Kum K Vanisree

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IN THE COURT OF THE ADDL. ASSISTANT SESSIONS JUDGE

CHITTOOR.

Present: Kum K.Vanisree.

Additional Assistant Sessions Judge, Chittoor.

Monday, the 16th day of April, 2018.

S.C. No. 54 of 2016

Between:

The State represented by S.I of Police, Kalluru PS. … Complainant And:

1.Muragaiah Muttukumar, aged 27 years, son of Muragaiah, D.No.16, Bharathi Nagar, Sriperambadur, Kanjeepuram District, Tamilnadu State.

2.Kuppan Annadorai, aged 25 years, son of Kuppan, D.No.9 Kalakatheru Melkandrigal village, Nedumadhuru Post, Sankarakuppam Taluk, Villupuram district, Tamilnadu.

.... A1 & A2.

This case coming on this day i.e. 09-04-2018 before me for final hearing in the presence of Smt B. Leelavathi, Additional Public

Prosecutor for the complainant and of Sri B. Vijaya Kumar, Advocate for A1 & A2 and having stood over for consideration till today, this court delivered the following:-

J U D G E M E N T

The Sub Inspector of Police, Kalluru PS filed charge sheet against

A-1 and A-2 in Cr.No.79 of 2014 of Kalluru PS for the offenses

U/Sec.307, 353, 379, 120-B r/w 109 IPC, Section 20 (1) © (ii) (iii) (iv)

(vi) and (x), Section 29 (2) (b) r/w 29 (4) (a) (i) of A.P. Forest Act, 1967 r/w Rule 3 of A.P. Sandal Wood and Red Sanders Wood Transit

Rules,1969, Section 55 (2) of Biological Diversity Act, 2002.

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2. The brief averments of the case of the prosecution are that on 24-11-2015 at about 3-15 PM, L.W.3 B.V Subba Reddy, SI of Police received credible information about illegal transportation of Red Sander

Logs and he secured L.W.1 S. Mohan Babu and L.W.2 Karimulla and other staff and reached near Gundlamma Temple, near K.K. Peta on

Bheemavaram – KK Peta Road, Pulicherla Mandal and the police staff started vehicle checking. At about 4-00 PM, A1 and A2 were coming in

Bolero vehicle bearing No.TN-34 U-9430 and on seeing them A1 without stopping the vehicle tried to dash them and fled away. On that L.W.3

SI of Police chased the vehicle and stopped with the assistance of his staff and both of them got down and tried to assault the police party with sickles stating in Tamil as “Vetti Kollunguda police karengle”. On that L.W.3 SI of Police apprehended both the accused and recorded their confessional statements separately in the presence of mediators and both the accused confessed that A3 Saleem of Vellore sold the red sander logs to some persons at Bangalore and encashed the red sander logs. Both the accused have committed theft of red sander logs from

Seshachalam Forest Area with active abatement of A3 to A5 and on searching Bolero Vehicle, L.W.3 SI of Police found 04 Red sander logs weighing about 62 Kgs, 02 sickles, one Nokia Cell phone and Cash of

Rs.300/- and seized the above Bolero vehicle in the presence of mediators under the cover of arrest and seizure Mahazar dated 24.11.2014 at 4-00 PM. Then L.W.3 SI of Police brought both the accused and contraband to the Police Station at 7-00 PM and registered the arrest and seizure Mahazar as case in Cr.No.79/2014 under

Section 307, 353, 379, 120-B r/w 109 IPC and Sec.29 and 32 of A.P.

Forest Act, 1967 and r/w Rule 3 of A.P. Sandal Wood and Red Sanders 3

Wood Transit Rules, 1969 and Section 55 (2), 58 of Wild Life Protection

Act, 2002 and submitted FIRs to all the concerned officers and took up investigation and sent both the accused to the Court for remand. The case property i.e., 04 red sander logs and one Bolero Vehicle were handed over to Forest Range Officer, Piler for safe custody and other property was submitted to the Court vide CPR.No.45/2015.

It is submitted that identity of accused A3 Saleem, Vellore, Tamil

Nadu State, A4 M. Suresh, 2nd New Salem, Karoor, Tamil Nadu State and A5 Lakshman, Vellimalai, Kallukurchi, Vellipuram District, Tamil

Nadu State is not established since the date of offence. L.W.3 the SI of

Police made all possible efforts to establish the identity of the accused

A3 to A5, but no clues were forthcoming. The accused A1 and A2 might have given fictitious names of A3, A4 and A5 to mislead the police.

However, sincere efforts are being continued to trace out the above accused and soon after the arrest of A3, A4 and A5, supplementary charge sheet will be filed against them under Section 173 (8) Cr.P.C.

Hence the charge.

3. After filing of charge sheet before the learned Judicial

Magistrate of 1st Class, Pakala, it was taken on file for the offences

under Sections 307, 353, 379, 120-B r/w 109 IPC, Section 20 (1) ( c)

(ii) (iii) (iv) (vi) and (x) r/w Section 29 (2) (b) (4) (a) (i) of A.P. Forest Act, 1967 r/w Rule 3 of A.P. Sandal Wood and Red Sanders Wood Transit

Rules,1969, Section 55 (2) of Biological Diversity Act, 2002 against A-1 and A2 and registered as PRC.No. 45 of 2015.

