M.Anuradha

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IX Addl. District & Sessions Court, Kovvur.

IN THE COURT OF THE IX ADDITIONAL DISTRICT & SESSIONS JUDGE::

WEST GODAVARI, KOVVUR.

Present: Smt.M.Anuradha,

IX Additional District & Sessions Judge, Kovvur.

Tuesday, this the 29th day of April, 2025

CRL.APPEAL NO.111/2019

From what Court the appeal is : Judicial Magistrate of I Class, preferred Jangareddigudem.

No. of the case in the Lower : C.C.No.1282/2017 Court

No. of the Criminal Appeal : Criminal Appeal No.111/2019

Name and Description of the : Jayavarapu Surya Pavan, S/o. Kameswara Appellant Rao, Hindu, Male, Age 33 years,

Indiranagar Colony, Jangareddigudem

Village and Mandal

Names and description of the 1. Challari Durga Rao, S/o. Venkanna, Respondents Hindu, Male, Aged 48 years,

Jangareddigudem Village and Mandal.

2. State, Rep. By Addl. Public

Prosecutor, West Godavari District,

Eluru, (Proforma Party) 2

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IX Addl. District & Sessions Court, Kovvur.

Conviction and Sentence passed Dt.29-01-2019: The trial court convicted by the trial court and date and sentenced the accused under Sec.255(2) Cr.P.C and sentenced the accused to suffer simple imprisonment for a period of six months and also sentenced to pay fine of Rs.10,000/- and in default to pay fine amount and in default of payment of fine amount, the accused shall suffer Simple Imprisonment for a period of Four months for the offence U/sec.138 of Negotiable Instrument Act.

Whether reversed/ Confirmed/: Modified, if

Confirmed.

modified, the Modification.

Date of presentation 26-02-2019

Date of filing 26-02-2019

Date of notice issued by the 01-03-2019 Court to appear

Date of Bail bond issued ---

On which date the Appellant 27-12-2019 ordered to appear

Date of hearing 17-04-2025

Date of Judgment 29-04-2025

This appeal came up for hearing before me in the presence of Sri V.Rajeswari, learned advocate for legal aid counsel for the appellant; Sri 3

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P.Murali Krishna, learned advocate for 1st respondent; Sri K.Gopala Krishna, learned Additional Public Prosecutor for 2nd respondent and the matter having stood over till this day for consideration, this Court delivered the following:

:: J U D G M E N T::

The accused in C.C.No.1282/2017 on the file of Judicial Magistrate of I

Class, Jangareddigudem (in short „trial court‟) preferred this appeal challenging the impugned calendar and judgment, dated 29-01-2019, conviction and sentence passed there under for the offence punishable under

Section 138 of Negotiable Instruments Act (in short „N.I. Act‟), sentencing him to undergo Simple Imprisonment for Six(6) months and sentenced to pay a fine of Rs.10,000/- (Rupees six thousand only) and in default payment of fine amount directed to suffer Simple Imprisonment for Four Months. The appellant is the accused and the 1st respondent is the complainant before the trial court and they will be hereinafter referred to as accused and complainant for convenience.

2. The Complaint averments, in short, are as follows: The accused borrowed a sum of Rs.1,20,000/- ( Rupees One lakh and twenty thousand only) from the complainant on 10-05-2016 for the purpose of his business and executed promissory note in favour of complainant and promised to repay the said amount either to the complainant or his order on demand together with interest at 24% p.a., Subsequently, on repeated demands made by the complainant, on 05.06.2017 the accused issued a cheque bearing No.000109 for Rs.1,00,000/- in favour of the complainant drawn on Central Bank of India,

Jangareddigudem Branch towards part satisfaction. The complainant presented the said cheque on 05-06-2017 itself before Syndicate Bank

Jangareddigudem Branch for collection and the same was dishonoured on the 4

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ground of “Funds insufficient”. The Bank authorities returned the same vide cheque return memo dt.12-06-2017. The complainant received the said memo and cheque on 12.06.2017. The complainant got issued a legal notice dated 08-07-2017 to the accused. The accused received the said notice and kept quiet. The Complainant pleads that the accused neither discharged the debt nor gave any reply and the accused is liable for punishment under the offence

Under Section 138 of the Negotiable Instrument Act, of 1881.Hence, the complaint.

3. The trial court took the case on file for the offence punishable under

Section 138 of N.I. Act, secured the presence of the accused by issuing summons, complied with Section 207 of the Code of Criminal Procedure (in short „Cr.P.C.‟). The accused was examined under section 251 Criminal

Procedure Code. The substance of the accusation levelled against him under section 138 of the Negotiable Instruments Act, 1881 was read over and explained to him in Telugu to which the accused pleaded not guilty and claimed to be tried.

4. During trial the complainant got himself examined as P.W.1 and got examined the 1stattestor of the promissory note as P.W.2. Complainant also got marked Ex.P-1 to Ex.P-5.

5. After closure of the complainant side evidence, the accused was examined under section 313 Criminal Procedure Code. The substance of incriminating evidence deposed against him was read over and explained to the accused in Telugu, for which he denied the incriminating material made against him. Further, accused did not choose to adduce any defence evidence on his side.

6. Upon hearing the arguments of both the counsel, the trial court found the accused guilty of the offence punishable under Section 138 of N.I Act and 5

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convicted and sentenced him to undergo Simple Imprisonment for Six(6) months and sentenced to pay a fine of Rs.10,000/- (Rupees Ten thousand only) and in default to pay fine amount to suffer Simple Imprisonment for Four

Months.

7. Aggrieved by the impugned calendar and judgment, conviction, and sentence passed there under, the accused preferred this appeal on various grounds running into 2 pages. The gist of the grounds of appeal is nothing

but reiteration of the defence set up before the trial court and it reads as

follows:

1. that the appellant is the accused in the above numbered matter, that the CC No.1282/2017 is not maintainable by law and facts, that the judgment itself is contrary to the provisions of N.I.Act, that the complainant failed to issue the mandatory legal notice, said fact not appreciated by trial court,

2. that the complainant pleads in his pleadings; he gave a notice to accused on 08-07-2017, that the complainant admitted in his examination he did not issue notice to accused on 08-07-2017 and not marked any postal receipt by that date and the said fact was not appreciated by trial court.

3. that the complainant pleads in his pleadings promissory note scribed by one M.Nagarjuna Rao is the scribe, that the document obviously appears holographic promissory note with wrong address i.e., father name and residential address, that the trial court failed to consider the above fact, that the Complainant failed to prove promissory note as well as due course the issuance of cheque and totally the trial failed to appreciate the fact and law.

Therefore, the appellant prays to set aside the conviction in

C.C.1282/2017 Dt.29-01-2019 on the file of Judicial Magistrate of I Class.

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Jangareddigudem by considering the grounds of appeal in the interest of justice.

8. On receipt of the notice, the respondent appeared through his counsel and during arguments mainly contended that the Trial Court considered the material properly and rightly convicted the Accused/Appellant, which needs no interference by this Court. He further contended that the entire evidence available on record established that the cheque was issued to discharge the legally enforceable debt due under the promissory note, dated 10-05-2016 and failed to discharge the debt due covered by the cheque despite notice, thereby committed the offence punishable under Section 138 of N.I. Act and argued totally in support of the findings of the trial court and prayed for dismissal of the appeal, confirming the impugned calendar and judgment, conviction and sentence passed there under.

9. Inspite of granting more than sufficient adjournments, appellant/accused neither appeared nor represented through her counsel on record to advance arguments. Hence, Kum.V.Rajeswari, Legal Aid Counsel is appointed to submit arguments on behalf of the accused in view of the judgments of the

Hon‟ble Supreme Court in Bani Singh Vs. State of Uttar Pradesh reported

in (1996) SCC 4 Page 720 and G.Rajmalliah Vs. State of Andhra Pradesh reported in (1998) SCC 5 Page 123.

10. Heard arguments on both sides. Considering rival contentions and perusing the material available on record including the impugned calendar and judgment of the trial court.

11. Now the points for determination are:

1. Whether the accused issued Ex.P.2/cheque, dt.05.06.2017 for

Rs.1,00,000/- ( Rupees one lakh only) to the complainant in discharge of

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part payment of legally enforceable debt due under Ex.P.1/Pronote

dt.10.05.2016?

2.Whether the complainant proved the guilt of accused for the offence

punishable under Sec.138 of Negotiable Instrument Act?

3.Whether the impugned judgment of the trial court suffers from errors

in facts or law?

12. Points No.1 and 2 :

The pleadings of the complainant and the facts leading to the present stage of this first appeal are already stated supra in detail. Hence, the same is not reiterated. The Court of First Appeal is obligated to reappraise the entire evidence, notwithstanding the findings recorded by the trial court. Therefore, this court would like to reappraise the entire material on record to come to an independent conclusion.

13. To prove his case the complainant himself examined as P.W.1, got marked Exs.P-1 to P-5 and he almost reiterated the averments of the complaint in his chief examination affidavit. The complainant also examined one Rokkam Raju, the 1stattester of Ex.P1 promissory note as PW.2 in support of his contentions in this case. P.W.2 testified that the accused borrowed an amount of Rs.1,20,000/- ( Rupees One lakh and twenty thousand only) from P.W.1 on 10-05-2016 agreeing to repay the same with interest at 24% p.a., and the accused executed Ex.P.1/ Promissory note on the same day on which he signed as 1stattestor and M.Nagarjuna Rao scribed the same.

14. To prove the guilt of the accused for the offence punishable under section 138 of the Negotiable Instrument Act the complainant needs to prove the following ingredients; 8

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A) A cheque that was issued by the accused presented for collection within the period of its validity.

B) That the cheque was dishonoured by the bank authorities for one of the reasons which attract the offence under section 138 of the Negotiable

Instruments Act, 1881.

C) That the drawee issued a notice under section 138 of the Negotiable

Instruments Act, 1881 within the statutory period.

D) That the drawer received the said notice, but failed to make any payment covered by the dishonoured cheque within the stipulated time as mentioned in section 138 of the Negotiable Instruments Act, 1881.

E) That the complaint was filed within the period of limitation in the court having jurisdiction.

F) A Prima facie proof that the cheque was issued in discharge of any legally enforceable subsisting debt.

15. In other words, it can be said that in a case under section 138 of N.I. Act, the initial burden will be upon the complainant to prove that the accused has issued the subject cheque towards the discharge of any debt or other liability.

The Material required to discharge the burden on the Complainant are 1. To prove that the Prime documents filed by the complainant to answer clauses A to D above are in his favour, 2. To prove that there is no dispute that the cheque has been drawn on the account of the accused. 3. Non-denial of signature of the accused on the instrument or proved that the signature present on the cheque belongs to the accused.

16. Therefore if all the ingredients were proved by the complainant or in other words if all the above points were answered positively in favour of the 9

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complainant and against the accused the presumption under section 139 of the Negotiable Instruments Act, 1881 comes into play and the burden of proving the case shifted to the accused and he has to rebut the presumption arises under section 139 of Negotiable Instruments Act, 1881 in favour of the complainant. To prove all the ingredients and to attract the provisions of 138 of the Negotiable Instruments Act, 1881 the complainant adduced her evidence, and the same is discussed here point-wise.

POINT A: Whether the Ex.P.2/Cheque was presented for collection within the period of its validity?

17. As per the evidence of P.W.1 the Ex.P-2/ Cheque was issued by the accused on 05-06-2017 from his check book maintained in his Bank, that

P.W.1 presented the same in Syndicate Bank, Jangareddigudem, for collection. In support of his oral testimony P.W.1 filed Pay in slip for deposit of Ex.P.2 / the cheque on 05-06-2017 at his Banker. P.W.1 testified that the same was returned under Ex.P-3/cheque return memo dated 12-06-2017 due to „Funds insufficient”. Originally the date mentioned on the Ex.P-2/ cheque was 05-06-2017 and the same is presented in Syndicate Bank,

Jangareddigudem for collection and the same was returned under Ex.P- 3/cheque return memo dated 12-06-2017 due to „Insufficient Funds”.

Therefore it can be safely presumed that the complainant presented Ex.P-2/ cheque in the above-mentioned bank for collection within its validity period as prescribed under section 138 (a) of Negotiable Instrument Act.

POINT B: Whether the cheque was dishonored by the bank authorities for one of the reasons which attract the offence punishable under section 138 of the

Negotiable Instruments Act, 1881?

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18. In the present case, the complainant presented the cheque for collection through his banker Syndicate Bank, Jangareddigudem and the same was returned under Ex.P-3/cheque return memo dated 12-06-2017 with an endorsement “Insufficient Funds”. The nomenclature mentioned in the cheque return memo plays a vital role in making out the offence under section 138 of the Negotiable Instruments Act, of 1881. On a plain and literal reading of section 138 of the Negotiable Instruments Act, 1881, it becomes clear that the section refers to the dishonour of a cheque on two grounds i.e.,

1) due to insufficiency of funds in the account to honour the cheque; and,

2) the amount of the cheque exceeds the amount arranged to be paid from that account by an agreement made with the bank.

19. In the present case, the Ex.P2/cheque was returned with an endorsement of “Insufficient Funds”. Thus, the endorsement on

Ex.P.2/cheque , in the present case on hand, certainly attracts the offence under section 138 of Negotiable

Instrument Act.

POINT C: Whether the notice as contemplated under section 138 of the

Negotiable Instruments Act, 1881 issued to the accused within the period prescribed by law?

20. In the present case, the P.W.1/complainant presented the cheque for collection in Syndicate Bank, Jangareddigudem and the same was returned with an Ex.P-3/ cheque return memo dated 12-06-2017 with an endorsement of “Insufficient Funds”. Later the P.W.1/complainant issued legal notice to the 11

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accused on 06-07-2017 under Ex.P.4/Office Copy of legal notice through registered post.

21. The learned counsel for the accused contended that the complainant in his pleadings stated that he got issued legal notice to the accused on 8.7.2017 whereas P.W.1 admitted that he did not issue notice to the accused on 8.7.2017 and not marked any postal receipt on that date. ON perusal though complainant pleads that he issued legal notice to the accused on 8.7.2017, on perusal Ex.P.4/legal notice was issued on 6.7.2017. The registered postal receipt attached to Ex.P.4 disclose that Ex.P.4 legal notice was sent through registered post to the accused on 8.7.2017. Thus, P.W.1 got issued the original of Ex.P.4/Legal notice within 30 days from the date of receipt of information regarding the return of the cheque unpaid. Hence,

Ex.P.4/Legal Notice is issued as contemplated under proviso (b) to section 138 of the Negotiable Instruments Act, 1881 to the accused within the period prescribed by law.

POINT D :Whether the drawer received the said notice, but failed to make any payment covered by the dishonoured cheque within the period provided under section 138(c) of the Negotiable Instruments Act, 1881?

22. As already indicated Provisos (b) and (c) to section 138 of N.I Act contain the most vital ingredients of the offence under the said section. Not only giving of notice but also the receipt of notice has to be proved by the complainant. The evidence of P.W.1 and Ex.P.5/Postal Acknowledgment dt 12.07.2017 disclose that legal notice was served to the appellant/accused.

The accused did not make any payment covered by dishonoured Cheque 12

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within fifteen days from the date of issuance of legal notice as contemplated under section 138(c) of the Negotiable Instruments Act, 1881.

POINT E: Whether the complainant filed the complaint within the period of limitation prescribed by law in the court having jurisdiction.

23. If the drawer fails to make the payment within 15 days of receiving the notice, the payee can file the complaint before the appropriate court within 30 days from the expiry of the notice period. The complainant filed this complaint before the trial Court on 21.08.2017 within in stipulated time as required under Sec.142(1) (b) of N.I Act as the accused failed to pay the cheque amount within fifteen days after service of the legal notice i.e., from 12-07-2017. Further, Ex.P-2 cheque was dishonored within the jurisdiction of the trial court i.e., Syndicate Bank, Jangareddigudem Branch. Hence the complainant filed the complaint within time of the limitation before this court having jurisdiction as prescribed under section 142 of N.I Act.

POINT F: Whether the cheque was issued by the accused in the discharge of a legally enforceable debt or not?

24. To prove that the cheque was issued by the accused in part payment of legally enforceable debt, the complainant himself examined as P.W.1 and got marked Ex.P-1 to P.5. Further on careful perusal of the cross examination of

Complainant and his witness i.e., P.W.2 on record including 313 criminal

Procedure Code examination of the accused, the accused not denied his signature present on Ex.P-2/ cheque. From the suggestions put by learned counsel for the accused in the cross-examination of P.W.1, it is evident that the accused took the defence that he issued Ex.P.2/Cheque to Vinayaka Chit 13

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Funds, Jangareddigudem and that P.W.1 in collusion with the said Vinayaka

Chit Funds took the said cheque and foisted this false case by creating

Ex.P.1/ Promissory note with forged signatures of the accused.

