having effection towards her and tried to persuade her to sleep with him; 2 Fair Judgment in C.C.56/2017 however Anusha did not agree for the same. About 15 days back the accused Valluri Bebi kept Anusha and Prasad Kumar in her house and tried

Anusha to surrender to Prasad, but however she pushed her and ran away from there. Prasad stood on the daba infront of the house of Anusha and making gestures by seeing her and pelting stones and pouring water on her.

Anusha was scared and did not inform to anyone. Being so, on 15.6.2016 when Anusha was cooking in her home, Prasad came on to the road near her house and making gestures. In the meanwhile her husband and in-laws who went to the fields returned home and on seeing them Prasad escaped. Later the father of Anusha came and placed the matter before the elders and on 20.6.2016 meeting was held and the village elders admonished Prasad.

However he did not listen to their words. The husband of Anusha was uttering her to return to her parental house. As the accused did not mend his ways the present complaint.

3.Basing on the report of Anusha, a case was registered vide

Cr.No.96/2016 for the offences under Sec.448, 376 r/w 511 IPC and Sec.354

(a)(2) IPC and Sec.7 r/w 8 of POCSO Act against Prasad Kumar and the present accused Valluri Bebi and took up for investigation. During the course of investigation, the investigating officer visited the scene of offence, prepared rough sketch and recorded the statements of the witnesses. As per the proceedings vide C.No.000/PRO/SDPO-K/2016 dated 31.12.2016 the section of law under Sec.448, 376 r/w 511 IPC and Section 7 r/w 8 of

POCSO Act were deleted. Prasad being a juvenile case was split up and after completion of investigation on satisfaction that the guilt of accused Bebi is made out, the present charge sheet filed.

4. The case was taken on file for the offence U/S.354(a)(2) IPC against the accused and the same was numbered as C.C.No.56/2017 on the file of

III Addl. Judicial Magistrate of First Class, Kakinada.

3 Fair Judgment in C.C.56/2017

5. After appearance of accused copies of documents were furnished to her

U/S.207 Cr.P.C. Accused was examined U/S.239 Cr.P.C. Charge under

Sec.354(a)(2) IPC was framed, read over and explained to her for which she denied the same, pleaded not guilty and claimed to be tried.

6. The prosecution on being directed to adduce the evidence on their behalf to substantiate the guilt of accused for the offence leveled against her, got examined PW1 to PW6 and got marked Ex.P1 to Ex.P4 on their behalf.

7. After completion of prosecution evidence, Accused was examined

U/S.313 CrPC by explaining the incriminating material appearing against her for which she once again denied the same and pleaded not guilty. However the accused did not choose to adduce any defense evidence on his behalf.

8.When the matter was in the stage of arguments, vide proceedings of

Hon'ble Chief Judicial Magistrate, Rajahmahendravaram, vide proceedings

No.338, dt.26.07.2019, the case was transferred to this court.

9. Heard the APP for the State and the counsel for accused.

Now the point which stood up for determination is :-

Whether the prosecution was able to establish the guilt of the accused for the offence u/s 354(a)(2) IPC beyond all reasonable doubt?

10.Point :-

The defacto complainant Valluri Anusha was examined as PW1 who testified that prior to 8 months from the date of lodging complaint that one

Prasad Kumar used to harass her to fulfill his sexual desire. This being so, after 4 months from the said date the accused herein called PW1 and insisted her to fulfill the desire of Prasad. PW1 refused for the same and fearing that disputes will crop up did not expose the same to any of her 4 Fair Judgment in C.C.56/2017 family members. This being so, 15 days prior to filing of the report the accused called her to her house and pushed her inside the room and bolted the door from outside and Prasad was present inside the room and when he tried to catch her she escaped from his clutches. Again on 15.6.2016 at about 10.30 a.m., again the accused called her while she was present in her house and pushed her inside her house and bolted the doors from outside.

Then PW1 disclosed the said fact to her in-laws who called her and placed the matter before the elders. However Prasad replied that they may do whatever they want. As the said matter was not resolved before the elders that PW1 submitted Ex.P1 report before the police seeking redressal.

11.PW2 is the father of PW1 who disclosed that the house of Savarapu

Prasad is situated opposite to the house of his sister Santhakumari. PW1 informed him that Prasad used to throw stones and misbehave with her. The accused who is aunt of the said Prasad used to insist PW1 to have an illegal contact with Prasad, but PW1 did not reveal the same to anybody. On one day the accused pushed PW1 into her house and bolted the doors while

Prasad was present inside the house. PW1 came out crying and informed the same to Santha Kumari and others who raised a dispute and placed the matter before the elders. Thereafter the said matter was informed to PW2.

He went to the village and again placed the matter before the elders who questioned the accused about her behaviour but however she denied the allegations levelled against her.

12.PW3 is a circumstantial witness who disclosed that about 2 ½ years back one Valluri Chinnabbulu who is the father-in-law of PW1 came and informed him that the accused is pressurizing PW1 to have illegal relation with one Savarapu Prasad. Thereupon PW3 requested Chinnabbulu to place the matter before the elders. Accordingly the matter was placed before 5 Fair Judgment in C.C.56/2017

Panchayat at Ramulavari temple in SC peta and called PW1 and the accused.

While PW1 revealed that the accused pressed her to go with Savarapu

Prasad the accused denied the said allegations and went away.