4. After appearance of A1 and A2 before the learned Judicial

Magistrate of 1st Class, Pakala, copies of documents submitted by the

4 police were furnished to them and case was committed to Hon’ble

Sessions Court u/s 209 Cr.P.C and the said case was registered as

SC.No.54/2016 and made over to this court for trial according to law.

5. After appearance of A1 and A2 before this court they were asked whether they have got means to engage counsel and they informed the court that they got means to engage counsel. After hearing the learned Additional Public Prosecutor and learned counsel for A1 and A2 and on perusing the material available on record, charges u/Sections 307, 353, 379, 120-B r/w 109 IPC, Section 20 (1) (

c) (ii) (iii) (iv) (vi) and (x) r/w Section 29 (2) (b) (4) (a) (i) of A.P. Forest

Act, 1967 r/w Rule 3 of A.P. Sandal Wood and Red Sanders Wood

Transit Rules,1969, Section 55 (2) of Biological Diversity Act, 2002 against A-1 and A2 were framed, read over and explained to them in

Telugu and they pleaded not guilty and claimed to be tried. Then, the matter was posted for trial.

6. In order to prove the guilt of A1 and A2, prosecution examined four witnesses as P.Ws 1 to 4 and got marked Ex.P1 to Ex.P4 and

M.Os 1 to 4.

7. After closure of the prosecution evidence, accused were examined u/sec. 313 Cr.P.C with regard to incriminating material appeared against them in the evidence of prosecution witnesses and they denied the same and reported no defence evidence. Then the matter is posted for arguments.

8. Now the point for determination is:

Whether the prosecution has proved the guilt of A1 and A2 for the offences under Sections 307, 353, 379, 120-B r/w 109 IPC, Section 20 (1) ( c) (ii) (iii) (iv) (vi) and (x) r/w Section 29 (2) (b) (4) (a) (i) of A.P.

Forest Act, 1967 r/w Rule 3 of A.P. Sandal Wood and Red Sanders 5

Wood Transit Rules,1969, Section 55 (2) of Biological Diversity Act, 2002 against A-1 and A2 beyond all reasonable doubt?

9. Heard both sides.

POINT

10. The learned APP submitted that A1 and A2, with the active abetment of one Saleem, Suresh and Lakshman, criminally entered into Sheshchelam forest which is a prohibited area and cut the sandal wood trees by causing damage to forest produce and committed theft of red sander wood logs weighing about 62 K.G. and illegally transporting in Bolero vehicle without any valid license and when PW3 the S.I. of

Police, Kalluru P.S. with his staff tried to apprehend them in a bid to escape, they assaulted the police with sickles which is a deadly weapon and attempted to commit murder. She submitted that PW1 and PW2 the independent mediators supported the case of prosecution that while accused are illegally transporting red sander wood logs PW3 the S.I. of

Police seized the same in their presence and thereby prosecution is able to establish its case. She contended that accused committed grave offences and they have to be punished severely.

11. P.W.3 the SI of Police stated that on 24-11-2014 at about 3- 15 PM, he got credible information about illicit transportation of red sandal logs and he secured PW1 and PW2 the mediators and proceeded to Mangalampet bus stand along with his staff in private vehicle and from 4-00 pm they started vehicle checking at Bhakarapet and

Mangalampet road. At that time one white Bolero vehicle was coming from Bhakarapet side and when they tried to stop the vehicle, the same was not stopped then with the help of staff they chased the vehicle and stopped the vehicle and from the said vehicle two persons got down 6 and took two sickles and started shouting in Tamil language and pounced against them and when he asked his constable as to what they are shouting then he informed that they are shouting that they will kill them then with the help of his staff he caught hold of them. He stated that when he questioned them as to why they want to kill them, they did not give proper answer then on suspicion he checked the vehicle and found four red sandalwood logs. He stated that A1 stated he is working as driver and that one Suresh introduced him to A2, Saleem and Lakshman stating if they do red sandalwood business they will get huge amounts and he agreed for the same. Then Suresh sent A1 and

A2 to Seshachalam forest to get red sandalwood logs and accordingly they brought red sandalwood logs and sold the same. A1 further stated that Saleem and Lakshman asked A1 and A2 even to kill the police if the police obstruct and A2 also stated the same thing. PW3 further deposed that when they checked A1 and A2 on their person they found A1 in possession of Rs.300/- and A2 in possession of Nokia

Cell phone. Then he seized one sickle and Rs.300/- from A1 and one sickle and Nokio phone containing two SIM cards from A2. He also seized Bolero vehicle and four red sandal wood logs from the Bolero van and took measurements of the logs and got weighed the red sandal logs and then they brought A1 and A2 to police station along with properties seized and registered the case in Crime No.79 of 2014. He stated that red sandal wood and Bolera van were handed over to Forest department and Divisional Forest Officer, Chittoor issued proceedings for confiscation of the red sandal wood . He further deposed that at the time of interrogation confessional statements of A1 and A2 were recorded in the presence of mediators and he seized the properties 7 under the cover of confessional-arrest and seizure mahazar and obtained signatures of mediators in it along with A1 and A2 and on 25-11-2014 A1 and A2 were brought before the court for remand.