25. In proof of legally enforcement debt P.W.1 relied on Ex.P.1/ Promissory note. The evidence of P.W.1 is supported by the Attester P.W.2. Though

P.Ws 1 and 2 were examined in cross at length nothing elicited to discredit their testimonies. P.Ws 1 and 2 consistently testified that Ex.P.1 transaction took place at Jangareddigudem, that accused put his signature on Ex.P.1 promissory note by receiving consideration of Rs.1,20,000/-(Rupees One

Lakh Twenty Thousand only).

26. One of the appeal ground raised by the appellant is that as per the complaint pleadings Ex.P.1/promissory note was scribed by one

M.Nagarjuna Rao, that Ex.P.1 obviously appears holographic promissory note with wrong address i.e., father name and residential address of the accused. In this regard, on perusal Ex.P.1 disclose that M.Nagarjuna Rao is the scribe. The father‟s name the accused is mentioned in Ex.P.1 as

Kaleswara Rao. P.W.1 in his cross examination affirmed that accused brought

Rokkam Raju and Meka Nagarjuna and executed Ex.P.1 /promissory note.

P.W.2, one of the attestor, also supported the evidence of P.W.1 that

Ex.P.1 is scribed one M.Nagarjuna Rao. Accused not disputed his father‟s name and address mentioned in the long cause title ofcomplaint. Accused also not dispute his father‟s name and address mentioned in Ex.P.4/ legal notice and Ex.P.5/Postal acknowledgment. In all those documents father of the accused is shown as Kameswara Rao. It is not the case of the accused 14

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that his father‟s name is not Kameswara Rao. Hence, the plea of accused in respect of his father‟s name in Ex.P.1 is not enable.

27. Accused except denying his signature on Ex.P.1 promissory note, not took any steps to prove his defence that Ex.P.1 is forged document. Accused not even entered into witness box to prove his defence. Furthermore, accused not filed any document in respect of his membership in Vinayaka

Chits to whom he gave any cheque. Accused not even examined any witnesses in proof of his issuance of Ex.P.2/Cheque in relation to any transaction with Vinayaka Chits. Absolutely there is no evidence to believe the plea of the accused in respect of any collusion between P.W.1 and the above said Vinayaka Chits to foist false case against the accused.

28. Thereby the evidence of P.Ws 1 and 2 remains unshattered. No such circumstances established by the accused for existence of Ex.P.1/Promissory note and Ex.P.2/Cheque with P.W.1.

29. In the absence of such evidence on record in support of the defence pleaded by accused, the presumption under section 118 (a) of the Negotiable

Instrument Act came into play and it can be presumed that the said cheque was drawn or made for consideration on the date it bears. Furthermore,

Section 139 of the Negotiable Instruments Act enjoins to it and the court has to presume that the said Ex.P-2/ cheque was issued to the complainant towards part payment of legally enforceable debt due under

Ex.P.1/Promissory note. Therefore when the accused took a plea that the said

Ex.P-2 cheque was not issued to discharge legally enforceable debt and it 15

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was issued for some other purpose, it is for the accused to adduce cogent evidence to prove the said facts.

30. In general in criminal law, the accused is presumed to be innocent and an un-shifted burden of proof beyond reasonable doubt is on the shoulders of the prosecution. But the offence punishable under section 138 of the Negotiable

Instruments Act, 1881 is made under special enactment, wherein the mandatory presumption of law under sections 118 and 139 of Negotiable

Instruments Act, 1881 is prescribed. Section 118(a) of N.I Act says that there shall be a presumption until the contrary is proved, that every negotiable instrument was made or drawn for consideration and that every such instrument when it has been accepted, indorsed, negotiated or transferred, was accepted indorsed negotiated or transferred for consideration. Further,

Section 139 of the Negotiable Instruments Act says that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 of the Negotiable Instruments

Act, for the discharge, in whole or in part, of any debt or other liability. The term "cheque of the nature" referred to in Section 138 of the Negotiable

Instruments Act appeared in Section 139 of Negotiable Instruments Act means any cheque drawn by a person on an account maintained by him or her with a banker for payment of any amount of money to another person from and out of that account for the discharge, in whole or in part, of any debt or other liability, which is returned unpaid by the bank either because the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank.

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31. A conjoint reading of the three Sections will show that whenever the drawer of the cheque either admitted or proved his signature on the cheque, the presumption under Section 118 (a) of the Negotiable Instruments Act will come into the picture to say that the cheque is supported by consideration.

The presumption under Section 139 of the Negotiable Instruments Act is explanatory and supplementary to the presumption under Section 118 (a) of the Act to show that the cheque was received by the holder for the discharge of debt or other liability.

32. Therefore, this Court has to accept the contention of the learned counsel

for the complainant in a case where the signature of the drawer of the cheque

is proved, there shall be a presumption regarding the purpose for which the cheque was issued and the burden shall be cast upon the accused to rebut such presumption. In case of such rebuttal, the burden shall be again shifted on the complainant to prove the existence of debt or other liability for discharge of which the cheque was issued. Of course, there are several decisions of our Hon‟ble Apex court to the effect that the evidence needs to be adduced by the accused for rebutting such presumption shall not be comparable with the evidence required to be adduced on the side of the prosecution. The prosecution is expected to prove their case beyond a reasonable doubt, whereas the defence case can be proved by a preponderance of probabilities.

33. Relating to statutory presumption this court relied on a decision reported in 2023 SCC On Line SC 1275 in between Rajesh Jain Vs. Ajay Singh where in the Hon‟ble Apex court held that - "55. .....Once the presumption under

Section 139 was given effect, the Courts ought to have proceeded on the 17

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premise that the cheque was, indeed, issued in discharge of a debt/liability.

The entire focus would then necessarily have to shift to the case set up by the accused since the activation of the presumption has the effect of shifting the evidential burden on the accused. The nature of inquiry would then be to see whether the accused has discharged his onus of rebutting the presumption. If he fails to do so, the Court can straightaway proceed to convict him, subject to satisfaction of the other ingredients of Section 138. If the Court finds that the evidential burden placed on the accused has been discharged, the complainant would be expected to prove the said fact independently, without taking the aid of the presumption. The Court would then take an overall view based on the evidence on record and decide accordingly.

34. The Hon’ble Apex court further held: - “56. At the stage when the courts concluded that the signature had been admitted, the Court ought to have inquired into either of the two questions (depending on the method in which the accused has chosen to rebut the presumption): Has the accused led any defense evidence to prove and conclusively establish that there existed no debt/liability at the time of issuance of cheque? In the absence of rebuttal evidence being led the inquiry would entail: Has the accused proved the nonexistence of debt/liability by a preponderance of probabilities by referring to the „particular circumstances of the case‟? "

35. In the light of the above decision, in a prosecution for the offence under

Section 138 of N.I. Act unless the contrary is proved, the Court must statutorily presume -

a) that the cheque was drawn on an account maintained by the drawer with the banker, 18

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b) that it was for the purpose of paying money to any other person out of that account;

c) that it was for discharge, in whole or in part, of any debt or any other liability; and

d) that it was received by the holder in the discharge of any debt or any liability.

36. In the present case on hand, Ex.P-2 cheque leaf was drawn from the accused bank, and the same was returned due to insufficient funds. When accused took the defence of forgery of his signature on Ex.P.1, it is the duty of the accused to explain as to how the Ex.P.1 and Ex.P.2 happened to fall into the hands of P.W.1. It is the burden of the accused to answer the circumstances under which Ex.P.2/Cheque came into the possession of complainant and the necessity for P.W.1 to file the present case against him when the accused is not indebted to P.W.1. Thereby, from the evidence on record P.W.1 proved that the accused issued Ex.P.2/cheque for part payment of the debt due under Ex.P.1.

37. In proof of issuance of Ex.P-2 cheque, the presumption under section 118 (a) and section 139 of N.I. Act comes into play and it can be presumed that Ex.P-2 cheque was issued in discharge of legally enforceable debt due under Ex.P.1 and the burden shifts upon the shoulders of the accused to rebut the presumption rose under section 139 of Negotiable Instruments Act, 1881. Further, the burden on the shoulders of the accused/drawer of the cheque is as stated above not certainly as heavy and onerous as the initial paramount burden is on the prosecution case. But it is not sufficient to raise fanciful doubts, to give mere explanations or suggestions and there must be 19

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tangible evidence to inspire the confidence of the court but the accused failed to prove the same. Except denying his liability, accused not adduced any evidence to rebut the said presumption.

38. Furthermore, the accused raised the defence that the complainant is not having the financial capacity to advance such a huge amount to the accused.

Relating to the above aspect in a decision reported in 2007 (1) ALT (Crl.) 138 (A.P.) in between G. Nirmala Vs. Syed Zaheer Ahmed the Hon‟ble High

Court of A.P. held: “Magistrate has to see whether complainant has followed procedure provided u/Sec.138 of N.I.Act r/w 141 of the Act. But Magistrate cannot go into the question of competence of complainant to lend amount covered by cheque and whether accused has competence to borrow said amount.”

39. Their Lordships further held: “Another important aspect is the approach of the Court below in holding that the amount of Rs.1,20,000/- might not have been paid by the complainant to the accused. The Court below has forgotten the fact that it is deciding a complainant under Section 138 of the

Act, but not a suit for recovery of money. In a complaint under Section 138 of the Act, as already discussed, the requirements are as to whether the complaint has followed the procedure provided under Section 138 read with

Section 141 of the Act. When the requirements under Section 138 read with

Section 141 of the Act are fulfilled, the irresistible conclusion to which the

Court shall arrive at is that there is a legally enforceable debt and that the accused is liable for punishment for the offence under Section 138 of the Act.

In the instant case, the learned Magistrate has also discussed the 20

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IX Addl. District & Sessions Court, Kovvur.

competence of the complainant to advance the loan and also the competence of the accused to borrow the loans, which are not permissible under law.”

40. Their Lordships further held: “In a case of this nature, the Court should have restricted itself without going into those aspects, as it is unnecessary for a criminal court to go into the details whether it is probable to say that such huge amount was lent by the complainant to the accused without knowing the profession or education and his capacity to repay the amount, etc., which are beyond the scope of the criminal Court, Hence, this court has no hesitation to come to the conclusion that the Judgment impugned in this appeal is liable to be set aside.” In view of the above dicta the competence of the complainant to advance the amount need not be looked into in dealing with the cases under section 138 of the Negotiable Instruments

Act and the same is beyond the scope of the criminal court.

41. In the present case on hand, though accused denied financial capacity of the complainant, he has not adduced any evidence. On the other hand,

P.W.1 consistently testified that he got account in Andhra Bank and in

Syndicate Bank which clearly show that he got Rs.1,00,000/- in his account as on the date of Ex.P.1 transaction.

42. Accused further contended that the complainant filed this false case against him to extort money. Even though the accused took the above-said plea, he did not file any piece of document and also did not adduce any cogent evidence to prove the above-mentioned defence. The above contention of the accused goes to show that the accused took the said plea 21

Crl.A.111/2019, dt:29.04.2025

IX Addl. District & Sessions Court, Kovvur.

for the sake of the plea only and therefore the plea taken by the accused may not give a better defence to the accused.

43. For the aforesaid discussion, accused failed to adduce cogent evidence to rebut the presumption. Therefore when the accused failed to discharge his burden by adducing probable defence he could not escape from the criminal liability under section 138 of Negotiable Instruments Act, 1881. Thereby the presumption drawn under section 139 of Negotiable Instruments Act, 1881 hold good in favour of complainant.

44. From the aforesaid discussion, complainant proved that the accused issued Ex.P2/cheque in discharge of legal enforceable debt due under

Ex.P.1/promissory note , that Ex.P.2 was dishonoured , that inspite of service of legal notice accused failed to pay the cheque amount and thereby, accused committed the offence under section 138 of Negotiable Instrument

Act. Thus, the complainant proved the guilt of the accused for the offence under Sec.138 of N.I Act. Accordingly, points No.1 and 2 are answered in favour of complainant and against the accused.

45. POINT NO.3:-

In view of the above discussion, this court is of the view that there is no illegality or irregularity in the finding recorded by the trial court and even after reappraisal of the entire evidence, this court finds no substance in the contentions raised by the counsel for the accused, the grounds urged by the accused would not stand to any legal scrutiny, as the impugned calendar and judgment of the trial court are supported by legal reasoning. Hence, the appeal is devoid of merits and deserves to be dismissed. Point No.3 is answered against the appellant.

22

Crl.A.111/2019, dt:29.04.2025

IX Addl. District & Sessions Court, Kovvur.

46. In the result, the appeal is dismissed, confirming the impugned calendar and judgment, conviction, and sentence passed by the learned Judicial

Magistrate of I Class, Jangaredigudem against the appellant/accused in

C.C.No.1282/2017, dated 29-01-2019 for the offence punishable under

Section 138 of the Negotiable Instruments Act. The appellant/accused shall undergo Simple Imprisonment for Six(6) months and sentenced to pay a fine of Rs.10,000/- (Rupees Ten thousand only) and in default to pay fine amount to suffer Simple Imprisonment for Four Months.

The appellant/accused shall immediately surrender before the learned trial Court and undergo the sentence inflicted against him. If he fails to do that, the learned trial Court is directed to secure his presence and to enforce the punishment. It is to inform that the appellant/accused has a right to prefer revision before the Hon‟ble High Court of Andhra Pradesh at Amaravathi. The office is directed to furnish a free copy of the judgment to the appellant/accused.

Dictated to the Stenographer directly typed by her in computer,

corrected and pronounced by me in open court, this the 29 th day of April,

2025.

Sd/- Smt.M.Anuradha,

IX Additional District & Sessions Judge, Kovvur. No oral or documentary evidence is adduced on either side.

Id/-Smt.M.A.

IX AD&SJ,

Kovvur

Copy to:

1. The Registrar (Judicial), High Court of A.P., Hyderabad.

2. The Judicial Magistrate of I Class, Jangareddigudem.

1

IN THE COURT OF THE IX ADDITIONAL DISTRICT JUDGE::

WEST GODAVARI, KOVVUR.

Present: Smt. M. Anuradha,

IX Additional District Judge, Kovvur.

Wednesday, this the 5th day of February, 2025

A.S No.56 of 2016

(Appeal filed under Order XLI Rule 1 of The Code of Civil Procedure)

Between:

Sri Koya Kasi Visweswra rao, S/o. Venkata Raju, 69 years, Male, Cultivation,R/o. Dippakayalapadu village, Koyyalagudem mandal, W.G.Dt.

..Appellant/ Plaintiff

And

1. Koya Satyanarayanamurthy, S/o. Venkata Raju,63 years, Male, Cultivation, R/o. Jeelugumilli, Jeelugumilli Mandal,W.G.Dt.

2. Koya Sesi Rekha, W/o. Venkata Raju,80 years, Female, Cultivation, R/o. Jeelugumilli, Jeelugumilli Mandal, W.G.Dt.

3. Kurukuri Bulli Kasulu, W/o. Tataji, 60 years, Female, Cultivation, R/o. China Kondepudi, Seethanagaram Mandal, E.G.Dt.

4. Koya Seshamma, W/o. Late Suryaprakasa rao, 60 years, Female, cultivation, R/o. Jeelugumilli, Jeelugumilli Mandal, W.G.Dt.

5. Koya Rajesh, S/o. Late Surya Prakasarao, 35 years, Male, Cultivation, R/o Jeelugumilli, Jeelugumilli Mandal, W.G.dt.

6. Kantamani Parvathi, W/o. Venkata Ramana, 45 years, Female, Cultivation, R/o. Dippakayalapadu, Koyyalagudem Mandal, W.G.Dt.

7. Jonnalagadda Venkata Rao, S/o. Venkataramanna, 70 years, Male, Cultivation,R/o. Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

8. Eegala Bhaskara rao, S/o. Late Ammulayya, 70 years, Male, cultivation, R/o. Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

9. Eegala Kanthamma, W/o. Late Eegala Krishna rao, 72 years, female, Cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

10. Eegala Chittiraju, S/o. Krishna rao, 52 years, Male, Cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

11. Koya Bebi, W/o. Satyanarayana, 55 years, female, Cultivation, 2

R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

12. Jonnalagadda Bulli Ammayi, W/o. late Ramachandram, 78 years, Female, Cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

13. Jonnalagadda Venkata Satyanarayana, S/o. late Ramachandram, 55 years, Male, Cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

14. Bandipalli Bebi Sarojini, W/o. Venkateswara rao, 45 years, Female, Cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

15. Jonnalagadda Savitri, W/o. late Subba rao, 75 years, Female, Cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

16. Jonnalagadda Ramamohana rao, S/o. Late Subba rao, 55 years, Male, Cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

17. Makkina Lakshmi Kantham, W/o. Srimannarayana 58 years, Female, Cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

18. Koya Ratnakumari, W/o. Srimannarayana, 58 years, Female, Cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

19. Balusu Krishna Kumari, W/o. Satyanarayana, 50 years, Female, Cultivation, R/o. Pullapadu, Nallajerla Mandal, W.G.Dt.

20. Alapati Annapoorna, S/o. Rama rao, 60 years, Male, cultivation, R/o. Arikirevula, Kovvur Mandal, W.G.Dt.

21. Duggirala Ganeswara rao, S/o. Ramanna, 75 years, Male, Cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

22. Eegala Annapurna, W/o. Venkata rao, 70 years, Female, Cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

23. Maddipati Venkataratnamma, W/o. Late Durga Rao, 72 years, Female, cultivation, R/o. Chinakondepudi, Seethanagaram Mandal, E.G.Dt.