13.The testimony of PW.4 who is a circumstantial witness and maternal aunt of PW.1 is in corroboration with the testimony of PW1 who disclosed that Savarapu Prasad used to harass PW1 to have a relationship with him and satisfy his lust. The accused also used to insist for the same and on one day she called PW1, pushed her into her house in a room where Prasad was present but however PW1 managed to escape from there. Thereafter the matter was placed before the elders but however accused did not confess her mistake. Hence the matter was referred to the police.

14.PW.5 and PW.6 are the investigating officers in this matter who recorded the statements of PW1, registered a crime and on completion of investigation filed charge sheet against the accused.

15.Apparently except PW1, there are no direct eye witnesses to the alleged incident. However it is pertinent to note that PW1 to PW.4 were all consistent throughout with regard to the fact that one Prasad harassing PW1 and demanding her to have illegal relationship with him and to fulfill his sexual desire. That the accused herein who is the relative of Prasad also used to insist PW1 for the said relationship and that she on one occasion even pushed PW1 into a room in her house where Prasad was present to enable him to get his lust satisfied. However that PW1 managed to escape from the scene. Apparently on completion of investigation since Prasad happened to be a juvenile in conflict with law, that the case was split up against the present accused and Prasad and separate charge sheet filed against Prasad Kumar before Juvenile Court. Now the present case is only against the accused.

6 Fair Judgment in C.C.56/2017

16.At this juncture I deem it pertinent to reproduce the contents of section 354(a)(2) IPC which reads as under for better appreciation as to whether the acts of the accused complained of attracts her guilt.

Sec.354-A Sexual harassment and punishment for sexual

harassment: (1)A man committing any of the following acts—

1. physical contact and advances involving unwelcome and explicit sexual overtures; or

2. a demand or request for sexual favours; or

3. showing pornography against the will of a woman; or

4. making sexually coloured remarks, shall be guilty of the offence of sexual harassment1.

2. Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprison- ment for a term which may extend to three years, or with fine, or with both.

3. Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

17.Thus, to bring home the guilt of the accused, the main aspects to be established before this court are (1) that Prasad has in any manner harassed

PW1 to satisfy his sexual desire (2) and further that the accused has insisted

PW1 to satisfy Prasad. The other most essential aspects to be appreciated here is the nexus of the accused in connection with the said crime and her relationship with the said Prasad so as to trying to insist PW1 to commit such an offence. With this regard except a statement that the accused is related to PW1, there is no other material placed before this court to show that the accused is in any manner related or connected with the accused so as to entertain the desire to satisfy Prasad and insisted PW1 to accept such a request. It is pertinent to note that in fact PW1 to PW.4 together reiterated that Prasad used to insist PW1 to satisfy his lust. To be more precise since 8 months prior to filing of the said report Prasad used to insist PW1 to satisfy his lust, but however fearing that disputes will crop up, she did not disclose the same to anybody. In fact it is only after the accused has entered into scenario wherein she insisted PW1 continuously and on one occasion pushed 7 Fair Judgment in C.C.56/2017 her into a room where Prasad was present and bolted the doors from outside that the offence has taken its aggravated form.

18.It is submitted by PW1 that just before filing of Ex.P1 report that while she was cooking in her house, in the absence of her family members who went to fields for work, that the accused came and making gestures from outside of her house. In the meanwhile her husband and her in-laws returned from the fields and noticed the same upon which the accused managed to escape from the scene. Thus her in-laws themselves noticed such an incident and questioned PW1 upon which she disclosed all the said details to them which gave rise to placing the matter before the elders. Here it is pertinent to note that while deposing before this court PW1 has mentioned that the accused was making gestures towards her while standing outside infront of her house on the road and her in-laws who were returning from the fields noticed the same upon which the accused escaped.

However perusal of Ex.P1 report disclose that on the ill fated day while PW1 was cooking food, that the accused managed to enter into her house, closed her mouth and dragged her into her bed room, pushed her on to the cot and tried to outrage her modesty in order to fulfill his sexual desire; in the meanwhile her in-laws came to the house and saw the same and accused escaped and she disclosed all the said details to her in-laws which lead to placing the matter before the elders. Thus the events which gave rise to filing of Ex.P1 report or for placing the matter before the elders as narrated by PW1 before this court is entirely different from what was stated in Ex.P1 report. Moreover gestures alleged to be made from outside the house cannot be equated with Prasad having trespassed into her house and prevented her from raising cries and trying to outrage her modesty in her bed room in her own house. The said contradictions definitely effects the present version since there is a sea change in the events.

8 Fair Judgment in C.C.56/2017

19.Even assuming for a moment that inspite of such serious irregularities that the statements of PW1 to PW4 was consistent throughout with regard to

Prasad insisting PW1 to fulfill his sexual desire while the accused also insisted her to satisfy Prasad, apparently PW2 to PW.4 are circumstantial witnesses. Astonishingly though Ex.P1 report and her deposition before this court goes to show that on the ill fated day when Prasad was making gestures or made attempt to outrage her modesty was noticed by her husband and her in-laws apparently they were not examined before this court. PW.4 though narrated certain facts, he remained silent with regard to his having witnessed any such acts. Be that as it may, it cannot be ignored that all these events only paves ways to reflect Prasad having made certain acts so as to fulfill his sexual desire. Thus apparently except PW1, there is no direct or circumstantial evidence placed before this court to show the specific overt acts of the accused with this regard. Even as per PW2 to PW4 that the accused was called before the elders and questioned, she surprisingly denied all the allegations leveled against her. Thus except PW1, there is no other witness to speak with regard to culpability of the accused.