12. The learned counsel for accused contended that prosecution filed charge sheet alleging that, with the active abetment of one Suresh,

Saleem and Lakshman, A1 and A2 illegally entered into Seshachalam

Reserve Forest and cut and committed theft of red sandalwood trees and committed the offence under sections 120(B) r/w 109 and section 379 IPC and under section 55 (2) of Biological Diversity Act,2002 but prosecution did not adduce any evidence to show that accused entered into Seshachalam Reserve Forest and cut the trees and committed theft of red sandal wood trees and therefore section 120(B), 379 IPC and section 55(2) of Biological Diversity Act,2002 have no application to this instant case. He further contended that P.Ws 1 and 2 are not local inhabitants and were collected from Pulicherla which is away from scene of offence and though independent witnesses are available P.W.3 did not choose to take the independent mediators. He contended that as per the evidence of P.W.3 four red sander wood logs and two sickles were recovered from A1 and A2, whereas there is no whisper in the evidence of P.Ws 1 and 2 about sickles which creates any amount of doubt with regard to seizure and both the witnesses failed to identity A1 and A2 to show that M.Os 1 to 4 are seized from A1 and A2 and prosecution failed to establish its case.

13. Admittedly, as contended by counsel for accused the prosecution did not adduce any evidence to show that accused 1 and 2 conspired with Suresh, Saleem and Lakshman and illegally gained entrance into Seshachalam Reserve Forest and cut and committed theft 8 of red sandalwood trees. It is settled principle that incriminating statement made to a police officer not leading to discovery of fact is not admissible in evidence , therefore the confessional statement made

before PW3 that Suresh sent A1 and A2 to Seshachalam Forest to get

red sandal wood logs and accordingly they brought red sandal wood logs, cannot be accepted and prosecution failed to establish the offences punishable under section 120(B) r/w 109 and section 379 IPC and under section 55 (2) of Biological Diversity Act,2002 .

14. Coming to illegal transportation and possession of red sander wood logs, the prosecution apart from the evidence of PW3 examined Pws.1 and 2 who are independent mediators. P.W.1 stated that he is working as Sarpanch, Reddivaripalle Panchayat of Pulicherla

Mandal and that on 24-11-2014 at about 3-00 or 3-30 PM the SI of

Police and one constable and husband of Kalluru Sarpanch by name

Kharimulla (PW3) came to him while proceeding to Mangalampet and asked him to accompany them and then he accompanied them to

Mangalampet near Grameena Bank circle. He stated that after half an hour one Bolero vehicle of Tamilnadu was coming from Bhakarapet, then the SI of police tried to stop the vehicle but the same was not stopped then police chased the said vehicle and brought back the vehicle and two persons near to the Grameena bank and in the vehicle there are four pieces of red sander logs. He stated that police questioned the said two persons and the said two persons are Tamil speaking persons and one of the constables translated the words spoken by the two persons in Telugu and report was drafted and the said persons stated that they are bringing the sandal wood pieces from Thalakona area and one person stated that he is working as driver in Tamil nadu 9 and that at the request of one Suresh he brought the vehicle to

Chittoor. He further deposed that Suresh also sent one helper along with him and the said Suresh engaged him to bring sandal wood in the vehicle to Chittoor bye pass and in turn Suresh will receive the same and hand over to one Lakshman to shift the same to Salem. He stated that he signed in the mahazar prepared near Grameena bank and in their presence police seized four red sandal pieces and the said two persons who were found with red sandal pieces signed in the mahazar.

He stated that as the incident happened two years back he could not identity the said two persons found in the vehicle.

15. P.W.2 stated that on 24-11-2014 while he was present in

Kallur bus stand about 3-00 PM the SI of police called him stating that he received information about smuggling red sandal wood and then he accompanied them and that they took P.W.1 at Pulicehrla and proceeded to Mangalampet near Gramena Bank and while police were checking vehicles one vehicle coming from Bhakarapet without stopping, the vehicle proceeded towards KK Pet and police chased the said vehicle and after half an hour they caught the vehicle along with persons and brought them to Mangalampet near Grameena Bank. He stated that Police questioned the two persons and they stated in Tamil and the constable who is Tamil known person translated the versions stated by culprits and mahazar was prepared and police recovered four red sandal wood logs from the jeep of the culprits and police obtained their signatures in the mahazar. He stated that he cannot identify the said persons.

16. Pws. 1 and 2 who are independent mediators though supported the

case of prosecution that four red sander wood logs were recovered by

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PW3 in their presence while two persons were transporting the red sander

wood logs in Bolero van but they categorically stated that they cannot

identify the said two persons, therefore their evidence is no way helpful to

connect the accused with the alleged offence. Apart from this the

prosecution did not produce the alleged crime property, four red sander

wood logs and the Bolero van in which the crime property was being

transported. Of course it is the evidence of PW3 the I.O. that red sandal wood logs and Bolera van were handed over to Forest department and

Divisional Forest Officer, Chittoor issued Ex.P2 proceedings for confiscation of the red sandal wood logs and Pw.4 SI of police stated that on 7-2-2015 he sent requisition to Divisional Forest Officer,

Chittoor East wild Life Division, Chittoor for issuing prosecution order against accused and on the same day he received the orders and on oral instruction of superior officers on 09-7-2015 he filed preliminary charge sheet against A1 and A2, but prosecution did not choose to examine the

Divisional Forest Officer, Chittoor who issued the confiscation orders nor the Forest Ranger to whom the crime property was handed over to prove that the very property seized from A1 and A2 was handed over to the Forest department. Non production of crime property and non examination of Forest Officials is fatal to the case of prosecution. No doubt Ex.P2 proceedings show confiscation orders were passed in respect of red sander wood logs in this crime but in the absence of substantive evidence no weight can be attached to Ex.P2 proceedings, since unless the Forest Range Officer or Divisional Forest Officer are examined it cannot be said that the very sander wood logs seized were handed over to the Forest department and confiscated. Moreover unless 11 the accused is given an opportunity of cross examination, Ex P2 proceedings cannot be accepted. Therefore, basing on the sole testimony of PW3 the I.O. it cannot be said that the prosecution is able to establish that accused 1 and 2 are transporting the red sander wood logs , particularly when the alleged mediators failed to identify the accused and the prosecution failed to produce the crime property.