24. Koya Bullemmayi, W/o. Venkataratnam, 80 years, Female, Cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

25. Duggirala Satyavathi, W/o. late Venkataratnam, 60 years, Female, Cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

26. Duggirala Venkatarao, S/o. Late Venkataratnam, 40 years, Male, Cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

27. Kotari Varalakshmi, W/o. Subbarao, 55 years, Female, cultivation, R/o. Gowripatnam, Devarapalli Mandal, W.G.Dt.

28. Koyyalamudi Padmavathi, W/o. Narasimhamurthy, 50 years, Female, Cultivaiton, R/o. Kothuru, Devarapalli Mandal,W.G.Dt.

29. Kondebathula Sarada, W/o. seetharama Chowdary, 45 years, Female, Cultivation, R/o. Ramachandrapuram, Seethanagaram Mandal, E.G.Dt.

30. Inpudi Bebi Ratnam, W/o. Kanakarao, 36 years, Female, Cultivation, R/o. Mallavaram, Chagallu Mandal, W.G.Dt.

31. Duggirala Raghupathamma, W/o. Venkatarao,90 years, Female, Cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

3

32. Duggirala Koteswara Rao, S/o. late Venkata rao, 60 years, Male, Cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

33. Duggirala Babu Rajendra Prasad, S/o. late Venkata rao, 58 years, Male, Cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

34. Vegi Arundathi Devi, W/o. Venkataratnam, 50 years, Female, cultivation, R/o. Kovvur, Kovvur Mandal, W.G.Dt.

35. Yeddanapudi Kasulamma, W/o. Venkataratnam, 60 years, Female, cultivation, R/o. Gandhinagaram, Devarapalli Mandal, W.G.Dt.

36. Illuri Krishna Rao, S/o. late Narayudu, 75 years, Male, Cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

37. Illuri Koteswara rao, S/o. late Narayudu, 70 years, Cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

38. Uppalapati Buli Venkamma, W/o. Satyam, 65 years, Female, cultivation, R/o. Vadalakunta, Gopalapuram Mandal, W.G.Dt.

39. Nadella Buli Kasulu, W/o. Nageswara rao, 60 years, Female, cultivation, R/o. Pothavaram, Nallajerla Mandal, W.G.Dt.

40. Illuri Suryakantham, W/o. Late Veerraju, 60 years, female, cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

41. Illuri Subba rao, S/o. late Veerraju, 55 years, Male, Cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

42. Illuri Satyanarayana, S/o. late Veerraju, 52 years, Male, Cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

43. Vemulapalli Dhanalakshmi, W/o. Satyanarayana, 45 years, Female, cultivation, R/o. Tirugudumetta, Tallapudi Mandal, W.G.Dt.

44. Gadde Satyavathi, W/o. Venkateswara rao, 42 years, Female, cultivation, Vadalakunta, Gopalapuram Mandal, W.G.Dt.

45. Eegala Venktarao, S/o. Latge Ganganna, 72 years, Male, cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

46. Eegala Bhadram, S/o. Late Ganganna, 70 years, Male, cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

47. Kodavati Parvathamma, D/o. late Eegala Ganganna, 60 years, Female, cultivation, R/o. Peddapuram, Gopalapuram Mandal, W.G.Dt.

48. Gadde Sesha, W/o. Kondayya, 55 years, Female, Cultivation, R/o. Chityala, Tallapudi Mandal, W.G.Dt.

49. Pulaganti Satyanarayana Reddy, S/o. Seshareddy, 95 years, Male, cultivation, R/o. Gopalapuram, Gopalapuram Mandal, W.G.Dt.

50. Pulaganti Krishnareddy, S/o. Seshareddy, 90 years, Male, cultivation, R/o. Tyajamupudi, Devarapalli Mandal, W.G.Dt.

51. Eegala venkata rao @ Venkataraju, S/o. Seshanna, 90 years, male, cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

52. Duggirala Bapineedu, S/o. Late Kondalarayudu, 75 years, Male, cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

4

53. Duggirala Venkata Ramanarao, S/o. Late Kondalarayudu, 73 years, Male, cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

54. Duggirala Suryachandram,S/o. Late Kondalarayudu, 70 years, male, cultivation & Business, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

55. Duggirala Satyanarayana, S/o. late Kondalarayudu, 78 years, Male, cultivation & Business, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

56. Duggirala Sarveswara rao, S/o. Late Kondalarayudu, 65 years, Male, cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

57. Vattikuti Parama Sadveemani, W/o. Ramamohana rao, 66 years, Female, cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

58. Lakamsani Varalakshmi, W/o. raja rao, 45 years, Female, Advocate, R/o. RTC complex back side, Rajahmundry, E.G.Dt.

59. Duggirala Chandravathi, W/o. Late Kondalarayudu, 95 years, Female, cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

60. Ghanta Koteswara rao, S/o. late Suryanarayana, 85 years, Male, cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

61. Neerukonda Anasuyamma, W/o. Adinarayana, 95 years, female, cultivation, R/o. Ragolapallli, Tallapudi Mandal, W.G.Dt.

62. Maddukuri Ratnavathi, W/o. Krishna rao, 78 years, female, cultivation, R/o. Ragolapalli, Tallapudi Mandal, W.G.Dt.

63. Taninki lakshmikantham, W/o. Koteswara rao, 65 years, female, cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

64. Ghanta Mangayamma, W/o. late Chittiyya, 65 years, Female, cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

65. Ghanta Satya Veera Venkata Pushkararao, S/o. late Chittiyya, 33 years, Female, cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

66. Gudapati Subbalakshmi, W/o. Srinivasu, 36 years, female, cultivation, R/o. Kalavalapalli , Chagallu Mandal, W.G.Dt.

67. Maram Srinivasareddy, S/o. Ramanna, 55 years, Male, cultivation, R/o. Gunnampalli, Bhimadole Mandal,W.G.Dt.

68. Vanga Seethayamma, W/o. Venu, 53 years, Female, cultivation, R/o. Gopalapuram, Gopalapuram Mandal, W.G.Dt.

69. Eegala Mangamma, W/o. late Satyanarayana, 85 years, female, cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

70. Eegala Venkataratnam,S/o. Late Satyanarayana, 60 years, male, cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

71. Eegala Abbulu, S/o. Late Satyanarayana, 55 years, male, cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

72. Uppalapati Bullemmayi, W/o. Seeramamurthy, 65 years, Female, 5 cultivation, R/o. Vadalakunta, Gopalapuram Mandal, W.G.Dt.

73. Pinnamaneni Suseela, W/o. Venkataratnam, 65 years, female, cultivation, R/o.Vellachintalagudem, Gopalapuram Mandal, W.G.Dt.

74. Kurukuri Krishnaveni, W/o. Satyanarayana, 60 years, female, cultivation, R/o. Sangaigudem, Devarapalli , Gopalapuram Mandal, W.G.Dt.

75. The State Rep. by its District Collector, West Godavari District, Eluru.

... Respondents/Defendants

( Appeal against the Decree and Judgment in O.S No.25/2006 passed by the

Principal Senior Civil Judge, Kovvur, dated 9.3.2016.)

Between:

Sri Koya Kasi Visweswra rao ... Plaintiff

And

1. Koya Satyanarayanamurthy

2. Koya Sesi Rakha

3. Kurukuri Bulli Kasulu

4. Koya Seshamma

5. Koya Rajesh

6. Kantamani Parvathi

7. Jonnalagadda Venkata Rao

8. Eegala Bhaskara rao

9. Eegala Kanthamma

10. Eegala Chittiraju

11. Koya Bebi

12. Jonnalagadda Bulli Ammayi

13. Jonnalagadda Venkata Satyanarayana

14. Bandipalli Bebi Sarojini

15. Jonnalagadda Savitri

16. Jonnalagadda Ramamohana rao

17. Makkina Lakshmi Kantham

18. Koya Ratnakumari

19. Balusu Krishna Kumari

20. Alapati Annapoorna

21. Duggirala Ganeswara rao

22. Eegala Annapurna

23. Maddipati Venkataratnamma

24. Koya Bullemma 6

25. Duggirala Satyavathi

26. Duggirala Venkatarao

27. Kotari Varalakshmi

28. Koyyalamudi Padmavathi

29. Kondebathula Sarada

30. Inpudi Bebi Ratnam

31. Duggirala Raghupathamma

32. Duggirala Koteswara rao

33. Duggirala Babu Rajendra Prasad

34. Vegi Arundathi Devi

35. Yeddanapudi Kasulamma

36. Illuri Krishna Rao

37. Illuri Koteswara rao

38. Uppalapati Buli Venkamma

39. Nadella Buli Kasulu

40. Illuri Suryakantham

41. Illuri Subba rao

42. Illuri Satyanarayana

43. Vemulapalli Dhanalakshmi

44. Gadde Satyavathi

45. Eegala Venktarao

46. Eegala Bhadram

47. Kodavati Parvathamma

48. Gadde Sesha

49. Pulaganti Satyanarayana Reddy

50. Pulaganti Krishnareddy

51. Eegala Venkata rao @ Venkataraju

52. Duggirala Bapineedu

53. Duggirala Venkata Ramanarao

54. Duggirala Suryachandram

55. Duggirala Satyanarayana

56. Duggirala Sarveswara rao

57. Vattikuti Parama Sadveemani

58. Lakamsani Varalakshmi

59. Duggirala Chandravathi

60. Ghanta Koteswara rao

61. Neerukonda Anasuyamma

62. Maddukuri Ratnavathi

63. Taninki Lakshmikantham

64. Ghanta Mangayamma

65. Ghanta Satya Veera Venkata Pushkararao

66. Gudapati Subbalakshmi

67. Maram Srinivasareddy 7

68. Vanga Seethayamma

69. Eegala Mangamma

70. Eegala Venkataratnam

71. Eegala Abbulu

72. Uppalapati Bullemmayi

73. Pinnamaneni Suseela

74. Kurukuri Krishnaveni

75. The State Rep. by its District Collector, West Godavari District, Eluru.

.. Defendants

This Appeal came for the final hearing before me on 30.12.2024 in the presence of Sri T.N.V.Ramanamurthy, learned counsel for Appellant, Sri N.Pullarao, learned counsel for Respondent No.44, Sri I.V.Ramanamurthy, learned counsel for Respondent No.58, Appeal against Respondent No.26 was dismissed, none appeared for the R.1 to R.25, R.27 to R.43, R.45 to R.57, R.59 to R.75 and the matter having stood over to this day for consideration, this court delivered the following:

J UD G M E N T

This unsuccessful Appellant/Plaintiff (hereinafter referred to as the

Plaintiff for short) filed this Appeal assailing the impugned decree and judgment dated 09-03-2016 of the learned Principal Senior Civil Judge, Kovvur (for short „trial court‟), made in O.S No.25 of 2006 dated 09-03-2016.

2. This Court of first appeal, being the Court of fact finding, it is necessary to refer to the pleadings of both the sides and to re-appreciate the evidence once again independently. In this appeal suit, the parties are being referred to as „the plaintiff‟ and „the defendants‟ as arrayed before the trial court for convenience and clarity.

3. The plaintiff filed the suit before the trial court for partition of undivided

Ac.36-00 of land in the plaint schedule property into 6/20th share and to deliver its possession after dividing the same from the plaint schedule property and for costs of the suit.

8

4. The plaint averments in O.S.No.25/2006 before trial court in brief, are as follows:

(a) It is averred that the 1st defendant is the brother, the 2nd defendant is the mother, 3rd defendant is the sister, 4th defendant is the sister-in-law of the plaintiff. The defendants No.5 and 6 are the children of the 4th defendant, that the husband of defendant No.4 died on 14.10.1981. One Koya Subbarayudu is the paternal grand father of the plaintiff and father of Koya Venkataraju.

Plaintiff pleads that the defendant No.1,3 and the husband of 4th defendant namely Surya Prakasha Rao are the children of Koya Venkata Raju and the 2nd defendant. Plaintiff pleads that defendants No.1 to 6 are the legal heirs of late

Koya Venkata Raju died on 14.11.1989 and Koya Subbarayudu died in the year 1959. Plaintiff further pleads that the plaint schedule property is cultivable land and Zamindary Estate, that the paternal grand father of the plaintiff was in possession of Ac.36-00 cents in the plaint schedule property before abolition of the estates. Plaintiff pleads that Ryotwari patta was given to the plaint schedule property in the names of Koya Subbarayudu, Jonnalagadda

Venaktaratnamma, Duggirala Venkatarao, Illuri Narayudu, Eegala Ganganna,

Pulaganti Venkata Ramireddy, Eegala Venkatarao @ Venkata Rao, Eegala

Ambulayya, Duggirala Kondalarayudu, Ganta Suryanarayana, Marem Ramana,

Marem Venkanna and Eegala Satyanaraya jointly for Ac.263.50 cents out of which Koya Subbarayudu‟s family was holding Ac.36-00 cents. Plaintiff pleads that Koya Subbarayudu has got joint and undivided 36 acres in the pliant schedule property. Plaintiff pleads that he is entitled for 6/20th share, the 2nd defendant is entitled for 1/20th share and the 3rd defendant is entitled for 1/20th share in the undivided 36 acres of land.

(b) Plaintiff pleads that Late Jonnalagadda Venkataramana has got four sons namely Satyanarayana, Ramachandram, Subbarao and Venkata Rao i.e., the 7th defendant herein, that Jonnalagadda Satyanarayana died about 50 years back, Jonnalagadda Ramachandram died in the year 1995 and Subba Rao died 9 in the year 1996. Plaintiff pleads that the defendants No.8 to 11 are the legal heirs of Jonnalagadda Satyanarayana, that the defendants No.12 to 14 are the legal heirs of Jonnalagadda Rama Chandram and defendants No.15 to 19 are the legal heirs of Jonnalagadda Subbarao, that Chava Ramulamma, D/o

Jonnalagadda Venakataramanna died about 45 years back leaving the 20th defendant as her legal heir, that defendants No.7 to 20 are the legal heirs of late Jonnalagadda Venkata Ramanna.

(c) Plaintiff pleads that Duggirala Ramanna died about 25 years back leaving the defendants No.21 to 30 as his legal heirs, that Duggirala

Venkatarao died long back leaving the defendants 31 to 35 as his legal heirs.

Illuri Narayudu @ Narayana Murthy died 15 years back leaving the defendants 36 to 44 as his legal heirs. Plaintiff pleads that Eegala Ganganna died 40 years back and the defendants No.45 to 48are his legal heirs, that Eegala Ambulayya died 30 years back leaving the defendants No.8 to 11 as legal heirs who are also the legal heirs of Jonnalagadda Satyanarayana, that Pulaganti Venkata

Ramireddy died 3 years back without any issues and the defendants No.49 and 50 are the legal heirs of Pulaganti Venakta Rami Reddy.

(d) Plaintiff pleads that the defendant No.51 is the joint patta holder.

Defendants No.52 to 59 are the legal heirs of Duggirala Kondalarayudu, that

Ganta Satyanarayana died about 35 years back leaving the defendants No.60 to 66 as his legal heirs. Marem Raman died long time back leaving the 67th defendant as his legal heir, that Marem Venkanna died long back leaving the 68th defendant as his legal heir. Eegala Satyanarayana died 5 years back leaving the defendants NO.69 to 74 as his legal heirs.

(e) Plaintiff pleads that himself and defendants No.1 to 6 are entitled for 36 acres of land out of the plaint schedule property. The plaint schedule property to an extent of Ac.263.50 cents is popularly known Pitchingulametta which is a hillock with cashew nut trees, mango trees, rocks and bushes.

Plaintiff pleads that as the plaint schedule property is not valuable property, the 10 plaintiff and the defendants No.1 to 74 kept it joint by using the same for the grass and cattle etc., that he came to know that the some of the defendants are creating false, collusive and nominal documents and approaching the 75th defendant i.e., the Government to take away compensation. The plaintiff filed the suit for partition of undivided Ac.36-00 of land in the plaint schedule property into 6/20th share and to deliver its possession after diving the same from the plaint schedule property and for costs of the suit.