Astonishingly PW1 did not choose to raise her single finger or intimate the same to any of the family members that the accused has proceeded to the extent of throwing her into room in which Prasad was present and bolted the doors from the outside. If that were so, no person would remain silent without disclosing the same atleast to her parents or siblings. Apparently

PW1 was silent throughout till the time her husband and her in-laws personally noticed the same. For this aspect, it cannot be said that PW1 might be deposing false but however the question initially arise for consideration is as to the incriminating material present against the accused to see her involvement with this offence and that she acted in such a manner detrimental to the interest of PW1 so as to attract the offence under 9 Fair Judgment in C.C.56/2017

Sec.354(a)(2) IPC. Apparently there is no direct or circumstantial evidence with this regard.

20.Moreover since the evidence is effected with material inconsistencies and moreover as it is specifically elicited from PW.3 that when he was examined in Juvenile case against Savarapu Prasad that admittedly he deposed that he does not know anything about the present case, while in this case during his cross examination deposed involvement of the accused and Prasad for committing the offence against PW1. Neither the prosecution nor PW3 choose to explain under what circumstances he is changing his version while deposing before the court. Whatever may be the veracity behind the alleged contention, apparently there is no direct or circumstantial evidence placed against the accused to show her involvement with this offence. Merely on the self serving testimony of PW1, since it is also effected with inconsistencies and contradictions it cannot be safely concluded that prosecution can be said to have bring home the guilt of the accused beyond reasonable doubt. Further the burden of proof lying on the prosecution is that of proof beyond reasonable doubt and in case when there is a lingering doubt as to the guilt of the accused, the benefit should always flow to the accused. In these circumstances, this court is of considerable opinion that the accused is undoubtedly entitled for benefit of doubt. This point is answered accordingly.

21.In the result, Accused is found not guilty for the offence under

Secs.354(a)(2) IPC and is acquitted for the said offence under Section 248(1)CrPC. No property. Her bail bonds shall stand cancelled after lapse of appeal time.

Dictated to the stenographer, transcribed by her, corrected and

pronounced by me in Open Court on this the 30 th day of October, 2019.

PRINCIPAL JUNIOR CIVIL JUDGE CUM

JUDICIAL FIRST CLASS MAGISTRATE,KAKINADA

10 Fair Judgment in C.C.56/2017

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution:- For Defence:-

PW1 Valluri Anusha. None

PW2 Srimanthula Raju.

PW3 Tekumudi Ramakrishna.

PW4 Valluri Shantha Kumari.

PW5 A.Krishna Kumari.

PW6 V.L.V.K.Sumanth.

EXHIBITS MARKED

For Prosecution:

Ex.P1 : Report given by PW1 to police.

Ex.P2 : Statement of PW1 recorded by police.

Ex.P3: FIR in Cr.No.96/2016 of Pedapudi Police station.

Ex.P4 : Rough sketch of scene of offence.

For defence :- Nil

M.Os Marked -Nil-

Prl. Junior Civil Judge-cum-Judicial

Magistrate of First Class, Kakinada.

11 Fair Judgment in C.C.56/2017

CALENDAR AND JUDGMENT

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE CUM JUDICIAL

FIRST CLASS MAGISTRATE, KAKINADA

CALENDER CASE NO. 56 /2017

Date of offence:15.06.2016 Date of complaint:28.06.2016 Date of taken on file:24.01.2017 Date of apprehension of accused:10.03.2017 Date of commencement of trial:07.07.2017 Date of close of trial:17.07.2019 Date of sentence of order:30.10.2019 Complainant: State represented by the Sub Inspector of Pedapudi PS

Particulars of the accused:-

Valluri Bebi, W/o Annavaram, 40 years, SC Madiga, Domada village, Pedapudi Mandal (A2).

Nature of offenceU/Secs. 354(a)(2) IPC.

Finding of the courtAccused is found not guilty for the offences under Sec. 354(a)(2) IPC .

In the result, Accused is found not guilty for the offence under

Secs.354(a)(2) IPC and is acquitted for the said offence under

Sec.248(1)CrPC. No property. Her bail bonds shall stand cancelled after lapse of appeal time.

PRINCIPAL JUNIOR CIVIL JUDGE CUM

JUDICIAL FIRST CLASS MAGISTRATE

KAKINADA

12 Fair Judgment in C.C.56/2017

1

FAIR JUDGMENT

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE CUM JUDICIAL

FIRST CLASS MAGISTRATE, KAKINADA

PRESENT:- Smt. K.V.L. HIMABINDU,

Principal Junior Civil Judge cum Judicial First Class Magistrate

Thursday, the 31st day of October, 2019.

OS.No.75/ 2017

Between :

Gedela Ganga Ratnam, W/o Annavaram, 45 years, house wife, D.No.11-643, Pagadalapeta, Yanam Road,

Kakinada Rural Mandal. ...Plaintiff.

And

Karri Venkata Lakshmi, W/o Veerraju, 38 years, D.NO.11-674/13, Pagadalapeta, Yanam Road, Kakinada Rural Mandal.…Defendant.

This suit is coming before this court on 30.10.2019 for final hearing in the presence of Sri Rafi Ahmad Kidwai, Advocate for the Plaintiff and of Sri T.P.R.Chandra Sekhar, Advocate for Defendant and the matter having been heard and stood over for consideration till this day, this court delivered the following :

J U D G M E N T

The present suit is filed seeking the relief of permanent injunction restraining the defendant and her men from interfering into the peaceful possession and enjoyment of the plaintiff over the plaint schedule property.