17. As far as the offence under section 353 and 307 IPC is concerned except the sole testimony of PW3 that they chased the

Bolero vehicle and stopped the vehicle and from the said vehicle A1 and

A2 got down and took two sickles and started shouting in Tamil language that they will kill them and pounced against them and that with the help of his staff he caught hold of them, there is no other corroboration. Pws. 1 and 2 did not speak about the alleged threat and even did not speak about possession of sickles by A1 and A2 and seizure of the sickles. Further it is pertinent to note that PW3 stated that A1 and A2 shouted in Tamil language that they will kill them and the same was translated by one of his constables but the prosecution did not choose to examine the said constable. More over it is not the case of prosecution that any injuries were received by police personnel at the time of apprehension and nothing is made out to show that accused are having intention to kill the police. Therefore, it cannot be said that the prosecution is able to establish its case beyond reasonable doubt. Hence I hold accused 1 and 2 are entitled for benefit of doubt for the offences punishable under Sections 307, 353, 379, 120-B r/w 109 IPC, Section 20 (1) ( c) (ii) (iii) (iv) (vi) and (x) r/w Section 29 (2) (b) (4) (a) (i) of A.P. Forest Act, 1967 r/w Rule 3 of A.P. Sandal Wood and

Red Sanders Wood Transit Rules,1969, Section 55 (2) of Biological 12

Diversity Act, 2002.

18. In the result, A1 and A2 are found not guilty for the offences punishable under Sections 307, 353, 379, 120-B r/w 109 IPC, Section 20 (1) ( c) (ii) (iii) (iv) (vi) and (x) r/w Section 29 (2) (b) (4) (a) (i) of A.P.

Forest Act, 1967 r/w Rule 3 of A.P. Sandal Wood and Red Sanders

Wood Transit Rules,1969, Section 55 (2) of Biological Diversity Act, 2002 and accordingly they are acquitted under Section 235 (1) Cr.P.C., for the said offences. The bail bonds of A1 and A2 shall be in force for a period of six months from the date of judgment. M.Os 1 and 2 shall be destroyed after expiry of appeal time, M.O.3 Nokia Cell Phone shall be returned to A2 and M.O.4 cash of Rs.300/- shall be returned to A1 after expiry of appeal time.

Typed to my dictation to the Personal Assistant, corrected and

pronounced by me in the open court on this the 16th day of April, 2018.

ADDL. ASST. SESSIONS JUDGE

CHITTOOR.

Appendix of Evidence

Witnesses Examined:

For Prosecution:- For Defence

PW1: S. Mohan Babu. None PW2: Kharimullah PW3: B.V. Subba Reddy. PW4: B. Krishnaiah.

Documents marked Prosecution:-

Ex.P.1 :- Portion of confession – Seizure Mahazar relating to seizure of

M.Os 1 to 4.

Ex.P.2 :- Confiscation proceedings issued by Divisional Forest Officer,

Chittoor in respect of four red sander logs.

Ex.P-3 :- Rough sketch.

Ex.P-4 :- First Information Report.

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Defence:- Nil.

//Material objects//

M.Os.1 and 2 : Two Sickles

M.O.3 Nokia Cell Phone.

M.O.4 Cash of Rs.300/-

A.A.S.J.CTR.

FAIR JUDGMENT

SC.NO.54 OF 2016

DT.16-04-2018.

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IN THE COURT OF THE ADDL. ASSISTANT SESSIONS JUDGE CHITTOOR.

S.C. No. 54 of 2016

PRC.No.09 of 2015 J.M.F.C. Pakala, Chittoor District)

Date of offence : 24-11-2014 Date of complaint : 24-11-2014 Date of taken on file : 09-02-2016 Date of apprehension of accused : 24-11-2014 Date of commencement of trial : 14-12-2016 Date of close of trial : 09-04-2018 Date of sentence or order : 16-04-2018

Complainant : Sub Inspector of Police, Kallur PS Crime No.79/2014 of Kallur PS

Name of the accused Father/ Age Husband Name

Village and Mandal Religion Calling

1.Muragaiah Muttukumar, aged 27 years, son of Muragaiah, D.No.16, Bharathi Nagar, Sriperambadur, Kanjeepuram District, Tamilnadu State.

2.Kuppan Annadorai, aged 25 years, son of Kuppan, D.No.9 Kalakatheru Melkandrigal village, Nedumadhuru Post, Sankarakuppam Taluk, Villupuram district, Tamilnadu.

A1 and A2 are Hindus and doing coolie work.

Offences charged:- under Sections 307, 353, 379, 120-B r/w 109 IPC, Section 20 (1) ( c)

(ii) (iii) (iv) (vi) and (x) r/w Section 29 (2) (b) (4) (a) (i) of A.P. Forest Act, 1967 r/w Rule 3 of A.P. Sandal Wood and Red Sanders Wood Transit Rules,1969, Section 55 (2) of Biological Diversity Act, 2002

Plea of the accused : A1 to A3 pleaded not guilty.