5. Defendants No.41 and 59 filed separate written statements. The defendants No.40,42,43 and 44 adopted the written statement filed by the defendant No.41. The defendants No.52,53 and 58 adopted the written statement filed by the defendant No.59.

a) The brief averments of the written statement of the defendant

No.41 are reads as follows;

It is averred that this suit is filed with a view to harass the defendants and to have wrongful gain if possible, that the plaintiff or his ancestors have nothing to do with the schedule properties, that the revenue records do not confer any title in their favour, that plaintiff‟s claim is baseless, frivolous and is to be rejected in limini. Defendant No.41 pleads that as the rate of lands increased, the plaintiff with a fraudulent intention filed this suit, that plaintiff and their ancestors migrated from Jeelugumilli more than 38 years back and they were never in possession and enjoyment of the schedule property. It is further averred that the suit is barred by limitation and is liable to be dismissed with costs.

b) The brief averments of the written statement of the defendant

No.59 are reads as follows;

It is averred that there is no cause of action for the suit, that Suit schedule is not correct and the valuation of Court fee paid is not correct, that the plaint schedule property was never in joint and constructive possession of the plaintiff and the defendants. He further pleads that the Court fee of Rs.200/- paid by the 11 plaintiff is insufficient, that Kondalaraydu i.e., the husband of the 59th defendant and his son Venkata Ramanarao has got patta to an extent of Ac.28- 00 and they have separately filed land ceiling declaration for an extent of

Ac.14-00 each. He further pleads that they have sold Ac.9-50 cents each to

Thontepu people under two sale deeds dated 29.10.1986 and 04.11.1986 and delivered possession, that remaining Ac.9-00 is in possession and enjoyment of the heirs of Kondalaraydu and Venkata Ramana Rao. Defendant No.59 pleads that plaintiff or his ancestors were never had any title or possession in the pliant schedule property. He further pleads that the suit is bad for non joinder of necessary parties, that the name of the 59th defendant is

Ramachandramma, that the heirs of Kondalarayudu and his son Venkata

Ramana Rao perfected their title to Ac.28-00 of land by way of adverse possession also, that the plaint pleadings are not clear about the plaintiff‟s entitlement to 6/20th share, that plaintiff is not entitled for the relief and prays the suit is liable to be dismissed.

6. Basing on the above pleadings the trial court has framed the following issues;

1) Whether the plaintiff is in joint and constructive possession of the plaint schedule property?

2) Whether the suit is bad for mis-joinder and non-joinder of necessary parties?

3) Whether the adverse possession pleaded by defendants is true?

4) Whether the plaintiff is entitled for partition of the plaint schedule property and for separate possession as prayed for?

5) To what relief?

7. During the course of trial before the trial Court, the plaintiff/ Koya

Kasivisweswara Rao examined himself as P.W.1. He got marked Ex.A.1 to

Ex.A.6. On behalf of defendants no oral or documentary evidence is adduced.

On Contest, the trial Court dismissed the suit without costs.

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8. Aggrieved of the said Judgment and decree the trial Court, the unsuccessful plaintiff had preferred this appeal on various grounds. The main contentions in the grounds of appeal are that:

(1) that the Decree and Judgment of trial court in O.S.25/2006 dt.09.03.2006 are contrary to principles of law, weight of evidence and probabilities of the case; (2) that the trial court failed to observe the oral and documentary evidence placed by the Appellant and erroneously came to a conclusion and dismissed the suit instead of decreeing the suit; (3) that the trial court ought to have decreed the suit as the plaintiff proved that the plaint schedule property was in possession of the paternal grand father of the plaintiff for an extent of Ac.36-00 cents before the Abolition of Estates and also Rythwari pattas was given to the plaint schedule property in the names Koya Subba Rayudu and others for an extent of Ac.263.50 cents out of which Koya Subbarayudu‟s family was holding Ac.36-00 cents of land; (4) that the trial court ought to have seen that in a suit for partition all the share holders who are not available despite the diligence of the

Appellant/Plaintiff need not be added as parties to the suit which the plaintiff could establish his undivided share in the plaint schedule property; (5) that the trial court ought to have seen that the appellant/plaintiff made all efforts in joining them as parties to this suit and the suit ought not have been dismissed for non-joinder of parties as their representatives of joint owners are shown as parties to the suit; (6) that the trial court should have appreciated the documents filed by the plaintiff which are marked as Ex.A.1 to Ex.A.6 which clearly establish that the appellant/plaintiff and his predecessors in interest are having right in the suit schedule property; (7) that the trial court should have seen that the plaint schedule property was established to be popularly known as Pitchingulametta which the hillock with 13 cashews not and other tress which fact was not denied by any of the defendants; (8) that the trial court ought to have seen that the contesting defendants also not denied the case of the plaintiff specifically except making a bare denial; (9) that the trial court ought to have seen that though plaintiff placed available evidence before the Court as P.W.1, whereas the defendants did not adduce any evidence either or oral or documentary evidence contradicting the plea of the appellant/plaintiff and in the absence of the evidence from the defendants

before the Court and the trial court ought to have decreed the suit as there is no

evidence forthcoming from the defendants‟ side; (10) that the trial court ought to have seen that though certain defendants died subsequent to filing of the suit, the same was not brought to the notice of the

Court from the defendants‟ side and mere non joinder of legal representatives of the deceased defendants will not vitiated the suit and in the absence of any specific plea from the contesting the defendants regarding who are to be added as parties or the effective adjudication the suit is not bad for non-joinder of parties; (11) that the trial court ought to have appreciated the legal position submitted by the Appellant/Plaintiff in Vidyadahr Vs. Mankik Rao and another 1992(2)

Civil Court Case Page 91 S.C and ought to have decreed the suit as none from the defendants were examined.

Therefore, the appellant prays to consider the grounds mentioned in the grounds of appeal and other grounds and allowed the appeal with costs.

9. Heard both counsels for the Appellant/Plaintiff and Respondents/

Defendants.

10. In view of the contentions put forth by both sides and on perusal of the material available on record, the points that arise for consideration in this appeal are:-:

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1. Whether the Plain Schedule Properties are ancestral property of Plaintiff and Defendant No.1 to 74?

2. Whether the plaintiff and defendants No.1 to 74 are in joint and constructive possession of the plaint schedule property?

3. Whether the plaintiff is entitled for partition of the plaint schedule property and for separate possession as prayed for?

4. Whether the adverse possession pleaded by defendant is true?

5. Whether the suit is bad for mis-joinder of paties or for non-joinder of necessary parties?

6. Whether the suit laid by the Appellant/Plaintiff against the

Respondents/ Defendants is proper and if decree and judgment of the trial

Court in O.S No.25 of 2006 dated 9-03-2016 on the file of Principal Senior

Civil Judge, Kovvur require interference?

7. To what relief?

11. POINT NO.5:- One of the defence pleaded by defendant No.59 is that the suit is bad for misjoinder of parties and for non-joinder of necessary parties. The contested Defendnat No.59 is that Defendant No.59 is her husband and her son by name Venkata Ramana Rao alienated an extent of Ac.9-50 cents each to Thotepu people under two registered sale deeds dated 29.10.1986 and 04.11.1986 and delivered possession and thereby the suit is bad for non joinder of necessary parties. However, in proof of such alienation defendant No.59 not adduced any evidence. In the cross-examination P.W.1 admitted that Defendnat

No.7,8,11, 18,21,23,25,45, 46,51,53,55,56,59 and 65 died leaving behind their legal heirs. Admittedly plaintiff has not impleaded the Legal heris of the above said deceased defendants.

12. In this regard, the learned counsel for the plaintiff relied upon the

Jujdgment reported in M.D.Hussain (dead) by L.Rs and Others Vs. Occhavlal and Others reported in AIR 2008 SC 1462 , wherein their Lordships held that in the suit property was sufficiently and in a bonafide matter represented, it can not 15 be dismissed on the ground of mere non joinder of all the legal representatives of the deceased defendant. The learned counsel for plaintiff contended that simply because of non impleadment of some of the legal representatives of the deceased defendant, the suit will not abate as a whole.

13. The evidence on record disclose that Defendants No.7,8,11, 18 died leaving behind their legal heirs. However, plaint pleadings disclose that defendants No.7 to 20 are the legal heirs of Jonnalagadda Venkata Ramana.

Thereby, defendant No.9,10,12 to 17, 19 are representing the estate of the deceased Jonnalagadda Venkata Ramana, who is alleged joint pattadar of plaint schedule property.

14. The evidence on record disclose that Defendants No.21,23,25 died leaving behind their legal heirs. However, plaint pleadings disclose that defendants No.21 to 30 are the legal heirs of Duggirala Ramana. Thereby, defendant No.22, 24, 26 to 30 are representing the estate of the deceased

Duggirala Ramana, who is alleged joint pattadar of plaint schedule property.

15. The evidence on record disclose that Defendants No.45,46 died leaving behind their legal heirs. However, plaint pleadings disclose that defendants

No.45 to 48 are the legal heirs of Eegala Ganganna. Thereby, defendant

No.47,48 are representing the estate of the deceased Eegala Ganganna, who is alleged joint pattadar of plaint schedule property.

16. The evidence on record disclose that Defendants No.53 ,55,56,59 died leaving behind their legal heirs. However, plaint pleadings disclose that defendants No.52 to 59 are the legal heirs of Duggirala Kondala Rayudu.

Thereby, defendant No.54,57,58 are representing the estate of the deceased

Duggirala Kondalarayudu, who is alleged joint pattadar of plaint schedule property.

17. The evidence on record disclose that Defendants No.65 died leaving behind their legal heirs. However, plaint pleadings disclose that defendants No.60 to 66 are the legal heirs of Ganta Satyanarayana. Thereby, defendant No.61 to 64 16 and 66 are representing the estate of the deceased Ganta Satyanarayana, who is alleged joint pattadar of plaint schedule property.

18. The above said relationship between the legal representatives and the deceased defendants and the alleged joint pattadars is not specifically denied by contesting defendants. Thereby, the estates of the alleged joint patta holders of plaint schedule property as per the plaint averments is represented by the some of the legal representatives. According to plaintiff defendant No.51 also died.

Plaintiff pelads that Defendnat No.51 is joint pattadar. Admittedly, plaintiff has not taken any steps to implead the legal representatives of Defenadnt

No.51 to represent the estate of the deceased defendant No.51. However, this, being the suit filed by the plaintiff claiming for partition, mere non impeladment the Legal representatives of Defendants No.7,8,11, 18,21,23,25,45,46,51,53,55, 56,59 and 65 , the suit does not abate as a whole and it continues with the surviving parties. Thus, contesting defendants failed to prove their defence of non joinder of necessary parties and misjoinder of parties effecting adjudication of the suit. This point is answered in favour of the plaintiff.

19. POINTS NO.1 TO 3:-

Plaintiff claims that his grand father by name Koya Subbarayudu was in possession of Ac.36-00 of out of total extent of Ac.263.5 of Jamindari estate prior to its abolition, that joint patta was issued to his grand father and defendant No.51 and to the ancestors of Defendant No.7 to Defendant No.50 and Defendant No.53 to Defendant No.74. Plaintiff thereby claims that he along with defendant No.1 to 7, being surviving legal heirs of his ancestors

Koya Subbarayudu, are in joint and constructive possession of the plaint schedule property and that defendants are trying to receive compensation from the Government i.e., Defendant No.75 and thereby plaintiff filed present suit for partition of undivided Ac,.36-00 of land out of total extent of Ac.263.50 17 cents of plaint schedule property into and for allotment of 6/20th share to the plaintiff.

20. Defendants No.40 to 44, 50 to 53, 58 and 59 and contesting defendants and they denied plaintiffs right, title, possession and enjoyment and entitlement to any such extent in the plaint schedule property. This being the suit filed by the plaintiff claiming his right, possession and enjoyment and share in the plaint schedule property, burden lies on the plaintiff to prove his claim. In this regard, plaintiff is examined as P.W.1. P.W,1 testified that his paternal grand father by name Subba Rayudu was in possession of undivided

Ac.36-00 of plaint schedule property for which the Government issued ryotwari patta the names of his grand father and Defendant No.51 and the ancestors of Defendant No.7 to Defendant No.50 and Defendant No.53 to

Defendant No.74. In proof of the same, plaintiff has not filed any such ryotwari patta in the name of his paternal grand father Subba Rayudu. Plaintiff filed true copies 10(1) adangals issued by Village Karnam and Mandal

Revenue Officer, true Copy of FMB dt.9.3.1987 issued by MRO, true copy of

Settlement register copy issued by MRO, Office copy of Registered Notice dt.21.11.2005 and Acknowledgment dt.23.11.2005 issued by the then

Collector, West Godavari and its acknowledgment and they are marked as

Ex.A.1 to Ex.A.6 respectively.

21. On perusal Ex.A.1 10(1) Adangal copy in respect of R.S.No.536 to total extent of Ac.263.50 and the cist imposed was Rs.345.85 ps. Ex.A.1 disclose that the names of K.Subba Rayudu and the names of 13 others as persons under enjoyment of the said property. However the entries in Ex.A.1 not disclose the specific extent to each pattadar to substantiate plaintiff‟s plea that his paternal grand father has been in possession and enjoyment of Ac.36-00 out of the total extent Ac.263.50 in R.S.No.536. If really grand father of plaintiff was in enjoyment of his specific Ac.36-00 out of the total extent of plaint schedule property, Ex.A.1 might have disclose the same. Ex.A.2/ True 18 copy of 10(1) Adangal and Ex.A.4/ True copy of settlement registered disclose the name of Koya Subba Rayudu and the remaining names were shown with „xxxxxxx‟ mark. There is no entry in Ex.A.1 and Ex.A.2 about the specific extent of all the pattadars named in Ex.A.1. Thus, the documents filed by the plaintiff not substantiate his plea that ancestors of plaintiff and Defendant

No.1 to 6 were in possession and enjoyment of the Ac.36-00 of land in the plaint schedule property survey number. Ex.A.3/true copy of FMB disclose that in the several sub divisions the land in R.S.No.536 divided.

22. Plaintiff‟s contention is that the plaint schedule property to an extent of

Ac.263.50 cents is in joint possession and enjoyment of the legal heirs of all the joint pattadars. However, sub divisions of suit schedule survey number 536 falsifies plaintiff‟s plea of jointness of the plaint schedule survey number of the property. Admittedly plaintiff‟s grand father was not issued with any separate patta in respect of Ac.36-00. P.W.1 testified that his grand father died in the year 1959 and his father died in the year 1989. There is nothing on record that the ancestors of plaintiff approached the revenue authorities for issuance of patta in respect of their respective shares in the plaint schedule survey number of the property.

23. Furthermore, P.W.1 testified that prior to filing of the suit, Government has acquired some extent of land out of the plaint schedule property. P.W.1 failed to depose the extent of property acquired by the Government. P.W.1 admitted that he can not locate Ac.36-00 land physically on ground. In such a case, the plea of plaintiff that his grand father was in possession and enjoyment of the Ac.36-00 of land during his life time is not creditworthy.

Thus, Plaintiff has not filed the joint patta in respect of plaint schedule property to substantiate his plea of allotment of an extent of Ac.263.50 to his grand father Subba Rayudu and defendant No.51 and the ancestors of Defendant

No.7 to Defendant No.50 and Defendant No.53 to Defendant No.74.

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24. Furthermore, plaintiff also failed to prove his joint and constructive possession over Ac.36-00 along with defendants to seek for partition of the said property. Thereby plaintiff failed to prove that the plaint schedule property is the joint ancestral property of the plaintiff and defendants 1 to 74. Plaintiff also failed to prove that he is in joint and constructive possession of the plaint schedule property along with defendants No.1 to 74.

25. Furthermore, as the plaintiff failed to prove his joint and constructive possession over plaint schedule property, the trial court has direted the plaintiff to pay deficit court fee of Rs.6,426/- under setion 34(1) of APCF & SV

Act. As seen from the record the present appeal suit is admitted on payment of court fee of Rs.6,626/- paid by the plaintiff under section 34(1) r/w 49 of APCF & SV Act. As plaintiff failed to prove his joint and constrrucite possession over plaint schedule property, he is not entitled to seek partition of the plaint schedule property. Thereby, points No.1 to 3 are answered against the plaintiff.

26. POINT NO.4:-

Defendants No.52, 53,58 and 59 in their written statement took a plea that

Kondalarayudu and his son Venakta Ramana Rao were issued patta to an extent of Ac.28-00 cents and they have filed land ceiling declaration separately for an extent of Ac.14-00 each and sold Ac.9-50 cents each to Tontepu people and that the remaining Ac.9-00 is in the possession of their heirs and that the said Kondalarayudu and Venkata Ramana Rao perfected their title by adverse possession. On perusal the aforesaid defendants not filed any document to prove the actual ownership and date of their alleged possession become adverse to the real owner. Furthermore, they did not adduce any evidence even to prove their possession over any property out of the plaint schedule property.