2. The plaint averments in brief are as under :-

Plaintiff is the permanent resident of Pagadalapeta, Yanam Road,

Kakinada where she is possessing an extent of Ac.0.02 cents of land in

S.No.207/3. In fact plaintiff is in possession of the plaint schedule property since more than 35 years and recognizing her possession Government and the MRO has issued possession certificate in the name of the plaintiff on 20.12.2014. Even before issuance of possessory patta, plaintiff was residing 2

FAIR JUDGMENT

in the schedule property by raising a thatched house. However it became dilapidated and due to financial crisis, the plaintiff could not reconstruct the same. Hence she shifted to a nearby house and at present plaint schedule property is a vacant site. Thus no tax was also levied. However that the defendant bore an evil eye over the schedule property and is illegally trying to interfere into the possession and enjoyment of the plaintiff over the schedule property. Unable to resist the same, the plaintiff approached the court seeking redressal.

3.Written statement is filed by the defendant denying the plaint averments. It is submitted that Government gave an extent of Ac.0.02 cents in S.No.207/3P in favour of Chekka Satyaveni in the year 1992 with flat

No.309 and a patta was also issued accordingly. Chekka Satyaveni constructed house in the said site and also obtained electricity connection in her name. However due to financial problems she along with her husband

China Satyam sold the said property to the defendant on 21.8.2004 and handed over vacant possession of the plaint schedule property to the defendant. At the time of taking possession there was an old thatched house in a dilapidated condition and the defendant constructed the same and residing there along with her family members since then. The said thatched house collapsed recently and in its place the defendant started construction of house with asbestos roof. The plaintiff who is having house near the defendant’s property in order to grab her property filed this false suit with all false allegations. Possessory patta submitted by the plaintiff is a fabricated one obtained by influencing revenue authorities and the photo relied upon by the plaintiff also does not correspond to the plaint schedule property and only in order to get favourable orders from the court that the false documents are fabricated by the plaintiff. The defendant even gave an 3

FAIR JUDGMENT

amount of Rs.1,85,000/- to Ande Ramakrishna for construction of her house.

However only to cause wrongful loss to the defendant that plaintiff filed this false suit with all false averments. Thus while denying the plaint averments and possession of the plaintiff over the schedule property, in all prayed to dismiss the present suit as devoid of merits.

4.After hearing rival contentions of both the parties, the following issues were settled for trial by my predecessor :

1. Whether the plaintiff is in peaceful possession and enjoyment of the plaint schedule property ?

2. Whether the plaintiff is entitled for permanent injunction upon the plaint schedule property ?

3. To what relief ?

5.During the course of trial, the plaintiff got examined herself as PW1, two third parties as PW2 and PW3 and placed reliance on Ex.A1 and Ex.A2.

To rebut the case of the plaintiff, the defendant got examined herself as DW1 and independent witnesses as DW2 to DW4 and placed reliance on Ex.B1 to

Ex.B3.

6.Heard both sides. Perused material on record.

7.ISSUE No.1 and 2 :

Since both the issues are intertwined, for brevity and convenience sake they are discussed together.

8.The case of the plaintiff while getting herself examined as PW1 is that recognizing her possession that Government and MRO has issued possession certificate dated 20.12.2004 which is marked as Ex.A1. Even before issuance of patta she has raised a thatched house in the plaint schedule property, it became dilapidated and hence she got shifted to a nearby house. At present 4

FAIR JUDGMENT

it is only a vacant site with remnants of thatched house. However that defendant is highhandedly trying to grab the same and causing illegal interference into her possession and enjoyment and hence the present suit.

9.To further suffice her contention of having been granting possessory certificate and of having been in possession and enjoyment of the schedule property she further got examined independent witnesses as PW2 and PW3 who all categorically testified the factum of possessory patta been granted in the name of the plaintiff where she constructed a thatched house and that as it became dilapidated that she got shifted to a nearby house.

10.During the course of cross examination of PW2 it is elicited from him that entire lands in Pagadalapeta village are Government lands where

Government issued pattas. Though details of the year of granting of patta is mentioned in the chief affidavit of PW2, during the course of cross examination he expressed his ignorance with regard to the year in which any such patta was granted or nature of the patta possessed by the plaintiff and moreover revealed that he has not disclosed any such details to the counsel while getting prepared his chief affidavit.

11.As per PW3, he was also granted a patta in the year 2004 and he also admitted that all the lands in Pagadalapeta are Government lands. It is further admitted that Government has lay out the said lands and granted pattas to the landless poor. During cross examination he contended that the thatched house of the plaintiff got collapsed about 6 to 7 years back. Though he cannot give exact date but time and again reiterated that the plaint schedule property is possessed by the plaintiff herein. He further disclosed that he has never seen the defendant in Pagadalapeta and further that previously he worked as Ex-MPTC member of the said locality and has no necessity to depose false.

5

FAIR JUDGMENT

12.The testimony of PW1 to PW3 been thus, to rebut the same the defendant herself stepped into witness box and got examined as DW1 and her main contention is that in fact Government has issued patta in favour of

Chekka Satyaveni in S.No.207/3P of an extent of Ac.0.02 cents. This being so, that out of financial necessities that the said property which is the plaint schedule property herein was sold by her to the defendant herein and that since the said date that she is in possession and enjoyment of the same. It is further submitted that in fact she also constructed a house in the schedule property and is residing there and in fact it is not at all a vacant site as alleged by the plaintiff. That only in order to mislead the court that she has placed reliance on Ex.A2 photographs and Ex.A1 cannot be relied upon since it is only a possessory patta and that no such patta was in fact issued.