Finding of the Court : A1 to A3 found not guilty.

Sentence of Order: In the result, A1 and A2 are found not guilty for the offences punishable under Sections 307, 353, 379, 120-B r/w 109 IPC, Section 20 (1) ( c) (ii) (iii) (iv) (vi) and (x) r/w Section 29 (2) (b) (4) (a) (i) of A.P. Forest Act, 1967 r/w Rule 3 of A.P. Sandal Wood and Red Sanders Wood Transit Rules,1969, Section 55 (2) of Biological Diversity Act, 2002 and accordingly they are acquitted under Section 235 (1) Cr.P.C., for the said offences. The bail bonds of A1 and A2 shall be in force for a period of six months from the date of judgment. M.Os 1 and 2 shall be destroyed after expiry of appeal time, M.O.3 Nokia Cell Phone shall be returned to A2 and M.O.4 cash of Rs.300/- shall be returned to A1 after expiry of appeal time.

ADDL. ASSISTANT SESSIONS JUDGE,

CHITTOOR.

In the Court of the Additional Senior Civil Judge: Chittoor.

Present: Kum. K.Vanisree. Addl. Senior Civil Judge,

Monday, the 16th day of April, 2018

O.S.No. 210 of 2016

Between:

V. Nagaraja. … Plaintiff.

And:

1.B. Balaraju.

2.B. Mogiliswar. …Defendants

This suit is coming on 13-04-2018 for hearing before me in the presence of Sri A. Jyothiram, Advocate for the plaintiff and though Sri C.

Subramanyam, Advocate for the defendants and having stood over for consideration till this day the Court delivered the following:-

JU D G M E N T

The plaintiff filed this suit against the defendants for recovery of Rs.3,69,863/- with subsequent interest basing on promissory note dated 20-10-2014 and for costs.

2. Brief averments of the plaint are that defendants 1 and 2 jointly borrowed a sum of Rs.2,50,000/- from the plaintiff on 20.10.2014 to meet their family necessities and for their personal and business needs and executed promissory note in favour of plaintiff on the same day agreeing to repay the same with interest at 24% p.a. Subsequently inspite of several oral request the defendants have not chosen to repay either the principal or interest due under the promissory note, then plaintiff issued legal notice dated 08-09- 2016 to both the defendants calling upon them to repay the entire debt and the defendants received the legal notice but did not comply the same. The defendants are doing business apart from cultivation 2 and they are not entitled for any benefits under Agricultural Debt

Relief Act or any other Debt Relief Act. Hence, the suit.

3. The second defendant filed written statement denying the allegations in the plaint and further submitted that originally the plaintiff was running unregistered chit business and in the said chit business he joined as one of the members of the chit for an amount of Rs.1,00,000/- and became successful bidder in the month of

March, 2014. The plaintiff insisted the defendant to sign in the unfilled pronote in respect of further instalments of the chit amount, due to which himself and 1st defendant jointly executed pronote in the month of March, 2014 towards collateral security. He submitted that one Sri Balaji and Raju of Sankranthipalle Village, Bharath of

K.G. Sathram Village and Rasheed of Bangarupalyam mandal also joined in the chit. He submitted that after completing the chit transaction he requested the plaintiff to return the pronote executed by them but plaintiff is postponing the same on some pretext or other. He submitted that recently some disputes arose between him and the plaintiff and plaintiff filed the suit in collusion with attestors and scribe. He further submitted that the plaintiff has no capacity to lend such huge amount. He submitted that he never borrowed any amount from the plaintiff at any point of time and did not execute any pronote for consideration and the suit pronote was brought up and concocted document for the purpose of filing the suit and to gain wrongfully. He submitted that he has no necessity to borrow any amount from the plaintiff and there is no cause to file the suit and the suit is liable to be dismissed.

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First defendant filed memo adopting the written statement of the second defendant.

4. Basing on the above pleadings, the following issues were framed for trial:- (1) Whether the suit promissory note is true, valid and binding on the defendants?

(2) Whether the suit pronote is not supported by consideration?

(3) Whether the plaintiff is entitled to recover the suit claim?

(3) To what relief?

5. On behalf of plaintiff Pw1 and Pw2 are examined and Exs.A1 to A3 are marked. On behalf of the defendants, D.Ws 1 to 3 are examined and no documents are marked.

6. Heard arguments.

Issues 1 and 2:-

7. The fundamental principal is that when the suit transaction is denied the burden is necessarily on the plaintiff to prove the same and once the plaintiff is able to establish his case the burden shifts on the defendants to disprove the transaction. In this instant case plaintiff is examined as Pw1 and he deposed that defendants 1 and 2 borrowed Rs.2,50,000/- from him on 20-10-2014 to meet their family necessities and their personal and business needs and for consideration received defendants jointly executed Ex.A1 promissory note in his favour agreeing to repay the same together with interest at 24% p.a. He stated that he made repeated demands to repay the promissory note debt but the defendants did not pay the amount and that he issued Ex.A-2 legal notice to the defendants and the same was acknowledged by defendants 1 and 2 under Ex.A.3 postal acknowledgments, but they failed to comply the same. He further 4 stated that the defendants brought R. Bhaskar, D. Balaiah and B.

Sardar Saheb and in their presence the defendants received consideration and executed Ex.A1 promissory note and one R.