Defendants No.52,58 not even entered into witness box before the trial court.

The learned counsel for plaintiff relied on the Judgment in Vidhyadhar Vs.

Mankikrao and Another 1992(2) Civil Court Cases 91 (SC), wherein their

Lordships held that “ If a party did not enter into the witness box to state his 20 own case on oath and to offer himself to be cross examined by the other side, it can be presumed that the case set up by him is not correct”. In the present case on hand , though defendants No.52,53,58 and 59 took the plea of adverse possession, failed to prove their defence either in oral or documentary evidence. Accordingly, Point No.4 is answered against the defendants.

27. POINT NO.6:-

From the above said discussion on points No.1 to 3, it is held that the trial court has properly assessed the pleadings and evidence on record and arrived at just conclusion by dismissed the suit. There is no need to interfere with the judgment and decree passed by the Principal Senior Civil Judge‟s Court,

Kovvur, in O.S.25/2006 dated 09.03.2016 is confirmed. Point No.5 is answered against the Appellant/Plaintiff.

28. POINT NO.7:- In the result, the appeal is dismissed with costs.

Consequently, the decree and judgment of learned Principal Senior Civil Judge,

Kovvur, in Original Suit No.25 of 2006 dated 9-03-2016 stands confirmed.

Dictated to the Stenographer G-I, transcribed by her, corrected and

pronounced by me in open court, this the 5 th day of February, 2025.

Sd/- Smt.M.Anuradha,

IX Additional District Judge, Kovvur

No oral or documentary evidence is adduced on either side.

Id/-Smt.M.A IX A.D.J/KVR

Copy to

The Learned Principal Senior Civil Judge, Kovvur.

1

CRL.APPEAL NO.350/2017, dt 28.04.2025 IX Addl. Dist., & Sessions Judge, Kovvur.

IN THE COURT OF THE IX ADDL. DISTRICT & SESSIONS JUDGE::

WEST GODAVARI, KOVVUR.

Present: Smt.M.Anuradha,

IX Additional District & Sessions Judge, Kovvur.

Monday, this the 28th day of April, 2025

CRL.APPEAL NO.350/2017

From what Court the appeal is : II Additional Judicial Magistrate of I Class, preferred Kovvur.

No. of the case in the Lower : C.C.No.673/2016 Court

No. of the Criminal Appeal : Criminal Appeal No.350/2017

Name and Description of the : Sri Gunji Prabhakar, S/o Narasimhulu, 30 Appellant years, R/o Vykuntapuram Village and

Mandal, Nellore District. (A.2)

Names and description of the The State, represented through its Station Respondent House Officer , Kovvur Rural P.S.

Rep. by Addl. Public Prosecutor, West

Godavari District, Kovvur.

Conviction and Sentence Dt:31.08.2017: The appellant/accused passed by the trial court and No.2 was convicted under Section 255(2) date of Code of Criminal Procedure for the offence punishable under sections 304-A of Indian Penal Code and he was sentenced to undergo rigorous imprisonment for a period of one year for and pay a fine of Rs.1,000/-, in default to suffer simple imprisonment for one month, that he shall undergo rigorous imprisonment for a period of 6 months for the offence punishable under sec.338 of I.P.C. Both the sentences shall run concurrently.

2

CRL.APPEAL NO.350/2017, dt 28.04.2025 IX Addl. Dist., & Sessions Judge, Kovvur. Whether reversed/ Reversed Confirmed/: Modified, if modified, the Modification.

Date of presentation 20-09-2017

Date of filing 20-09-2017

Date of notice issued by the 03-10-2017 Court to appear

Date of Bail bond issued ---

On which date the Appellant 18-04-2024 ordered to appear

Date of hearing 03-04-2025

Date of Judgment 28-04-2025

This appeal came up for hearing before me on 03.04.2025 in the presence of Sri K.S.Raghavulu and Sri G.Srinivas Rao, learned advocates

for appellant No.2 and of Sri K.Gopala Krishna, learned Additional Public

Prosecutor for respondent and the matter having stood over till this day for consideration, this Court delivered the following:

:: J U D G M E N T::

The accused No.2 in C.C.No.673/2016 on the file of II Additional

Judicial Magistrate of I Class, Kovvur (in short „trial court‟) preferred this

appeal challenging the impugned calendar and judgment, dated 31-08-2017, conviction and sentence passed there under sec.255(2) Cr.P.C for the offences punishable under Sections 304-A,338 of Indian Penal Code (in short „I.P.C‟), sentencing him to undergo rigorous Imprisonment for a period one year for the offence punishable under section 304-A I.P.C and pay a fine of

Rs.1,000/-, in default to suffer simple imprisonment for a period of 6 months for the offence punishable under section 338 I.P.C. Both the sentences shall run concurrently. The appellant was the accused No.2 and the respondent 3

CRL.APPEAL NO.350/2017, dt 28.04.2025 IX Addl. Dist., & Sessions Judge, Kovvur. was the complainant before the trial court and they will be hereinafter referred to as accused No.2 and complainant for convenience.

2. Originally Sub Inspector of Police, Kovvur Rural P.S. filed charge sheet against the accused No.1 and 2 in Cr.No.69/2016 for the offences punishable

Under sections 304-A and 338 of Indian Penal Code.

3. The brief facts of the prosecution case is as follows:

(a) It is averred that the deceased Pisini Satyam, the injured/P.W.2/

Tamada Ramana and P.Ws.3 to 7 are the residents of Venkatapuram Village of Laveru Mandal in Srikakulam District, that they all working as collies, that on the night of 10.07.2016 about 21-00 hours , the deceased and P.Ws.2 to 7 boarded the lorry bearing No.AP 27 TY 1159 which was located with iron sheet rolls, at Subhadrapalem high way to go to Vijayawada for coolie works, that P.W.6 sat in the cabin of the lorry and remaining of them boarded in the body of the lorry. While so, at 5 a.m on 11.07.2016, A.2 the driver of the lorry, stopped the lorry at Diwan Cheruvu centre and all of them had tea.

Then A2 handed over driving to A.1, who is the cleaner, that when the lorry reached Kapavaram village at 7.30 a.m A.1 applied sudden breaks . As a result, the ropes tied to the front iron roll were broken and the iron roll moved forward and touched the cabin of the lorry. The deceased , who sat behind the cabin, was completely crushed in between the cabin and the iron rolls.

He died on the spot. P.W.2 sustained grievous injuries.

(b) It is further averred that based on the report of the defacto complainant Shaik Abdul Najeem, VRO of Dommeru Village, a case in

Cr.No.69/2016 was registered for the offences punishable Under Sections 304-A and 338 of I.P.C. On 11.07.2016 inquest was conducted over the dead body of deceased in the presence of witnesses. Later dead body was sent for post mortem examination. The Station House Officer has collected the driving license of A2 and other vehicle records from the owner of the crime vehicle. The Motor Vehicle Inspector checked the crime vehicle and opined that the accident was not due to any mechanical defects of the crime 4

CRL.APPEAL NO.350/2017, dt 28.04.2025 IX Addl. Dist., & Sessions Judge, Kovvur. vehicle. P.W.9 the Medical Officer, who conducted autopsy over the dead body of the deceased died to asphyxia due to chest compression by heavy object. P.W.11, Medical Officer, who treated P.W.2 issued a wound certificate opining that the injuries sustained by P.W.2 are grievous in nature.

4. The trial court took cognizance of the case for the offences punishable under Sections 304-A and 338 I.P.C., secured the presence of the accused

No.1 and 2 by issuing summons, complied with Section 207 of the Code of

Criminal Procedure (in short „Cr.P.C.‟). The accused No.1 and 2 were examined under section 251 Criminal Procedure Code, explaining the substance of accusation made against them, they denied the same and pleaded that they have no defence.

5. During trial the prosecution got examined P.W.1 to P.W.12 and got marked

Ex.P1 to Ex.P8.

6. After closure of the prosecution side evidence, the accused No.2 was examined under section 313(1)(b) Criminal Procedure Code, explaining the incriminating evidence deposed against him was read over and explained to the accused No.2 in Telugu, for which he denied the incriminating material made against him. Further, he did not choose to adduce any defence evidence on their side.

7. Upon hearing the arguments of both sides, the trial court found the accused

No.1 and 2 guilty and convicted and sentence passed there under for the offence under Sec.255(2) Cr.P.C for the offences punishable under Sections 304-A,338 of Indian Penal Code (in short „I.P.C‟), sentencing A2 to undergo rigorous Imprisonment for a period one year for the offence punishable under section 304-A I.P.C and pay a fine of Rs.1,000/-, in default to suffer simple imprisonment for a period of 6 months for the offence punishable under section 338 I.P.C. Both the sentences shall run concurrently.

8. Aggrieved by the impugned calendar and judgment, conviction, and sentence passed there under, the accused No.2 preferred this appeal on 5

CRL.APPEAL NO.350/2017, dt 28.04.2025 IX Addl. Dist., & Sessions Judge, Kovvur. various grounds. The gist of the grounds of appeal is nothing but a

reiteration of the defence set up before the trial court and it is as follows:

1. that the Calendar and Judgment of the trial court is contrary to law, weight of evidence and probabilities of the case;

2. that the trial court ought to have disbelieve the evidence of P.Ws.1, to 4, 6 and 7 and 12 and acquit the accused;

3. that the trial court erred in finding that there is no necessity to conduct Test Identification Parade by hold that the witnesses gave the evidence within a period of one year of accident and there is no chance to lose memory and forget A.1 and A.2. One year time is a long time to identify them accused as driver of the accident vehicle;

4. that the trial court erred in finding that the witnesses travelling along with A.1 and A.2 for a considerable period, itself is sufficient to remember them. But the witnesses as per their evidence they travelled in the lorry in the night time and also they boarded on the body of the lorry. In such a case there is no chance to the witnesses to identify the accused as driver and cleaner of the vehicle;

5. that the trial court relied on the citation reported in AIR 2011 SC 1403, but the facts of the present case and facts in the citation are not one and same. Hence, the citation in AIR 2011 SC 1403 not applicable to the facts of this case;

6. that the trial court erred in finding that hitting at the speed breaker and resulting the above act can undoubtedly be said to be the rashness and negligence on the part of A.1 and breaking the ropes and the rolls moving forward cannot be said to be an act of God;

7. that the trial court failed to note that the speed breakers at the alleged place of offence are heavy speed breakers and there is no rash or negligent driving for breaking the ropes;

8. that the trial court erred in finding that A.2, he knows that A.1 is only cleaner and has no experience in driving. The entire prosecution witnesses 6

CRL.APPEAL NO.350/2017, dt 28.04.2025 IX Addl. Dist., & Sessions Judge, Kovvur. or prosecution story did not mention the cleaner of the lorry has no expertise in driving. There is no evidence regarding the A.1 whether he has driving license and knowing driving or not. It is duty of the prosecution to prove the case beyond all reasonable doubt;

9. that the trial court ought to have considered the evidence of P.W.7 in favour of A.2 as the P.W.7 that A.2 is driving the lorry at the relevant time contradicting to the evidence of other witnesses. But the trial court erred in finding that giving the wrong name would not help the defence. The trial court erred in finding that allowing the passengers in a transport vehicle is negligence. But the trial court failed to note that allowing passengers in transport vehicle is not an offence under IPC;

10. that the trial court ought to have considered the evidence of P.W.1 as he deposed that Ex.P.3/inquest report was written by the police. But as per the prosecution case, Ex.P.3/Inquest report was written by P.W.1. The trial court simply ignored such a major discrepancy in the evidence of P.W.1;

11. that the trial court simply ignored the glaring inconsistency and discrepancy regarding the starting of investigation. As per the printed FIR report was given to the police at 8.30 a.m. But P.W.2 deposed that within one hour of the accident, the police constable recorded his statement. So the investigation started without registering the FIR and which is against to the principles of Criminal jurisprudence;

12. that the trial court failed to consider the material omissions in the evidence of P.W.3, P.W.3 categorically stated that he has given the description of A1 and A2 to the police but there is no description of A.1 and

A.2 in the 161 Cr.P.C statement of P.W.3;

13. that the trial court ought to have give finding that the original 161

Cr.P.C statements were suppressed and present 161 Cr.P.C statements pressed into the service to suit the version of the prosecution. The witnesses deposed that their statements were recorded by the police 7

CRL.APPEAL NO.350/2017, dt 28.04.2025 IX Addl. Dist., & Sessions Judge, Kovvur. constable but as per the 161 Cr.P.C statements were recorded by S.I of

Police;

14. that the trial court failed to note the discrepancies in the evidence of

P.W.6 and P.W.7 and simply bypassed the discrepancies without mentioning in the Judgment;

15. that the trial court failed to note that the accident vehicle was examined by the MVI after 2 days of the accident. In such a case it is not possible to

MVI to note that whether there is any mechanical defeat in the accident vehicle at the relevant time;

16. that the trial court without considering the written arguments filed by the accused and mechanically convicted the accused;

9. Heard the learned counsel for the appellant/Accused No.2 and learned

Addl. Public Prosecutor for the respondent. The learned counsel for the petitioner/A.2 submit that the trial court fell in serious error in convicting the petitioner/A.2 for the offences under section 304-A and 338 of I.P.C., that the prosecution miserably failed to establish the essential ingredients of section 304-A and 338 of I.P.C against the petitioner/A.2. The learned counsel for the appellant/A.2 further contended that prosecution failed to give any explanation for shifting of the vehicle from the scene of offence to the police station before inspection of the vehicle by the Motor Vehicle Inspector and thereby the Motor Vehicle Inspector report created doubt in respect of mechanical defects. The learned counsel for the appellant/A.2 further contended that there is no scope of identifying the driver of the crime vehicle as none of the prosecution witnesses have prior acquaintance with the driver, that the investigation officer has not conducted test identification parade and thereby prosecution failed to prove the identity of the driver of the crime vehicle.

The learned counsel further contended that the evidence of P.Ws.2 to 6 is coupled with inconsistency in respect of the time and place where they stopped the crime vehicle during the early hours on the date of the accident 8

CRL.APPEAL NO.350/2017, dt 28.04.2025 IX Addl. Dist., & Sessions Judge, Kovvur. for having tea. He further contended that though examined the owner of the vehicle failed to produce any document in respect of employment of A.1 and

A.2 to the crime vehicle, that the investigation officer has not seized the trip sheet. The learned counsel further contended that prosecution failed to establish that A.1 has no driving license and thereby A.2 is not liable for the offence punishable under sections 304-A and 338 of I.P.C. The learned counsel further contended that the trial court failed to appreciate the evidence of prosecution witnesses, that the punch witnesses are planted witnesses and thereby petitioner/A.2 is entitled for benefit of doubt as such he is required to be acquitted for the offences levelled against him and ultimately prayed to allow the appeal.

10. Per contra, the learned Additional Public Prosecutor for respondent supported the impugned Judgment and submitted that the prosecution proved that the petitioner/A.2 allowed the A.1 who was the cleaner of the crime vehicle to drive the crime vehicle resulting the accident, that there are no mechanical defects in the offending vehicle, that all the eye witnesses identified A.1 and A.2 as drivers of the crime vehicle which clearly points towards the guilt of the petitioner. The learned Additional Public Prosecutor further contended that the trial court has rightly appreciated the evidence of record and convicted both the accused for the offences punishable under sections 304-A and 338 of I.P.C. , that there is nothing to interfere with the impugned judgment of the trial court and prayer to dismiss the criminal appeal.

11. In view of the above rival contentions the points that arise for determination in this criminal appeal is:

1. Whether the prosecution proved the guilt of accused No.2 for

the offences punishable under Sections 304-A and 338 of I.P.C

beyond all reasonable doubt?

2. Whether the impugned Judgment of conviction and sentence

passed by the trial court against Accused No.2 is sustainable in

facts and law?

9

CRL.APPEAL NO.350/2017, dt 28.04.2025 IX Addl. Dist., & Sessions Judge, Kovvur.

12. Point No.1 :

Before proceedings for discussion of evidence is apt to refer the

essential ingredients of Section 304-A of I.P.C.

Section 304-A of the Indian Penal Code (IPC) addresses the offence of causing death by negligence. To establish culpability under this section, the prosecution must prove: (1) the death of a person; (2) the death was caused by the accused's actions or omissions; and (3) those actions were rash or negligent, but not amounting to culpable homicide

13. In the instant case, Appellant/A.2 was convicted for the offences punishable under sections 304-A and 338 of I.P.C. The evidence of P.Ws.2 to 4 , 6 and 7 , the alleged eye witnesses, is that on 10.07.2016 at about 9 p.m they all boarded crime vehicle lorry bearing No. AP 27 TY 1159 at

Subhadrapalem Junction to go to Vijayawada that P.W.6 sat besides the driver in the cabin and P.Ws.2 to 4 and P.W.7 boarded on the back side of the lorry where two big iron rolls were loaded which were tied with ropes.