13.It is pertinent to note here that it is even stressed upon that the plaintiff in the plaint and in her chief affidavit has categorically disclosed the year of granting of patta as 20.12.2014. That in such circumstances, no reliance can be placed on Ex.A1 and that her entire case is falsified. This being so, it is pertinent to note that at the time of marking of the documents, Ex.A1 was marked as patta which was dated 20.12.2004. Thus apparently the date mentioned in the plaint seems to be only a typographical mistake wherein the date might have been inadvertently mentioned as 20.12.2014 instead of 20.12.2004. Be that as it may, when the document relied upon by the plaintiff is very much present before this court, discrepancy in mentioning bare date as 20.12.2004, documentary evidence cannot be let in to be brushed aside by any typographical mistake which crept in inadvertently in the chief affidavit or in the plaint. Moreover plaintiff categorically mentioned that such patta was granted to her about more than 15 years back. Thus the said anomaly is not fatal.

6

FAIR JUDGMENT

14.Proceeding further, while the plaintiff is placing reliance on Ex.A1 possessory patta, the defendant is placing reliance on Ex.B1 original patta in the name of Chekka Satyaveni from whom this defendant is said to have subsequently purchased her property. Now proceeding further to appreciate if the defendant could brush aside the contention of the plaintiff with regard to her alleged right and possession, during the course of cross examination of DW1, it is elicited from her that all the entire house sites in the locality of

Pagadalapeta are possessory pattas issued by Government of an extent of

Ac.0.02 cents each. Thus it is stressed upon that when DW1 herself admitted issuance of possessory patta, that merely because the defendant contended that pattas were granted to landless poor but Government never issued possessory patta recognizing their possession cannot be entire relied upon.

This being so, it is further stressed upon by the counsel for the plaintiff that though the defendant is placing reliance on Ex.B1 patta, it is standing in the name of one Satyaveni. Pattas are not alienable, as such defendant cannot claim herself to have acquired any right, title or possession over the said document. Admittedly Ex.B2 electricity bills are also standing in the name of

Satyaveni only and thus there is no direct evidence to show her alleged possession except by way of oral testimony of DW1 to DW4.

15. DW2 during the cross examination revealed that he has purchased his land in the year 2004 inspite of noticing the fact that patta lands are not alienable. However he himself admitted that he got his document executed in his name in the presence of elders but however clarified that since the said documents are not registerable, only as a formality it was executed.

DW2 is the husband of DW1 who tried to support the case of the defendant to her entirety that they have purchased the said property from Satyaveni and given possession over the same.

7

FAIR JUDGMENT

16.DW3 an independent witness also corroborated the contents of the defendant and reiterated that to his knowledge the defendant has constructed house in the plaint schedule property and is residing there.

During the cross examination it is elicited from him that he does not know from whom Chekka Satyaveni purchased the property and cannot give boundaries of the schedule property. He is residing in the street opposite to the school in Pagadalapeta which is separated by 4 to 5 streets from his house. He has no knowledge with regard to granting of pattas by the

Government in Pagadalapeta and hence it was contended that this witness in fact does not have any knowledge with regard to facts of the case and was examined only at the behest of the defendant to support their claim. DW4 also though supported the case of the defendant and contended that defendant constructed house and is residing there from 3 to 4 years, as already mentioned above, except oral testimony of these witnesses there is no direct evidence placed on record to suffice their contention.

17. At this juncture I deem it pertinent to mention here the Judgment of his Lordship in Anathula Sudhakar vs P. Buchi Reddy (Dead) By Lrs &

Ors reported in AIR 2008 SC 2033 wherein it was held that :-

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

2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction 8

FAIR JUDGMENT

simpliciter, without claiming the relief of possession.

3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction.

Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.

Thus, that definitely on any count bare suit for injunction does not lie in the peculiar facts and circumstances of this Case.

18.Perusing the evidence placed on record, in fact while the plaintiff is placing reliance on Ex.A1 possessory patta, defendant is placing reliance on

Ex.B1 which is patta standing in the name of Satyaveni which she said to have purchased from her subsequently. Whatever may be the legality of flow of title from Chekka Satyavehi to the defendant, the moot point which needs consideration is that while the plaintiff is claiming right over the schedule property under Ex.A1, defendant is disputing the same in light of another patta Ex.B1. In such circumstances definitely it is very much expedite to establish the factum as to the genuinenity of Ex.A1 and Ex.B1 since both the parties are claiming right, title and possession over the said property by virtue of pattas alleged to have been granted with regard to S.No.207/3 of an extent of Ac.0.02 cents. This being so, though the defendant is sternly disputing the veracity of Ex.A1, the plaintiff did not choose to examine any of the revenue officials to substantiate her contention with regard to genuinenity of Ex.A1. Since there is no material on record to establish the factum of possession of the plaintiff over the plaint schedule property except

Ex.A1, it cannot be ignored that unless and until it is validly established 9

FAIR JUDGMENT

before this court that Ex.A1 was validly issued to the plaintiff and that by

virtue of it she is put into possession and enjoyment of the same. Except oral testimony and rival contentions of both the parties, there is no cogent and reliable evidence to suffice their contention and in light of established principles that when title and possession itself is under a cloud that bare suit for injunction does not lie, this court is of considerable opinion that plaintiff cannot be said to be entitled for the relief of permanent injunction as prayed for. These issues are answered accordingly.

19.Issue No.3 :

In the result, the present suit stands dismissed. No costs.

Dictated to the stenographer, transcribed by her, corrected and

pronounced by me in Open Court, on this the 31st day of October, 2019.