Bhaskar and Balaiah signed as attestors and Sardar Saheb scribed the pronote. Apart from his evidence, plaintiff examined Pw2 the scribe of Ex.A1 promissory note and he supported the version of Pw1 that defendants jointly borrowed Rs.2,50,000/- from plaintiff on 20-10-2014 to meet their family necessities and for their personal and business needs and jointly executed promissory note in favour of plaintiff in the presence of himself, the attestors R. Bhaskar and

Balaiah brought by defendants and that he scribed the promissory note.

The evidence of P.Ws 1 and 2 clearly show that defendants 1 and 2 received consideration of Rs.2,50,000/- and executed Ex.A1 promissory note jointly in favour of plaintiff. On the other hand defendants are not denying the signatures on Ex.A1 pronote as executants, but they are denying the suit transaction and it is their contention that pronote was given with regard to chit transaction.

The plaintiff by examining P.W.2 the scribe of Ex.A1 promissory note who was said to be present at the time of execution of Ex.A1 pronote, discharged his burden that defendants received consideration and executed Ex.A1 promissory note. Now the burden is on the defendants to prove their contention.

8. D.Ws 1 and 2 stated that they have no necessity to borrow any amount from plaintiff and that they never borrowed any amount from plaintiff and executed any pronote in favour of plaintiff for consideration. They further stated that Ex.A1 promissory note was 5 created in collusion with scribe and attestors to gain wrongfully.

They stated that plaintiff was running unregistered chits and second defendant joined as one of the members of the chit for Rs.1,00,000/- and became successful bidder in the month of March, 2014 and at that time plaintiff insisted second defendant to sign in unfilled promissory note in respect of further instalments of chit amount and that defendants 1 and 2 jointly executed the pronote in the month of

March, 2014 as collateral security. They further stated that after completing chit transaction second defendant requested the plaintiff to return the promissory note but the plaintiff postponing to return the same on some pretext and recently disputes arose between second defendant and plaintiff and he filed the suit in collusion with attestors and scribe.

The defendants mere stating that plaintiff used to run chits and second defendant was one of the members of the chit run by plaintiff for an amount of Rs.1,00,000/- and became successful bidder in the month of March, 2014 and in that connection towards collateral security they signed in unfilled pronote at the instance of plaintiff and handed over to plaintiff, they did not file any scrap of paper to show that plaintiff is running chits and in that connection

Ex.A1 pronote was handed over to plaintiff. Of course D.Ws 1 and 2 stated that along with D2, one Balaji, Raju, Bharath and Rasheed also participated in the said chit but they did not choose to examine the said persons to substantiate their contention. Further it is the evidence of D.Ws 1 and 2 that recently some disputes arose between

D.W.2 and plaintiff and that plaintiff filed the suit in collusion with the attestors and scribe, but there is no whisper in their evidence 6 with regard to the alleged disputes. Further nothing is elicited in the evidence of P.Ws 1 and 2 to show that P.W.1 is running chit business and he obtained blank signed pronote in connection with chit transaction and about any disputes between them as alleged by

D.Ws 1 and 2. Therefore, basing on the omini bus statements of

D.Ws 1 and 2, it cannot be said that plaintiff created Ex.A1 pronote due to disputes basing on unfilled pronote alleged to be given to him in alleged chit transaction. The defendants examined D.W.3 who is their brother and he supported the version of D.Ws 1 and 2 that second defendant was member of chit run by plaintiff and in connection with chit transaction defendants handed over unfilled pronote at the instance of plaintiff and plaintiff without returning the same filed the suit due to recent disputes, but in the cross examination he stated that he do not know the transactions between

D1 and D2 with plaintiff prior to filing this suit. Hence, his evidence is no way helpful to the case of defendants. Further no explanation is offered by defendants for not giving reply to Ex.A2 notice issued by plaintiff stating the facts of the plaint and demanding to repay the amount. If really the case of the defendants is true, they might have issued reply. On the other hand the evidence P.Ws 1 and 2 is consistent that the defendant received consideration of

Rs.2,50,000/- from the plaintiff and executed Ex.A1 pronote. Hence,

I hold that the plaintiff is able to establish his case. Accordingly, the above issues are answered.

9. Issue No.3:- In view of the findings in issue 1, I hold plaintiff is entitled to recover suit amount as prayed for. Accordingly, this issue is answered.

7

10. Issued No.4- In the result, the suit is decreed with costs for

Rs.3,69,863/- with subsequent interest at 12% p.a., on a sum of

Rs.2,50,000/- from the date of suit till the date of decree and thereafter at 6% p.a., till the date of realization.

Typed to my dictation by the Personal Assistant, corrected and

pronounced by me in the open court on this, the 16th day of April, 2018.

Addl. Senior Civil Judge, Chittoor.

Appendix of evidence – witnesses examined

For plaintiff :-

PW1. V. Nagaraja. PW2. B. Sardar Saheb.

For defendants:-

DW1 B. Balaraju DW2 B. Mogiliswar. DW3 B. Rajendra.

Exhibits marked on behalf of the plaintiff:-

Ex.A1 : Promissory note dt.20-10-2014. Ex.A2 : Office copy of legal dated 08-09-2016. Ex.A3 : Postal acknowledgment.

Exhibits marked on behalf of the defendants:- Nil-

Addl. Sr.C.J.CTR

Fair Judgment

OS. No.210 of 2016

Dt.16-04-2018

In the Court of the Additional Senior Civil Judge: Chittoor.

Present: Kum. K.Vanisree. Addl. Senior Civil Judge,

Wednesday, the 18th day of April, 2018

O.S.No. 256 of 2017

Between:

K.Papi Reddy. … Plaintiff. And:

1.A. Chinnabba Reddy.