Further their testimony reveals that they have stationed the lorry at the outskirts of Rajahmundry Town on 11.07.2016 in between 5.30 A.M and again had tea . Their evidence further disclose that till Rajahmundry town A.2 drove the said lorry and from there onwards A.2 allowed cleaner of the lorry i.e., A.1 to drove the lorry.

14. The evidence of P.Ws.2 to 4, 6 and 7 disclose that A.1 drove the lorry in a rash and negligent manner and applied sudden break near Kapavaram high way road, as a result the ropes tied to the iron rolls located in the said lorry were broke open and the iron rolls move forward and dashed the cabin of the lorry. As a result, the deceased , who sat behind the cabin, was completely crushed between the cabin and the iron rolls and died on the spot and P.W.2 sustained grievous injuries.

15. P.W.1 is the Village Revenue Officer reported the incident under

Ex.P.1/report to the police. Admittedly, P.W.1 is not the eye witness to the 10

CRL.APPEAL NO.350/2017, dt 28.04.2025 IX Addl. Dist., & Sessions Judge, Kovvur. accident occurred in this case. Though P.W.1 testified the names of A.1 and

A.2 as drivers of the crime vehicle is not the eye witness. Furthermore,

P.W.1 admittedly not stated the name of A.1 in Ex.P.1 report, so also not stated the special features of A.1 and A.2 in Ex.P.1 report. P.W.1 admitted that there was no scope to drive any vehicle in a speed manner as there was a turning towards Kovvur road at a distance of 200 yards from the panchayat office i.e., the scene of offence. Admittedly P.W.2 ,4 and 7 travelled on back side of the cabin and they have no opportunity to see the driver or cleaner of the crime vehicle. Admittedly investigation officer has not conducted Test Identification Parade in this case of identification of the driver of the crime vehicle. In the absence of Test Identification Parade the evidence of P.W.2 to 4, 6 and 7 for the first time in the court hall is weak piece of evidence for conviction under sec.304-A of I.P.C. The prosecution must establish the identity of the accused as the driver of the offending vehicle beyond reasonable doubt. This principle is crucial as it directly impacts the rash and negligent driving including death as held in the

Narendra Singh Vs. State of Punjab and Hariyana. Their Lordships further held that the prosecution must provide clear and consistent evidence to prove the identity of accused. Corroborative evidence and potential test identification parade (trip) to substantial claims regarding the identity of the driver as held in Anil Kumar Vs. State –Delhi Vetrivelan Vs. State-

Madras. Their Lordships held that Courts have consistently held that if the identity of the accused as the driver is not established , the conviction cannot be sustained. In cases where the prosecution failed to provide sufficient evidence, such as eye witness accounts or documentation proving ownership of the vehicle, the accused was acquitted .

16. In the Judgment in Asish Roy Vs. State of Tripura, their Lordships held that importance of eye witness testimony, Eye witness accounts play a critical role in establishing the identity of the driver. Courts have 11

CRL.APPEAL NO.350/2017, dt 28.04.2025 IX Addl. Dist., & Sessions Judge, Kovvur. emphasized that discrepancies in witness statements can undermine he prosecution‟s case, leaving to acquittal if the identity remains in doubt.

17. In the present case on hand, even otherwise according to P.W.2,4,6 and 7 A.2 not drove the crime vehicle at the time of the accident, it was A.1, who drove the said vehicle. As per the prosecution version A.1 is cleaner of the lorry and thereby A.2, who was the regular driver of the said lorry allowed

A.1 and thereby A.2 also liable for negligence. In this regard, prosecution not established that A.1 was not having any driving license that A.1 was cleaner of the said vehicle.

18. The owner of the crime vehicle was examined as P.W.10 he simply testified that A.1 is driver and A.2 is cleaner of this vehicle P.W.10 not produced any document in proof of his oral testimony. Investigation officer also not seized trip sheet of the crime vehicle to ascertain that A.2 was engaged regular driver of the crime vehicle for that particular trip.

19. As per the prosecution case P.W.6 is only the passenger travelled in the cabin of the crime vehicle. Identification of A.1 is not brought in the testimony of P.w.6. P.W.6 testified A.2 gave instructions to A.1 to drive the crime vehicle slowly but it is an omission in his previous 161 Cr.P.C statement. Even as per the evidence of P.W.6, A.1 drove the crime vehicle and he applied sudden break due to which the accident occurred and A.2 not drove the crime vehicle at the time of accident.

20. P.W.5 is the elder son of the deceased, by examining this witness the prosecution at best elicited that the deceased died after knowing about the accident he rushed to the scene of offence and found the dead body of the scene of offence and found the dead body of his deceased father. Admittedly by the time P.W.5 reached the scene of offence neither driver nor the cleaner of the crime vehicle were present there.

12

CRL.APPEAL NO.350/2017, dt 28.04.2025 IX Addl. Dist., & Sessions Judge, Kovvur.

21. P.W.2 is one of the injured person. The evidence of P.W.2 and the evidence of P.W.11, Medical Officer and Ex.P.6/ Wound Certificate disclose that P.W.2 sustained grievous injuries in this accident. The injuries i.e., swelling and tenderness of left hip and X-ray shows to acetabulam left, injury to pelvis. The evidence of P.W.9 and Ex.P.3 report proves that the deceased died on 11.07.2016 due to chest compressed by heavy object.

Thus, the prosecution at best proved the death of the deceased and grievous injuries caused to P.W.2 as a result of the accident took place on 11.07.2016 at the scene of offence situated near Kapavaram high way road.

22. The evidence of P.W.8/Assistant Motor Vehicle Inspector, and

Ex.P.4/M.V.I report disclose that on 13.07.2016 P.W.8 inspected the crime vehicle bearing No.AP 27 TY 1159 and found that there are no mechanical defects to the said crime vehicle . P.W.12 the investigation officer testifies that after observation of the scene of offence he has shifted to Kovvur

Rural Police Station. Admittedly two days after the accident P.W.8 has inspected the crime vehicle. As rightly contended by the learned counsel that it is not possible to the M.V.I to note down whether there are any mechanical defects to the crime vehicle at the relevant time, as he inspected the same two days after the accident when the vehicle was shifted to

Kovvur Rural Police Station.

23. Furthermore, the evidence of P.W.7 that it was A.2 not drove the crime vehicle at the relevant time is contradicting to the evidence of other prosecution witnesses. The rough sketch not disclose any such speed breaker at the scene of offence to believe the prosecution case that the driver of the crime vehicle applied sudden break at speed breakers resulting the accident. P.W.1 testified that Ex.P.3/Inquest report was written by the police. However, as per the prosecution case it was written by P.W.1.

The investigation officer has not explained the said discrepancy brought in the evidence of P.W.1. It creates doubt about the manner of the investigation 13

CRL.APPEAL NO.350/2017, dt 28.04.2025 IX Addl. Dist., & Sessions Judge, Kovvur. conducted by the investigation officer. Furthermore, as per the printed FIR report was given to the police at about 8.30 p.m whereas P.W.2 testified that within one hour of the accident police constable recorded his statement.

It appears that before registration of the FIR the investigation was commenced which is against the principles of Criminal Jurispuredence.

Furthermore, though P.W.3 testified that he gave descriptive particulars of

A.1 and A.2 to the police admittedly, none of the witness gave descriptive particulars of A.1 and A.2 in their previous 161 Cr.P.C statements.

24. The nature and scope of Section 304-A of I.P.C was discussed in detail by the Hon‟ble Apex Court in the Judgment in Naresh Giri Vs. State of M.P, their Lordships held as follows:

“Section 304-A I.P.C carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder under Section 300. If a person willfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person‟s death is culpable homicide. When the intent or knowledge is the direct motivating force of the act, Section 304-A has to make room for the graver and more serious charge of culpable homicide. The provision of this section is not limited to rash or negligent driving. Any rash or negligent act whereby death of any person is caused becomes punishable. Two elements either of which or both of which may be proved to establish the guilt of an accused are rashness/negligence; a person may cause death by a rash or negligent act which may have nothing to do with driving at all. Negligence and rashness to be punishable in terms of Section 304-A must be attributable to a state of mind wherein the criminality arises because of no error in judgment but of a 14

CRL.APPEAL NO.350/2017, dt 28.04.2025 IX Addl. Dist., & Sessions Judge, Kovvur. deliberation in the mind risking the crime as well as the life of the person who may be lost his life as a result of the crime.

25. Section 304-A I.P.C disclose that criminality may be that apart from any mens rea, there may be no motive or intention still a person may venture or practice such rashness or negligence which may cause the death of other.

The death so caused is not the determining factor. What constitutes negligence has been analyzed in Halsbury‟s Laws of England as follows:

“General Principles of the law of negligence:- Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the surrounding circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury. The duty of care is owed only to those persons who are in the area of foreseeable danger, the fact that the act of the defendant violated his duty of care to a third person does not enable the plaintiff who is also injured by the same act to claim unless he is also within the area of foreseeable danger. The same act or omission may accordingly in some circumstances involve liability as being negligent although in other circumstances it will not do so. The material considerations are the absence of care which is on the part of the defendant owed to the plaintiff in the circumstances of the case and damage suffered by the plaintiff together with a demonstrable relation of cause and effect between the two”.

15

CRL.APPEAL NO.350/2017, dt 28.04.2025 IX Addl. Dist., & Sessions Judge, Kovvur.

26. In the present case on hand, from the evidence on record prosecution at best proved the death of the deceased and the grievous injuries of

P.W.2 while they were travelling in the crime vehicle lorry bearing No. AP 27

TY 1159 as a result of the accident. However, none of the prosecution witnesses testified that A.2 was drove the crime vehicle in a rash and negligent manner resulting the accident in this case. In the absence of proof of A.2 as driver of the crime vehicle and in the absence of proof that A.2 alleged A.1 , who was cleaner to drove crime vehicle without any valid license, liability of A.2 does not arise for the offences under section 304-A and 338 of I.P.C.

27. As discussed supra, Investigation Officer not conducted Test

Identification of the accused persons through eye witnesses. In the Judgment in G.Srinivasulu Vs. The State of A.P decided on 21st March, 2023, their

Lordships held that identification of an accused for the first time in the Court by a witness should not be relied upon, the same being from its very nature inherently of a weak character, unless it is corroborated by 9 his previous identification in the Test Identification Parade. Test Identification Parade is a check value to the evidence of identification in Court of an accused by a witness. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapture what a witness had seen earlier, strength/trustworthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in the Court. If a witness identifies the accused in Court for the first time, a probative value of such any corroborated evidence becomes so much minimal so that it becomes, as a rule of prudence but not as a rule of law. Unsafe to rely on such a piece of evidence.”

28. In the present case on had, the subject accident took place in the year 2016 and the prosecution witnesses identified the petitioner/accused for the 16

CRL.APPEAL NO.350/2017, dt 28.04.2025 IX Addl. Dist., & Sessions Judge, Kovvur. first time in the Court in the year 2017. Belated identification of an accused in Court for the first time after more than one year from the date of incident should not form the basis of conviction, especially when the same is not corroborated by either previous statement or before the police or any other evidence. Further, in the instance case, there is no mention of the description particulars accused person in the FIR registered in this case. The prosecution witnesses not furnished any explanation for non disclosure of the description particulars of the petitioner/accused before the police by the witnesses and the belated identification in Court for the first time after more than one year should not be relied upon. More so when rash and negligent act of A.2 is not corroborated by any other evidence on record.

29. Thus, from the afore said evidence prosecution failed to establish that

A.2 allowed A.1 to drove the crime vehicle and thereafter A.1 to drove the crime vehicle resulting the death of the deceased Pisini Satyam, who sat in the back side of the lorry and resulting grievous injuries to P.W.2. Thus, prosecution failed to prove the rash or negligent act of A.2 for the death of the deceased and for the injuries caused to P.W.2. Thereby A.2 is not liable for the offences charged against him and he is to be acquitted. Thereby the conviction of the appellant/Accused No.2 for the offences punishable under

Sections 304-A and 338 IPC are not sustainable. Point No.1 is answered in favour of the appellant/Accused No.2.

30. Point No. 2 : For the reasons stated supra, this court is of the opinion that the conviction and sentence of the Appellant/Accused No.2 for the offences punishable under Sections 304-A and 338 Indian Penal Code by the Trial

Court needs interference as it is not justified with sufficient reasons and it has to be set aside. Accordingly this point is answered in favour of the accused

No.2 and against the prosecution.

31. In the result, the Criminal Appeal is allowed and conviction and sentence dated 31.08.2017 passed in C.C.No.673/2016 by the II Additional 17

CRL.APPEAL NO.350/2017, dt 28.04.2025 IX Addl. Dist., & Sessions Judge, Kovvur.

Judicial Magistrate of I Class, Kovvur against A2 for the offences under

Sections 304-A and 338 of IPC is set-aside. Consequently the

Appellant/Accused No.2 is found not guilty for the offences punishable under

Sections 304-A and 338 of Indian Penal Code. A2 is acquitted under Section 255(1) Cr.P.C. for the offences punishable under Sections 304-A and 338 of I.P.C. Fine amount of Rs.1,000/- paid by the Appellant/Accused No.2 shall be refunded after appeal time is over. Bail bonds of the accused No. 2 and sureties shall stands cancelled after expiry of appeal time.

Dictated to the Stenographer Grade –I, transcribed by her, corrected

and pronounced by me in open court, this the 28 th day of April, 2025.

Sd/- Smt.M.Anuradha,

IX Additional District & Sessions Judge, Kovvur.

No oral or documentary evidence is adduced on either side.

Id/- Smt.M.A

IX AD&SJ,

Kovvur

Copy to:

1. The learned Registrar (Judicial), High Court of A.P., Amaravathi.

2. The learned II Addl. Judicial Magistrate of I Class, Kovvur.

1

Criminal Appeal No.13/2020 IX Addl. District & Sessions Judge, KVR

IN THE COURT OF THE IX ADDITIONAL DISTRICT & SESSIONS JUDGE::

WEST GODAVARI, KOVVUR.

Present: Smt. M.Anuradha,

IX Additional District & Sessions Judge, Kovvur.

Friday, this the 7th day of February, 2025

CRL.APPEAL NO.13/2020

From what Court the appeal is : Ist Additional Junior Civil Judge-Cum- I preferred Additional Judicial Magistrate of I Class, Kovvur.

No. of the case in the Lower : C.C.No.159/2017 Court

No. of the Criminal Appeal : Criminal Appeal No.13/2020

Name and Description of the : 1.Sri Mallipudi Prasanth Kumar, S/o Appellant Rajaratnam, 24 years, Hindu, Male, R/o Tyajampudi Village, Devarapalli Mandal, West Godavari District. ( Case against A.1 is abated on 13.10.2022 as he died)

2.Sri Mallipudi PUshpa, W/o Rajaratnam, 44 years, Hindu, Female, R/o Tyajampudi Village, Devarapalli Mandal, West Godavari District.

Names and description of the The State, represented through its Sub Respondent Inspector of Police, Devarapalli P.S. Rep. by Addl. Public Prosecutor, West Godavari District, Kovvur.

2

Criminal Appeal No.13/2020 IX Addl. District & Sessions Judge, KVR

Conviction and Sentence The appellants/accused No.1 and 2 were passed by the trial court and convicted under Section 248(2) of Code of date Criminal Procedure for the offence under section 498A of Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of Two (2) years each and to pay fine of Rs.5,000/- ( Rupees Five thousand only) each. In default of payment of fine, they shall under go simple imprisonment for 1 ( one) month each.

Whether reversed/ Reversed. Confirmed/: Modified, if modified, the Modification.

Date of presentation 17-01-2020

Date of filing 23-01-2020

Date of notice issued by the 23-01-2020 Court to appear

Date of Bail bond issued ---

On which date the Appellant 05-03-2020 ordered to appear

Date of hearing 20-01-2025

Date of Judgment 07-02-2025

This appeal came up for hearing before me on 20.01.2025 in the presence of Sri K.S.Raghavulu, learned Advocate for Appellants, later the case against appellant No.1 was abated as he died, and of Sri K.Gopala Krishna, learned 3

Criminal Appeal No.13/2020 IX Addl. District & Sessions Judge, KVR

Additional Public Prosecutor for respondent and the matter having stood over till

this day for consideration, this Court delivered the following:

:: J U D G M E N T::

Accused No.2 in C.C.No.159/2017 on the file of I Additional Junior Civil

Judge-cum-Judicial Magistrate of I Class, Kovvur (in short „trial court‟) preferred

this appeal challenging the impugned calendar and judgment, dated 13-01-2020, conviction and sentence passed there under for the offence punishable under

Section 498-A of Indian Penal Code (in short „I.P.C‟), sentencing them to undergo rigorous Imprisonment for a period of 2 (two) years each and to pay fine of

Rs.5,000/- ( Rupees Five thousand only) each and in default of payment of fine to under go simple imprisonment for 1 ( one) month each. The appellants were the accused No.1 and 2 and the Respondent was the complainant before the trial court and they will be hereinafter referred to as accused and complainant for convenience.