PRINCIPAL JUNIOR CIVIL JUDGE CUM

JUDICIAL FIRST CLASS MAGISTRATE

KAKINADA.

APPENDIX OF EVIDENCE

WITNESS EXAMINED

For Plaintiff:

PW1: Gedela Ganga Ratnam.

PW2: Surada Ramana.

PW3: Perumalla Satyam.

For Defendant:

DW1: Karri Venkata Lakshmi.

DW2: Karri Veerraju.

DW3: Sangadi Appayyamma.

DW4: Perumalla Bhagirthi.

DOCUMENTS MARKED

For Plaintiff: Ex.A1:Possession certificate issued by MRO dated 20.12.2004. Ex.A2:Two photographs with C.D.

10

FAIR JUDGMENT

For Defendant:

Ex.B1: Original Patta in the name of Chekka Satyaveni.

Ex.B2:Electricity bill in the name of Chekka Satyaveni.

Ex.B3:Photographs six in number with C.D.

PJCJ CUM JFCM

1 Fair judgment

IN THE COURT OF THE II ADDL.JUNIOR CIVIL JUDGE CUM II ADDL.JUDICIAL

FIRST CLASS MAGISTRATE, KAKINADA.

PRESENT:- Smt. K.V.L. HIMABINDU,

Principal Junior Civil Judge cum Judicial First Class Magistrate,

FAC/ II Addl.Junior Civil Judge, Kakinada.

Thursday, the 31 st day of October, 2019

O.S.No.177/2017

Between:

Vedantham Srinivas.

...Plaintiff.

And

1. Kerla Venkata Ramarao.

2. Mohammad Rahimkhan.

…Defendants.

The suit is coming before this court on 30.10.2019 for final hearing in the presence of Sri V.Sreerama Murthy, Advocate for the Plaintiff and of Sri M.R.Sharief, Advocate for 2nd defendant and 1st defendant remained exparte and the matter having been heard and stood over for consideration till this day, this court delivered the following:

J U D G M E N T

The present suit is filed based on the promissory note for recovery of an amount of Rs.1,65,800/- along with interest and costs.

2.The plaint averments in brief are as under:

The defendants 1 and 2 jointly borrowed an amount of Rs.1,00,000/- from the plaintiff on 1.4.2014 and duly executed promissory note agreeing to repay the same together with interest at the rate of Rs.2/- p.c.p.m.

However inspite of repeated demands the defendants failed to discharge their liability. The plaintiff thereupon got issued a legal notice dated 8.12.2016 calling upon the defendants to discharge their liability. The defendants received the same and got issued reply dated 20.12.2016 denying the averments in the legal notice and their liability under the suit promissory note. The plaintiff thereupon got issued a rejoinder dated 21.12.2016 and also furnished a copy of promissory note to the 2 Fair judgment defendants. The defendants received the same but however did not choose to respond to the legal notice nor discharged their liability. As the defendants are not agriculturists, they are not entitled for the benefits of

Act 4/1938, 7/1977, 45/1987 and 2/1990. Since the defendants failed to discharge their liability, the present suit for recovery of the said amounts along with interest and costs.

3.First defendant remained exparte while second defendant filed his written statement denying the plaint averments. It is submitted that this defendant does not have any acquaintance with the plaintiff and that he had no necessity or occasion to borrow any amount from the plaintiff. While denying the creditor and debtor relationship between both the parties, it is submitted that his signatures are rank forgery and that the suit promissory note is fabricated only to harass the defendant and for wrongful gain and hence in all prayed to dismiss the same as devoid of merits.

4.After hearing rival contentions of both the parties, the following issues were settled for trial:

1. Whether the suit promissory note is forged one or not?

2. Whether the plaintiff is entitled for recovery of amount under suit promissory note as prayed for?

3. To what relief?

5.During the course of trial, the plaintiff got examined himself as

PW1 and one of the attestor as PW2 and placed reliance on Ex.A1 to

Ex.A4 documents. Second defendant did not choose to adduce any evidence on his behalf inspite of granting ample time and opportunity and hence his evidence is closed as nil.

6.Heard both sides. Perused material on record.

7. ISSUE No.1 :

The plaintiff got examined himself as PW1 and filed his chief affidavit in lieu of his chief examination and reiterated the entire contents as in the 3 Fair judgment plaint. In a nutshell his contention goes to show that the defendants jointly borrowed an amount of Rs.1,00,000/- from the plaintiff under Ex.A1 promissory note but however failed to discharge their liability. Issuance of

Ex.A2 legal notice was of no avail wherein the defendants got issued a reply denying their liability. The reply notice is marked as Ex.A4. Thereupon the plaintiff got issued a rejoinder and also furnished a copy of promissory note to these defendants calling upon them to discharge their liability.

Ex.A3 is the rejoinder. Inspite of receipt of the same the defendants did not choose to respond nor discharged their liability and hence the present suit.

8.To further corroborate his testimony the plaintiff got examined one of the attestor as PW2 whose testimony is on parallel lines with that of PW1 with regard to passing of consideration under Ex.A1 pursuant to which defendants 1 and 2 jointly executed Ex.A1 promissory note in the presence of PW2, another attestor and also scribe.

9.The main contention taken by the defendant in his written statement is that he totally denied having any acquaintance with the plaintiff. This being so, in fact nothing crucial was confronted to PW1 during his cross examination with regard to acquaintance between both the parties.