2.A. Lakshmi. …Defendants

This suit coming for hearing before me today i.e. on 18-04-2018 in the presence of Sri C.K. Raghu, Advocate for the plaintiff and the defendants remained exparte, and after hearing this day the Court delivered the following:-

JU D G M E N T

The plaintiff filed this suit against the defendant for recovery of

Rs.9,91,200/- basing on promissory note dt.10-05-2007, to cancel the registered Gift deed dated 25-05-2013 executed by 1st defendant in favour of 2nd defendant by duly declaring as sham, nominal document and also making provision for realization of the suit amount by selling the suit property and for costs.

2. Brief averments of the plaint are that on 10-05-2007 1st defendant being the manager of the joint family borrowed a sum of

Rs.3,00,000/- from the plaintiff for his joint family necessities and business purpose and in consideration thereof, 1st defendant executed a promissory note in his favour agreeing to repay the same together with interest at 24% pa. Thereafter inspite of repeated demands for repayment of promissory note amount, the defendant paid an amount of

Rs.10,000/- on 08-04-2010, Rs.15,000/- on 04-04-2013, Rs.18,000/- on 02-02-2015 and Rs.23,000/- on 30-01-2016 towards interest and made part payment endorsements and thereafter 1st defendant did not pay either principal amount or interest accrued thereon. He further submitted that inspite of repeated demands, the defendant did not 2 choose to pay either interest or principal, 1st defendant promising to pay the same within short time postponing the same, hence the plaintiff issued a legal notice to the 1st defendant on13-09-2017 and the 1st defendant received the said notice and has not responded for repayment of the debt. Plaintiff submitted that 1st defendant is not an agriculturist and he is doing transport business as such he is not entitled for any relief under Debt Relief Laws. Plaintiff further submitted that the plaint schedule property exclusively belongs to 1st defendant and he is in possession and enjoyment of the same by rising various crops. The 2nd defendant is the wife of 1st defendant and they are relatives of plaintiff and the daughter of plaintiff given in marriage to the son of defendants.

The plaintiff keeps confidence reposed on them in view of thick relationship, such that the plaintiff lent amount to the 1st defendant to meet his necessities and business purpose. He submitted that after issuance of legal notice, the plaintiff recently came to know that 1st defendant executed a sham, nominal and collusive document in favour of 2nd defendant by creating a gift deed dated 25-05-2014. The defendants 1 and 2 colluded together and brought into existence a false gift settlement deed dated 25-05-2013 with a view to deceive the plaintiff and also to delay and defraud the plaintiff in realization of the suit amount and the gift deed is not a genuine document. The existence of document

dated 25-05-2013 cause prejudice to the legal rights of the plaintiff in

realization of the suit amount and the attitude of the defendants in creation of the false, spurious gift deed dated 25-05-2013 causes infringement right of the plaintiff in realization of the suit amount and hence the plaintiff forced to seek additional relief of cancellation of the registered gift deed dated 25-05-2013 by declaring the same as a false, spurious document aimed to defeat the rights of the plaintiff in realization of the suit amount and make provision for realization of the suit amount by selling the suit schedule property. Hence, the suit.

3

3. The defendants remained exparte.

4. Pws.1 to 3 are examined and Exs.A1 to A8 are marked.

5. Heard the counsel for the plaintiff.

6. Now the points for consideration is;

1. Whether the plaintiff is entitled to recover the suit amount as prayed for?

2. Whether the plaintiff is entitled to cancel the registered Gift deed

dated 25-05-2013 executed by 1st defendant in favour of 2nd defendant

by duly declaring as sham, nominal document and also making provision for realization of the suit amount by selling the suit property

7. Point No.1: - The plaintiff is examined as Pw1 and he reiterated the contents of the plaint and got marked Ex.A1 promissory note dated 10-05-2007, Ex.A2 payment endorsement dated 8-4-2010, Ex.A3 payment endorsement dated 4-4-2013, Ex.A4 payment endorsement

dated 2-2-2015, Ex.A5 payment endorsement dated 30-01-2016, Ex.A6

office copy of legal notice with postal receipt, Ex.A7 postal acknowledgment and Ex.A8 is the CC of gift deed dated 25-05-2013 executed by D1 in favour of D2. Plaintiff also examined one of the attestors of Ex.A1 promissory note as P.W.2, he too supported the plaintiff’s case.

8. From the unchallenged evidence of PWs.1 and 2 coupled with

Exs.A1 to A8 documents the plaintiff established his case for recovery of the amount. Therefore, the plaintiff is entitled to recover the suit amount. Accordingly this point is answered.

9. POINT No.2:- The contention of the plaintiff is that after issuance of legal notice, he recently came to know that 1st defendant executed a sham, nominal and collusive document in favour of 2nd defendant by creating gift deed dated 25-05-2013. He submitted that the false gift settlement deed dated 25-05-2013 was brought into existence with a view to deceive the plaintiff and to delay and defraud him in 4 realization of the suit amount. He submitted that when the debt is due by the 1st defendant and subsisting, execution of gift deed in favour of 2nd defendant is a malafide act and further submitted that suit schedule property is only property held by 1st defendant and as such there are no bonafides on the part of the defendants in bringing into existence a false and spurious gift deed to defraud the legitimate creditors. He submitted that execution of gift deed causes prejudice to his legal right in realization of the suit amount and therefore it is just and necessary to cancel the gift deed dated 25-05-2013 executed by 1st defendant in favour of 2nd defendant in respect of schedule property by making provision for realization of the suit by selling the suit schedule property.