2. Originally Sub Inspector of Police, Devarapalli P.S. filed charge sheet against the accused No.1 and 2 in Cr.No.41/2017 for the offence punishable under

Section 498-A of Indian Penal Code.

3. The brief facts of the prosecution case is as follows:

It is averred that out of the love affair between L.W.1/Mallipudi Lizy

Kumari and A.1 they got married in Marymatha temple by exchanging of garlands without informing their parents, relatives etc., that after knowing the same the parents of A.1 i.e., A.2 and her husband refused to accept the said marriage and also refused to stay with them, thus, L.W.1/Mallipudi Lizy Kumari and A.1 stayed at Gowripatnam in her parents home and also stayed for two months at

Vijayawada. It is averred that L.W.1/Lizy Kumari conceived pregnancy, but it was aborted due to the tablets given by A.1. It is further averred that A.1 at the 4

Criminal Appeal No.13/2020 IX Addl. District & Sessions Judge, KVR active abatement of A.2 and his father denied the said marriage even in the presence of the elders, that A.1 and A.2 demanded her to bring huge amount of dowry to accept their relationship, that due to their conduct L.W1/ Mallipudi Lizy

Kumari made an attempt to commit suicide by consuming pesticide and later shifted to hospital by her parents and other neighbours, there her statement was recorded by the police and basing on it a case was registered in CrNo.41/2017 for the offence under section 498-A of I.P.C. On completion of investigation, the

S.H.O of Devarapalli P.S filed charge sheet against both the accused.

4. The trial court took cognizance of the case for the offence punishable under

Section 498-A of I.P.C., secured the presence of both the accused by issuing summons, complied with Section 207 of the Code of Criminal Procedure (in short „Cr.P.C.‟). The accused was examined under section 239 Criminal Procedure Code, explaining the substance of accusation made against them, they denied the same.

Charge for the offence punishable under Section 498-A of I.P.C is framed against the accused, read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried.

5. During trial the prosecution got examined P.W.1 to P.W.12 and got marked

Ex.P1 to Ex.P19.

6. After closure of the prosecution side evidence, the accused were examined under section 313 Criminal Procedure Code, explaining the incriminating evidence deposed against them were read over and explained to the accused in Telugu, for which they denied the incriminating material made against them. Further, they did not choose to adduce any defence evidence. Ex.D.1 is marked on their side during evidence of P.W.4.

7. Upon hearing the arguments of both sides, the trial court found both the accused guilty for the offence punishable under section 498-A of I.P.C and sentenced to 5

Criminal Appeal No.13/2020 IX Addl. District & Sessions Judge, KVR undergo rigorous imprisonment for a period of Two (2) years each and to pay fine of Rs.5,000/- ( Rupees Five thousand only) each, in default of payment of fine, to under go simple imprisonment for 1 ( one) month each.

8. Aggrieved by the impugned calendar and judgment, conviction, and sentence passed there under, the accused preferred this appeal on various grounds. The gist

of the grounds of appeal is nothing but a reiteration of the defence set up

before the trial court and it is as follows:

1. that the judgment passed by the trial court is contrary to law, weight of evidence and probabilities of the case;

2. that the trial court failed to appreciate the evidence on record and the legal position placed before the Court;

3. that the trial court erred in finding in para 29 of the judgment that it determines that the proved facts shows that P.W.1 and A.1 married and it is considered as love marriage and out of said marriage both lives together and

P.W.1 conceived and suffered miscarriage;

4. that the trial court lost its sight on the principle that the ignorance of law has no excuse;

5. that the trial court erred in finding that due to the love and affection, marriage done and there is no possibility of observing the performance of rituals of a particular religion and at that moment infatuation plays a significant role in alleged marriage;

6. that the trial court erred in finding that P.W.1 and A.1 not expected to be performed designedly by performing all rituals and practices required for a particular religion that will be the case many women who performs marriage without following such religions rites and customs and practices will be at cross 6

Criminal Appeal No.13/2020 IX Addl. District & Sessions Judge, KVR and either of party may take chance of such lacunaes and escape from clutches of court so that it is not the intention of law;

7. that the trial court ignored the law intends that wife means legally wedded wife. The trial court further ignored that if the marriage is not performed by observing rituals and other practices in the particular religion to be performed for a valid marriage;

8. that the trial court ought to have held that there are no rituals or formalities observed in the alleged marriage between P.W.1 and A.1; viii. that the evidence of P.W.12 clearly shows that there is no marriage between

P.W.1 and A.1 as alleged by P.W.1. P.W.12 is the important witness to prove the allegation of P.W.1 that the marriage between herself and A.1 was performed according to the rituals of Christian religion;

9. that the trial court ought to have held that there is no marriage between P.W.1 and A.1 by considering the evidence of P.W.12 and the contracting evidence of

P.W.1 and the evidence of P.W.12 regarding the date of marriage, time of marriage and the persons who are attended for the alleged marriage. So, the contradicting evidence of P.W.1 and P.W.12 regarding the marriage between P.W.1 and A.1 proved false;

10. that the trial court deviated from the established principles on criminal jurisprudence and the prosecution has to prove the case beyond all reasonable doubt;

11. that the trial court conveniently discarded the citation reported in Anwar P.V

Vs. P.KL Basheer;

12. that the trial court ought to have considered that on the face of it that Ex.P.1 and Ex.P.18 photographs clearly shows that they are created and morphed for the purpose of the case; 7

Criminal Appeal No.13/2020 IX Addl. District & Sessions Judge, KVR

13. that the trial court ought to have acquitted the 2nd accused. In the entire judgment the trial court did not give any reason to convict 2nd accused;

14. that the trial court failed to note that absolutely there is no iota of evidence against the 2nd accused and the trial court erroneously convicted the 2nd accused without any legal evidence against her;

15. that the trial court ought to have considered the material omissions in the evidence of prosecution witnesses and those omissions were confirmed by the investigation officer;

16. that the trial court failed to note that the statements of prosecution witnesses under 161 Cr.P.C are full of omissions and which are fully developed for the purpose to case their version;

17. that the trial court ought to have held that Ex.P.16 FIR and Ex.P.14 report contains no material particulars in those documents there is accepted principle that FIR is not encyclopedia, but the material aspects to be mentioned in Ex.P.14 report and Ex.P.16 printed FIR.

18. that the trial court ought to have held that the delay in sending report to the concern magistrate is fatal to the prosecution, as per the case of prosecution, the

P.W.1 attempt to commit suicide and in such a case there is every chance for consultations and deliberations to foist a false case against the accused;

19. that the trial court failed to note that P.W.1 handed over all the exhibits to the police during investigation but those exhibits were marked at the time of her evidence, that itself proves that they are fabricated documents to suit their version;

20. that the trial court erred in finding that P.W.6 evidence also shows that

P.W.1 and A.1 married in 2017. But as per the prosecution case the alleged marriage between P.W.1 and A.1 is in the year 2015. Then how the evidence of

P.W.6 is believable and trustworthy; 8

Criminal Appeal No.13/2020 IX Addl. District & Sessions Judge, KVR

21. that the trial court failed to note that the evidence of P.Ws.1 to 6 are contradicting each other and except the alleged relationship on same lines, they failed to place the events on same lines and so also they are interested witnesses. IN such a case the trial court ought to have disbelieved the evidence of the witnesses;

22. that the trial court failed to note that the non examination of material witness is fatal to the prosecution. In the present case the prosecution failed to examine the doctors who issued Ex.P.7,P.9 and P.10;

23. that the trial court failed to observe that if there is any Gynecology problem to the women, even without pregnancy D &C method will be conducted;

24. that the trial court instead of believing the evidence of P.W.9 erroneously came to a conclusion by settled principle of law that ocular evidence prevails over medical evidence when the said ocular evidence remains static and consistent by reporting Yogesh Kumar‟s case and by relying on Ex.P.11 suicide note;

25. that the trial court Judgment entirely depending on the assumptions and presumptions and without any legal evidence and basis;

Therefore, for the above and other grounds which may be urged at the time of hearing the appeal, the Appellants/accused prays the Court to set aside the conviction passed by the learned I Additional Junior Civil Judge-cum- Judicial

Magistrate of I Class, Kovvur dt.13-01-2020 in C.C.159/2017.

9. Heard both sides. The learned counsel for the Appellant/accused has contended that the prosecution failed to prove that P.W.1 is legally wedded wife of

A.1 , that the evidence of P.W.12 clearly shows that there is no marriage between

P.W.1 and A.1 , that Ex.P.1 and Ex.P.8 are not admissible documents in view of the Judgment reported in Anwar PV Vs. P.K Basheer which is delivered by three

Judges Bench and having binding effect. The learned Counsel for accused further

contended that there is absolutely no evidence against A.2 to constitute the alleged 9

Criminal Appeal No.13/2020 IX Addl. District & Sessions Judge, KVR offence, that the offence under section 498-A I.P.C does not attract against accused since prosecution failed to establish the marriage between P.W.1 and A.1. The learned counsel for accused further relied upon the Judgment reported in Shiva

Charan Lal Makur Vs. State of Madhya Pradesh delivered by three Judges Bench, where in their Lordship held that there should be valid marriage between the accused and alleged wife to attract the ingredients under section 498-A of I.P.C.

The learned counsel fir accused further contended the evidence of P.W.1 to 6 coupled with material omissions and contradictions , thereby the prosecution failed to prove the alleged offence against the accused. Thus the learned counsel for accused contended that the trial court has erroneously convicted the accused and prays to acquit the accused by allowing the appeal.

10. On the other hand, the learned Additional Public Prosecutor has contended that the oral testimonies of the P.W.1 to P.W.12 and the documents marked under

Ex.P.1 to Ex.P.19 established that A.1 and A.2 subjected to P.W.1 to matrimonial cruelty, that the trial court has rightly assessed the evidence on record and convicted the accused, that there is no need to interfere with the Judgment of the trial court. Thereby the learned Additional Public Prosecutor prays to dismiss the appeal by upholding the conviction against the accused.

11. On hearing both the sides and upon perusal of the material placed on record including the Judgment of the trial court, the points that would arose for consideration are:

1. Whether prosecution establish relationship between P.W.1 by name M.Lizy Kumari and A.2?

2. Whether the prosecution proved the guilt of the accused No.2 for the

offence punishable Under Sec.498-A of I.P.C. beyond all reasonable

doubt?

10

Criminal Appeal No.13/2020 IX Addl. District & Sessions Judge, KVR

3.Whether the impugned Judgment of conviction and sentence passed by the trial court are sustainable in facts and law?

12. Point No.1 :

Though the trial court has convicted and sentenced, Accused No.1 for the offence under section 498-A of I.P.C, the appeal suit is abated against Accused

No.1 as prosecution reported that Accused No.1 died on 15.06.2022. Now it has to see whether the conviction and sentence of Accused No.2 for the offence punishable Under Section 498-A of I.P.C is sustainable or not.

13. Section 498-A of I.P.C speaks about the subjection of a woman to cruelty by her husband and or by his relatives. The Hon‟ble Supreme Court in U.Surekha Vs.

State 2009(2009) 6 SCC 757 explained the ingredients of Section 498-A of I.P.C as under:

1.The woman must be married

2.She must be subjected to cruelty or harassment.

3.Such cruelty or harassment must have been shown either by husband of the woman or by the relative of her husband.

14. Two Judges Bench of Hon‟ble Apex Court in Reema Agrwal Vs Anupam 2004(3) SCC 199 while construing the expression husband for the offence under section 498-A of I.P.C opined that the word should not be given a restricted meaning. Their Lordships further held that it would be appropriate to constitute the expression “husband” to cover person enters into a marital relationship and under the cover of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerced her in any manner or for any of the purposes enumerated in the relevant provisions Sections 304-B, 498-A of I.P.C whatever the legitimacy of the marriage itself for the limited purposes of Sections 498-A and 304-B of I.P.C.

11

Criminal Appeal No.13/2020 IX Addl. District & Sessions Judge, KVR

15. Three Judge Bench of Hon’ble Apex Court in Shiva Charan Lal Verma and

Another Vs. State of M.P 2002(2) Crimes 177 SC while interpreting section 498-

A of I.P.C, where the prosecution alleged that during the life of the first wife ( namely Kalindi), appellant therein married for the second time, but after the marriage both the first wife and husband torched the second wife (namely Mohini), as a result thereof, second wife ultimately committed suicide by burning herself.

Their Lordship set aside the conviction under section 498-A of I.P.C as the alleged marriage of accused with the deceased Mohini (second wife) during the subsistence of valid marriage with Kalindi ( first wife) is null and void.

16. Therefore, the decision in Siva Charan Lal Verma ( supra), being three

Judges Bench decision, will clearly take precedence over the decision in Reema

Agarwal (Supra) of two Judges Bench.

17. In view of the above said legal position, in the present case on hand, to constitute the offence under section 498-A of I.P.C against the mother of A.1, prosecution has to prove the marital relationship between P.W.1 and deceased A.1.

Before the trial court accused denied the marital relationship between P.W.1 and

A.1. The defacto complainant is examined as P.W.1. The evidence of defacto complainant and Ex.P.16/Statement of P.W.1 disclose that P.W.1 and A.1 performed love marriage on 06.05.2005. Ex.P.16 is silent about the place at which the said marriage was performed. For the first time in her evidence P.W.1 testified that her marriage was performed in Mari Matha Chruch , Gowripatnam by exchanging garlands as per Christian Rites and Customs. In this regard, P.W.1 relied upon Ex.P.1/C.D with marriage Photograph. The learned Defence Counsel objected Ex.P.1 for want of producing Certificate which is mandate under section 65(B) of Indian Evidence Act. In this regard, the learned defence counsel relied upon the Principles laid down by the Hon‟ble Apex Court in Three Judges Bench, 12

Criminal Appeal No.13/2020 IX Addl. District & Sessions Judge, KVR in the Judgment in Anwar P.V Vs. B.K Basheer. In the Judgment in Anwar P.V case, three Judges Bench of Hon‟ble Apex Court ruled that the general provisions of Section 63 and 65 would have no application in the case of secondary evidence of electronic evidence, as it is only governed by section 65(A)and 65(B) which are special provisions. Notably, their Lordships went on to observe that the procedure laid down under section 65(B) would only be applicable to secondary evidence and that electronic record produced as primary evidence would continue to be governed by section 62 of the Evidence Act. Their Lordships emphasized that the certificate under Section 65(B) was only mode or proof of electronic record introduced by the way of secondary evidence, without which the record would inherently in admissible.

18. Significantly a Divisional Bench of Hon‟ble Supreme Court in Shafi Ahamad held that section 65(A) and 65(B) of the Evidence Act can not be held to be a complete code and that the procedural requirement under section 65(B)(4) of the

Evidence Act is to be applied only that electronic evidence is produced by the person , who is in a position to produce such certificate, being in control of the device in question , that the requirement of certificate under section 65(B) (4) is always mandatory.

19. The conflict in respect of requirement of filing a Certificate under Section 65(B)(4) of the Evidence Act has been settled by the Hon‟ble Supreme Court in the Judgment in Arjun Pandit Rao Khotkar Vs. Kailash Kushan Rao Gorantyal and

Others, Reported in AIR 2020 SC 4908, wherein their Lordships upheld the

Judgment laid down in Anwar PV Case, cited supra.

20. The Hon‟ble Apex Court held that the requisite certificate in terms of Section 65(B)(4) of the Evidence Act is not mandate if the original document itself is produced- which would be the original electronic record contained in the 13

Criminal Appeal No.13/2020 IX Addl. District & Sessions Judge, KVR computer in which the information is first stored. The Hon‟ble Supreme Court further clarified that the original document can be proved by the owner of the laptop, computer or mobile phone by stepping into witness box and proving that the concerned device is owned and operated by him. Whereas in case of a computer output which would be secondary evidence of electronic record, the Hon‟ble

Supreme Court reaffirmed that compliance with section 65(B) is mandatory prerequisite to admissibility.