However astonishingly during the cross examination of PW2, it is suggested to him that second defendant has given security for the debt borrowed by the first defendant, thereby suggesting that he did not obtain any loan from the plaintiff. In fact the said contention goes to show that defendant No.2 admitting having undergone a monitory transaction involving himself and first defendant. This being so, it is further suggested to PW2 that he signed on empty promissory note as attestors and no transaction took place in his presence. There is no slightest suggestion that the signature of the defendant is a forged one. It is also not understood what the defendant meant by suggesting empty promissory note as there is no specific 4 Fair judgment reference that by receiving the said amount he meant that the contents of the promissory note were left blank. If he meant that PW2 affixed his signature on the blank promissory note containing the signature of this defendant, in such circumstances, it will be only for the defendant to establish under what circumstances such a document came into existence.

However by posing such contradictory suggestions, it reflects that the defendant is on one hand admitting having executed a document along with first defendant. It is also pertinent to note that it was again confronted to PW2 wherein he expressed his ignorance as to whether the first defendant borrowed an amount of Rs.10,000/- from the plaintiff and at that time plaintiff obtained the signatures of the second defendant as a surety but however that the plaintiff filed this suit by creating promissory note. The said suggestion entirely falsifies the contention of the second defendant taken in his written statement that he has no acquaintance with the plaintiff at all. Added to it, he is admitting his signature on Ex.A1 promissory note.

10.Keeping this aspect on one side, if it is the contention of the second defendant that he affixed his signature as a surety only and that consideration of Rs.10,000/- passed to the first defendant only, burden of proof undoubtedly lies upon the second defendant to establish the said contention. However nothing crucial could be brought on record to suffice the same.

11.Though financial capacity of the plaintiff was also assailed, during the cross examination of PW1 and PW2 they categorically deposed that both of them are doing real estate business. Nothing could be elicited to the contrary to suspect the financial capacity of the PW1. On the other hand, nothing crucial was elicited during the cross examination of PW1 and PW2 to discard their testimony. As already discussed above, the second 5 Fair judgment defendant utterly failed to suffice his contention that his signatures on

Ex.A1 are a rank forgery. On the other hand his another contention that he affixed his signatures as a surety entirely brushes aside the plea of forgery.

In these circumstances, since the testimony of PW1 and PW2 is consistent throughout and as the defendants failed to rebut the same, it can be said that Ex.A1 suit promissory note is true, valid and binding on the defendants 1 and 2 and further that second defendant failed to establish his contention that his signatures on the alleged promissory note is a forged one. This issue is answered accordingly against the defendants.

12.Issue No.2:

It is categorically submitted by PW1 that after borrowing loan under

Ex.A1 since defendants failed to discharge their liability that he got issued legal notice (Ex.A2). A reply was issued by the defendants denying the execution of promissory note and their liability. Thereupon a rejoinder was also got issued by the plaintiff (Ex.A3) and also furnished a copy of suit promissory note along with rejoinder. However since the defendants failed to respond to the legal notice or discharge their liability, the present suit.

Since there is no evidence on record to show that defendants discharged their liability, this court is of considerable opinion that plaintiff is entitled for the said amounts along with interest and costs as prayed for. This issue is answered accordingly in favour of the plaintiff.

13.Issue No.3:

In the result, the suit is decreed with costs in favour of the plaintiff for recovery of an amount of Rs.1,65,800/- (Rupees One Lakh Sixty Five

Thousand and Eight Hundred Only) from the defendants 1 and 2 jointly and severally along with interest at 12% per annum from the date of suit till the 6 Fair judgment date of decree and thereafter at 6% per annum from the date of decree till realization on the principal sum of Rs.1,00,000/- (Rupees One Lakh Only).

Dictated to the stenographer, transcribed by her, corrected and

pronounced by me in Open Court on this the 31 st day of October, 2019.

Sd/- K.V.L.Hima Bindu

PRINCIPAL JUNIOR CIVIL JUDGE CUM

JUDICIAL FIRST CLASS MAGISTRATE

FAC/II ADDL.JUNIOR CIVIL JDUGE,

KAKINADA

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF :

P.W1: Vedantham Srinivas.

P.W2: Patemata Rajarao.

FOR DEFENDANTS: None.

DOCUMENTS MARKED

FOR PLAINTIFF :

Ex.A1/1.4.2014: Suit Promissory note executed by defendant in favour of plaintiff for Rs.1,00,000/-.

Ex.A2/8.12.2016: Office copy of the legal notice addressed to defendants.

Ex.A3/21.12.2016: Rejoinder got issued by the plaintiff to defendants.

Ex.A4/20.12.2016: Reply got issued by the defendants to the plaintiff.

FOR DEFENDANT: Nil.

Sd/- K.V.L.Hima Bindu

PJCJ CUM JFCM

FAC/II A.JC.J

1 Fair judgment in O.S.127/2017, dt.23.04.18

IN THE COURT OF THE I ADDL. JUNIOR CIVIL JUDGE, KAKINADA

PRESENT:- Smt. K.V.L. HIMABINDU,

1 st Addl. Junior Civil Judge

Monday, this the 23 rd day of April, 2018

O.S.127/2017

Between: Chodisetty Varalakshmi ..Plaintif

And

Katta Vijaya Raju ..Defendant

The suit coming before this court on 16.04.2018 for final hearing in the presence of Sri Mallamapalli Sarveswara Rao, advocate for plaintif and of Sri M.Mohan Kumar, advocate for defendant, and having been heard and stood over for consideration till thisn day this court delivered the following :

J U D G M E N T

The present suit is filed based on promissory note seeking recovery of an amount of Rs.1,23,930/- together with interest and costs.