P.Ws 1 and 2 stated the same thing. Apart from oral evidence of P.Ws 1 to 3, plaintiff filed Ex.A-8 CC of settlement deed dated 25-05-2013 executed by 1st defendant in favour of 2nd defendant in respect of plaint schedule property.

10. Admittedly first defendant executed registered gift deed in favour of 2nd defendant under Ex.A8 CC of gift deed dated 25-05-2013 subsequent to Ex.A1 pronote transaction, but it is fact that by the date of

Ex.A8 gift deed no decree was passed in favour of plaintiff and even plaintiff did not file the suit and there is no attachment of property before judgment or charge created against plaint schedule property. Further it is not the case of plaintiff that D1 gave undertaking not to alienate the plaint schedule property. By the date of filing the suit plaintiff is having only cause of action for recovery of amount and there is no legal right over suit property of D1 to claim the relief of declaration that gift of plaint schedule property by D1 is sham and nominal document and the document is executed only to defeat his rights, therefore, the gift transaction under Ex.A8 cannot be said to be not bonafide. Accordingly, this point is answered against the plaintiff.

5

11. In the result, the suit is decreed with costs for Rs.9,91,200/- with subsequent interest at 12% p.a on a sum of Rs.3,00,000/- from the date of suit till the date of decree and thereafter at 6% p.a till realization against 1st defendant.

The rest of the suit claim is dismissed.

Typed to my dictation to the Personal Assistant, corrected and

pronounced by me in the open court on this, the 18th day of April, 2018.

Addl. Senior Civil Judge, Chittoor.

Appendix of evidence – witnesses examined For plaintiff :-

PW1. K. Papi Reddy. PW2. V. Bhakar Reddy. PW3. A. Jagan Babu $@ Jaganadham.

For defendants:- None-

Exhibits marked on behalf of the plaintiff:-

Ex.A1 promissory note dt.10-05-2007, Ex.A2 payment endorsement dated 8-4-2010, Ex.A3 payment endorsement dated 4-4-2013, Ex.A4 payment endorsement dated 2-2-2015, Ex.A5 payment endorsement dated 30-01-2016, Ex.A6 office copy of legal notice with postal receipt, Ex.A7 postal acknowledgment Ex.A8 is the CC of gift deed dated 25-05-2013 executed by D1 in favour of D2 Exhibits marked on behalf of the defendant:- Nil-

Addl. Sr.C.J.CTR

Fair Judgment

OS.No. 256 of 2017,

Dt.18-04-2018.

IN THE COURT OF THE ADDL. SENIOR CIVIL JUDGE : CHITTOOR

PRESENT :Smt A.Naga Sailaja, Secretary, District Legal Services Authority, Chittoor FAC Addl. Senior Civil Judge, Chittoor.

Monday, the 23rd day of April, 2018

E.P.No.24/2017

O.S.No.590/2014

Between:

D.Rajasekhar Reddy … Decree holder And:

1.S.Shakeera

2.Minor Vahida

3.Minor Rasheed

4.S.Jabbar Saheb

5.S.Jilekabi … Judgment debtors

This petition is filed Under Order 21 Rule 64 and 66 CPC to order sale of the EP schedule property which was already attached before judgment in IA.No.980/2014 in OS.590/2014 dt.16-11-2014 for realization of the decretal amount of Rs.3,44,120/-.

This petition is coming before me on 23-04-2018 upon perusing the petition, counter and other relevant papers in the presence of Sri

P.Dayasekhar, Advocate for Decree holder and Sri E.Suguna Sekhar

Reddy, Advocate for Judgment debtor and this court made the following:-

O R D E R

Both parties present. F.S. Memo filed by the DHr and the same is recorded. Attachment effected against the schedule property on 16-11- 2014 which was made absolute on 27-6-2016 is hereby raised.

Accordingly, EP is terminated.

Pronounced by me in open court this the 23rd day of April, 2018.

Secretary, DLSA, Chittoor

FAC ADDL. SENIOR CIVIL JUDGE

CHITTOOR

APPENDIX OF EVIDENCE

NIL

FAC ASCJ, CTR.

IN THE COURT OF THE ADDL. SENIOR CIVIL JUDGE : CHITTOOR

PRESENT :Kum. K.Vanisree Addl. Senior Civil Judge, Chittoor.

Monday, the 16th day of April, 2018

E.P.No.01/2018

O.S.No.620/2013

Between: B.Chinnabba … Decree holder And:

V.Siddaiah … Judgment debtor

This petition is filed Under Order 21 Rule 37 CPC to order arrest of the JDr and send him in civil prison for realization of EP amount.

This petition is coming before me on 16-04-2018 upon perusing the petition, counter and other relevant papers in the presence of

Sri.A.Muralimohan, Advocate for Decree holder and Judgment debtor is having remained exparte and this court made the following:-

O R D E R

Counsel for DHr filed memo not pressed the EP as matter is compromised and to dismiss the EP. Memo recorded. EP is dismissed as not pressed.

Pronounced by me in open court this the 16th day of April, 2018.

S/d Kum.K.Vanisree

ADDL. SENIOR CIVIL JUDGE

CHITTOOR

APPENDIX OF EVIDENCE

NIL S/d Kum K.V

ASCJ, CTR.