2.The plaint averments in brief are as under:

The defendant borrowed an amount of Rs.65,000/- from the plaintif in Kakinada on 26.02.2014 for the purpose of his family expenses agreeing to repay the same along with interest at the rate of 24% per annum and duly executed promissory note on the even date evidencing the same. However inspite of repeated demands he failed to discharge his liability. The plaintif got issued legal notice on 21.02.2014 demanding to repay the said amounts, but the defendant did not choose to repay the same. Hence the present suit.

3.The written statement is filed by the defendant denying the plaint averments. It is submitted that in fact the defendant borrowed an amount of Rs.5,000/- only from the plaintif for his family expenses and discharged the said loan. However at the time 2 Fair judgment in O.S.127/2017, dt.23.04.18 of said transaction the plaintif obtained the signature of the defendant on blank promissory note towards security. After repaying the loan he could not take back the empty promissory note. The plaintif misutilizing the said promissory note fabricated the same and got filed the present suit. While contending that the defendant did not receive consideration of an amount of Rs.65,000/- as alleged, prayed to dismiss the suit.

4.After hearing rival contentions of both parties the following issues were settled for trial :

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

2. Whether the said promissory note is supported by any consideration as alleged?

3. Whether the plaintif is entitled to the suit amount as prayed for?

4. To what relief ?

5.To substantiate his contention the plaintif got examined himself as P.W.1 and the attestor of the alleged promissory note as

P.W.2 and got marked Ex.A1 and Ex.A2 on his behalf. To rebut the case of the plaintif the defendant did not choose to adduce any evidence on his behalf.

6.Heard both sides. Perused material on record.

7.Issues 1 & 2:

For brevity and convenience sake as both the issues are inter twined, they are discussed together under the same head.

8.The plaintif got examined herself as P.W.1 and filed her chief affidavit reiterating the entire contents as in the plaint. It is her contention that the defendant borrowed an amount of Rs.65,000/- from her on 26.02.2014 and duly executed Ex.A1 promissory note.

Further to strengthen her contention with regard to the passing of consideration and execution of Ex.A1 promissory note, she got examined one of the attestors of Ex.A1 as P.W.2. He categorically 3 Fair judgment in O.S.127/2017, dt.23.04.18 revealed before this court as to his presence at the time of alleged loan transaction and passing of consideration.

9.It is pertinent to note that the defendant is not denying his signature on the alleged promissory note. It is his contention that in fact he obtained loan of Rs.5,000/- only from the plaintif during the year 2013 at which time the plaintif obtained his signature on a blank promissory note. Though he repaid the said amounts, he did not take back the said empty promissory note. Except bearaverment with the said regard, nothing could be elicited during the cross examination of P.W.1 and P.W.2 or any such evidence brought on record to show that Ex.A1 is the same promissory note which was executed by the defendant towards security in the year 2013 in connection with a loan transaction of Rs.5,000/-. Thus, the contentions of the defendant has no force.

10.This being so, it was argued that the plaintif could not give the exact date of the loan transaction since Ex.A1 is a fabricated document. However it cannot be ignored that when confronted, she revealed that it is in the month of February, 2014 and the date might be 23rd or 25th but she does not remember the exact date.

Appreciating the same, the date of execution of Ex.A1 is 26.02.2014 and in such circumstances, merely because she could not reveal the exact date, her testimony need not be totally brushed aside.

Undoubtedly there is some variation in the time of the transactions as alleged by P.W.1 to be between 3 p.m. to 5 p.m. and by P.W.2 to be between 2.30 p.m. to 3.00 p.m. As already mentioned above such slight variation cannot be said to be fatal to their case more so, when both of them disclosed that the loan transaction took in the house of Ramana, who is brother-in-law of the plaintif. Except for the said aspects, nothing crucial could be elicited during the 4 Fair judgment in O.S.127/2017, dt.23.04.18 cross examination of P.W.1 and P.W.2 to discredit their testimony.

Thus it can be said that in light of the testimony of P.W.1 & P.W.2 and Ex.A1 that consideration of an amount of Rs.65,000/- passed to the defendant and that Ex.A1 promissory note is true, valid and binding on him. These issues are answered accordingly.

11.Issue No.3:

It is submitted by the plaintif that inspite of repeated demands the defendant failed to discharge his liability. That he even got issued the legal notice the office copy of which is marked as Ex.A2. Hence contended that he is entitled for recovery of the said amounts together with interest. There is nothing brought on record to show that the defendant discharged his liability. Hence the plaintif is definitely entitled for recovery of the said amounts as prayed for. This issue is answered accordingly.

9.Issue No.4 :

In the result, the suit is decreed with costs for an amount of

Rs.1,23,930/- (Rupees One Lakh Twenty Three Thousand Nine Hundred and Thirty Only). The plaintif is entitled to interest at 6% per annum from the date of suit till realization on the principal sum of Rs.65,000/- (Rupees Sixty Five Thousand Only).

Dictated to the Personal Assistant, transcribed by her, corrected

and pronounced by me in Open Court on this the 23rd day of April, 2018.

Sd/- KVL Himabindu

I ADDL. JR. CIVIL JUDGE,

KAKINADA

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF;FOR DEFENDANT: P.W.1: Chodisetti VaralakshmiNIL P.W.2: Ch.Suryarao 5 Fair judgment in O.S.127/2017, dt.23.04.18

DOCUMENTS MARKED

For Plaintiff: Ex.A1/26.02.2014: Original promissory note executed by defendant. Ex.A2/-21.02.2017: Office copy of legal notice.

For Defendant: NIL

Sd/- KVL Himabindu

I A J C J