21. In the present case on hand, Ex.P.1/Marriage photograph along with CD is marked subject to objection raised by the learned defence counsel for not producing 65(B) Certificate. In this regard, in her cross examination P.W.1 testified that

Ex.P.1 photograph was captured from the mobile phone of A.1 at Mari Matha

Temple , Gowripatnam and that the original of Ex.P.1 is lying in the possession of

A.1.

22. In Arjun Pandit Rao case, cited supra, their Lordships answered such situation where the party was unable to get requisite certificate, applicable as the

Latin Maxin “ Lex non cogit ad impossibilia” (the law does not demand the impossible) and impotentia excusat legem( where there is a disability that makes it impossible to obey the law, the alleged disobedience the law is excused) kick in, and thus, the party must be relieved of the mandatory rigor of section 65(B)(4) in such cases. In the present case on hand, as per the evidence of P.W.1, Ex.P.1 was captured from the mobile phone of A.1 and it is with Accused No.1. Hence, P.W.1 can not be blamed for not producing the original of Ex.P.1 or 65(B) certificate.

23. The evidence of P.W.1 reveals that her parents performed her marriage with A.1 at Gospel Penthukosthu Church. P.W.1 testified that since their marriage at Mary Matha Church, Gowripatnam was not performed in the presence of any one of her marriage in Gospel Penthukosthu Church in the presence of pastor Sri 14

Criminal Appeal No.13/2020 IX Addl. District & Sessions Judge, KVR

Sanamadra Salman Raju. In this regard, P.W.1 filed Ex.P.2/Attested copy of

Marriage Certificate.

24. In proof of solemnization of marriage as per Christian Rites and Caste

Customs and in proof of Ex.P.2, the prosecution has examined P.W.12 marriage pastor. As Ex.P.2 is marked subject to objection raised by the learned defence counsel , P.W.2 was summoned to produce marriage Register. Ex.P.19/ Compared copy of marriage register maintained by P.W.12 comprise the marriage extract at serial No.74. P.W.12 supported the evidence of P.W.1 that in the presence of parents of P.W.1 and some elders, he performed the marriage of P.W.1 and

Accused No.1 in accordance of Christian Religious Rites and Customs and issued

Ex.P.2/ Marriage Certificate. The evidence of P.W.12 further disclose that at the time of marriage registration one Pasilipudi Venaktarao and Meripo Edukondalu and K.Nagabhushanam signed as witnesses in the marriage register. On perusal of

Ex.P.19 contains seal and signature of the Church. In the cross examination of

P.W.1 consistently deposed that the parents of P.W.1 and A.1 neither related to him nor members of the Church where P.W.12 is working as Pastor. Thus,

P.W.12, being an independent witness, who is pastor of Gospel Penthukosthu

Church, consistently testified about performance of marriage between P.W.1 and

A.1 as per Christian Religious Rights and Customs. The oral testimony of P.W.12 is also supported by Ex.P.2 and Ex.P.19. Merely because of some corrections found in Ex.P.19, itself is not sufficient to disbelieve the evidence of P.W.12.

25. Furthermore, P.W.2 and P.W.3, parents of P.W.1 and P.W.4, who is a marriage witness also supported the evidence of P.W.1 that they reorganized the marriage in the Church of P.W.12. The entries in Ex.P.2 and Ex.P.19 disclose that the marriage between P.W.1 and A.1 was performed on 06.05.2015 under

Indian Christian Marriage Act solemnized by P.W.12 at Gowripatnam.

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Criminal Appeal No.13/2020 IX Addl. District & Sessions Judge, KVR

26. Therefore, the oral testimonies of P.W.1 to 4 and P.W.12 and for Ex.P.1,

Ex.P.2 and Ex.P.19 the prosecution proved marital relationship between P.W.1 and

A.1. Thereby, Accused No.2, being the mother of the deceased accused No.1 covered under the expression of „relative‟ under section 498-A of I.P.C. Point No.1 is answered in favour of the prosecution.

27. POINT NO.2:-

Now the evidence on record is to be assessed to find out whether Accused

No.2, being the mother-in-law of P.W.1, subjected P.W.1 to matrimonial cruelty.

Ex.P.16, statement of P.W.1, disclose that P.W.1 never stayed at her in-laws house. Ex.P.16 further disclose that accused No.1 resided in the house of P.W.1 and he used to visit his parents house now and then. Furthermore, Ex.P.16 reveals that three months prior to the date of Ex.P.16, Accused No.1 left the house of

P.W.1 and he did not return, that Accused No.1 abused P.W.1 in filthy language for making phone calls to him. P.W.1 in Ex.P.16 alleges that A.1 got aborted her pregnancy for two times, that A.1 used to suspect her fidelity and conduct. Only allegation levelled against Accused No.2 , who is the mother of A.1 under Ex.P.16 is that she denied the marriage and going to perform second marriage to accused

No.1 and on that P.W.1 consumed pesticide poison on 08.02.2017 at her house, that P.W.1 was rescued by her neighbour. Ex.P.17 is the police intimation and on receipt of the same the statement of P.W.1 was recorded under Ex.P.16 and the same is registered as FIR in Cr.No.241/2017 under which Ex.P.14 for the offence under section 498-A of I.P.C. Originally accused No.2 is not arrayed as accused under Ex.P.14/Printed FIR. Subsequently, by the time of filing of the charge sheet due to subsequent development in respect of dowry demand and allegations against mother of accused No.1, accused No.2 is added as co-accused.

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Criminal Appeal No.13/2020 IX Addl. District & Sessions Judge, KVR

28. In the evidence of P.W.1 the prosecution got marked Ex.P.11/Suicide note scribed by P.W.1. In view of survival of P.W.1, the evidentiary value of Ex.P.11 is nothing but her previous statement. Admittedly, Ex.P.11 does not contain date and place. Furthermore, the material allegations leveled against accused No.2 in

Ex.P.11 that she kicked P.W.1 on her stomach while P.W.1 was carrying pregnancy, that accused No.2 threatened to kill P.W.1, that Accused No.2 beat

P.W.1 for not brining dowry are not omissions in Ex.P.16/FIR statement so also in her previous 161 Cr.P.C statement.

29. As seen from the evidence of prosecution witnesses there are no serious allegations attributed against accused No.2 to constitute cruelty defined under section 498-A of I.P.C. The only allegation levelled against accused No.2 is that she did not allow P.W.1 and A.1 to stay in her house. Mere denial of relationship between P.w.1 and accused No.1 by A.2 does not constitute matrimonial cruelty.

There is no whisper in the testimony of P.W.1 that accused No.2 subjected her to cruelty or made any illegal demands to drive her to commit suicide. Admittedly,

P.W.1 never resided with accused No.2.

30. The evidence of P.W.5 is that the parents of accused No.1 necked out

P.W.1 from their house. However, it is an omission in her previous 161 Cr.P.C statement. P.W.6, one of the neighbor of P.W.1, testified that family members of accused No.1 beat P.W.1 indiscriminately. However, there is no whisper in the testimony of P.W.1 that family members of accused No.1 or her mother-in-law beat her indiscriminately. Even otherwise, the evidence of P.W.6 coupled with omissions in her previous 161Cr.P.C statement. There is no whisper in the testimonies of P.W.1 that accused No.2 forced her to abort her two pregnancies.

31. The evidence of P.W.8 that accused No.2 dislikes P.W.1 for marrying accused No.1 without obtaining dowry is also an omission in his previous 161 17

Criminal Appeal No.13/2020 IX Addl. District & Sessions Judge, KVR

Cr.P.C statement. There is nothing in the testimony of P.W.1 to P.W.8 that accused

No.2, being the mother-in-law of P.W.1, harassed her either physically or mentally and drove P.W.1 to commit suicide or made unlawful demands to constitute matrimonial cruelty defined under section 498-A of I.P.C. Even otherwise, there is no explanation offered by P.W.11, the investigation officer for adding accused No.2 subsequently , though accused No.2 was not arrayed as accused in the first information report registered based on statement of P.W.1.

Prosecution failed to prove the guilt of A.2 for the for offence punishable under section 498-Aof I.P.C. Accordingly, point No.3 is answered in favour of the accused No.2 and against the prosecution.

32.Point No. 3 : For the reasons stated supra, this court is of the opinion that the conviction and sentence of accused No.2 for the offence punishable under Section 498-A of Indian Penal Code by the Trial Court needs interference as it was not justified with sufficient reasons and it has to be set aside. Likewise accused No.2 cannot be convicted for the charge levelled against her under Section 498-A of

Indian Penal Code, since prosecution failed to prove her guilt for the said offence beyond reasonable doubt. Accordingly this point is answered in favour of the accused No.2 and against the prosecution.

33. In the result, the Criminal Appeal is allowed and conviction and sentence

dated 13.01.2020 passed in C.C.No.159/2017 passed by I Additional Junior Civil

Judge-Cum-I Additional Judgment Magistrate of I Class, Kovvur, be and hereby

reversed against Appellant/Accused No.2. Appeal is abated against

Appellant/Accused No.1 as per docket order dt.13.10.2022. The Appellant/Accused

No.2 is found not guilty for the offence under Section 498-A of Indian Penal Code and she is acquitted under Section 248(1) of Cr.P.C. Bail bonds of the accused No.2 18

Criminal Appeal No.13/2020 IX Addl. District & Sessions Judge, KVR and sureties shall stand cancelled after expiry of appeal time. The trial court is directed to refund of fine amount of Rs.5,000/- paid by the Appellant/Accused

No.2 after expiry of appeal time.

Dictated to the Stenographer Grade –I , transcribed by her, corrected and

pronounced by me in open court, this the 7 th day of February, 2025.

Sd/- Smt.M.Anuradha,

IX Additional District & Sessions Judge, Kovvur.

No oral or documentary evidence is adduced on either side.

Id/-Smt.M.A.

IX AD&SJ,

Kovvur

Copy to:

1. The learned Registrar (Judicial), High Court of A.P., Amaravathi.

2. The learned I Additional Junior Civil Judge-Cum-I Additional Judgment

Magistrate of I Class, Kovvur.

M.V.O.P.125/2022, Dt.05-05-2026 MACT-Cum-IX A.D.J, Kovvur, Fair Copy 1

BEFORE THE CHAIRPERSON, MOTOR ACCIDENT CLAIMS

TRIBUNAL -CUM- IX ADDITIONAL DISTRICT JUDGE::

WEST GODAVARI, KOVVUR

Present: Smt. M. Anuradha,

Chairperson, M.A.C.T., cum IX Additional District Judge, Kovvur

Tuesday, this the 5th day of May, 2026

M.V.O.P.No.125/2022

Between:

1. Vallepu Durga, W/o. Naga Venkata Krishna Prasad, Aged 26 years, Female, R/o. Dommeru Village, Kovvur Mandal, W.G. District.

2. Vallepu Rishyendra Balu, S/o. Naga Venkata Krishna Prasad, Aged 7 years, Male, R/o.Dommeru Village, Kovvur Mandal, W.G. District.

3. Vallepu Prema Varshini, D/o. Naga Venkata Krishna Prasad, Aged 5 years, Female, R/o. Dommeru Village, Kovvur Mandal, W.G. District.

4. Vallepu Arjuna Rao, S/o. Ramulu, Aged 52 years, Male, R/o. Ramayammarao Peta, Nuzvid, Krishna District. (Petitioners no.2 & 3 being minors represented by her mother and natural guardian i.e., petitioner no.1)

.. Petitioners

And

1. Vinod Kumar Kandaswamy, S/o. Kandaswamy, aged 31 years, Male, Driver of Lorry bearing no.TN 34 X 8013, R/o. Nachapalayam Village, Varangurapatti Mandal, Namakkal District, Tamilnadu State.

2. G. Palanisamy, S/o. Ganesan, Male, Owner of Lorry bearing No. TN 34 X 8013, R/o. D.No. 51/1, Veppadai, Elandakuttal, Kumarapalayam TK, Namakkal District, Palliagraharam, Tamil Nadu.

3. The New India Assurance Company Limited, Represented by it's Divisional Manager, Divisional Office, Main Road, Innispeta, Rajahmundry, E.G. District.

.. Respondents

M.V.O.P.125/2022, Dt.05-05-2026 MACT-Cum-IX A.D.J, Kovvur, Fair Copy 2

The petition came for final hearing before me in the presence of Sri K. Narasimha Rao, learned Advocate for the Petitioners, and Sri K. Madhu Sekhar, advocate for respondent no.1 and of Sri T. Rajasekhar, advocate for respondent no.2, and of Sri B. Srikanth, learned Advocate for the Respondent No.3, and having stood over for consideration to this date, this Tribunal passed the following:

A W A R D

The petitioners, being the wife, children and father of the deceased, filed the claim petition under Section 166 of the Motor Vehicles Act seeking compensation of Rs.27 lakhs for the death of one Vallepulu Naga Venkata

Krishna Prasad.

02. The averments of the petition in brief reads as follows:

It is averred that the deceased was working as a sweeper-cum- driver in Dommeru Gram Panchayat and earning Rs.13,000/- per month, and that the petitioners were entirely dependent on his income. On 11.11.2022 at about 4:45 PM, while the deceased was proceeding on his motorcycle near

Yarnagudem village on NH-216, he met with an accident. It is stated that after he fell on the road, the driver of the offending lorry bearing No. TN 34 X 8013 drove the vehicle in a rash and negligent manner and ran over him, resulting in instantaneous death. The accident is alleged to have occurred solely due to the rash and negligent driving of the 1st respondent, who is the driver of the lorry.

Respondent no.2, being the owner, and respondent no.3, being the insurer, are stated to be vicariously liable. The petitioners further aver that the deceased was aged about 34 years, hale and healthy, and had a long earning career ahead.

Due to his sudden death, the family lost their breadwinner and suffered mental agony, loss of dependency, and loss of love and affection. It is also pleaded that this is the first petition filed and no other claim has been made. The petitioners, therefore, claim a total compensation of Rs.27,00,000/- against the respondents jointly and severally.

M.V.O.P.125/2022, Dt.05-05-2026 MACT-Cum-IX A.D.J, Kovvur, Fair Copy 3

03. R1 and R2 remained ex parte. Respondent no.3/Insurance

Company filed its written statement denying all the material averments made in the petition as false and not maintainable either in law or on facts, and put the petitioners to strict proof of all allegations. R3 denied the manner of accident, rash and negligent driving of the lorry driver, and contended that the petitioners must prove the same by cogent evidence. The insurer further disputed that the driver of the offending lorry bearing No. TN 34 X 8013 possessed a valid and effective driving licence and also denied that the vehicle had valid and subsisting documents such as RC, FC and permit at the time of accident. The 3rd respondent also denied that the said vehicle was validly insured with it at the time of accident and that the policy, if any, covered the alleged risk, thereby disputing its liability to pay compensation. R3 further denied the age, occupation and income of the deceased and also questioned the status of the petitioners as legal representatives and dependents, calling upon them to strictly prove the same. The insurer specifically contended that the accident occurred due to the negligence of the deceased himself while riding the motorcycle and that there was no negligence on the part of the lorry driver. On that ground, R3 pleaded that no liability can be fastened on the respondents and sought dismissal of the petition. R3 also pleaded that the compensation claimed is excessive and exaggerated and, in any event, liability is subject to the terms and conditions of the policy and provisions of the Motor Vehicles Act. The insurer further pleaded that interest, if any, should be limited and payable only from the date of award.

The 3rd respondent sought protection under Sections 147, 149(2) and 170 of the

Motor Vehicles Act and reserved its right to file additional written statement.

04.Basing on the pleadings, the following issues were settled by the then Chairman of the Tribunal for consideration:

1. Whether the pleaded accident dated 11.11.2022 at about 4:45 PM on NH-216 at Yarnagudem village has occurred due to the rash and negligent driving of R1 (driver of lorry bearing No. TN 34 X

M.V.O.P.125/2022, Dt.05-05-2026 MACT-Cum-IX A.D.J, Kovvur, Fair Copy 4 8013) and whether the deceased Vallepu Naga Venkata Krishna Prasad, S/o. Arjuna Rao died due to the said accident?

2. Whether the lorry bearing registration No. TN 34 X 8013 was owned by Respondent No.2/G. Palaniswamy as on the date of accident and whether there are any violations of conditions of policy? If so, what are its effect?

3. Whether the claimants are entitled for compensation? If so, what amount and against whom?

4. To what relief?

05. During the enquiry, petitioners in support of their claim, petitioner no.1 is examined as PW.1 by reiterated the petition averments and marked

Exs.P1 to P7. Panchayat Secretary is examined as to prove employment of the deceased and salary records are marked as Exs.P8 to P31. One of the eye witness to the accident is examined as PW.3 to prove the case of rash and negligent driving by the lorry driver. On behalf of Respondent no.3, their

Assistant Manager is examined as RW.1 and Ex.B1/policy copy is marked.

Respondent no.3 filed petition in I.A. No. 1421/25 under section 170 of M.V. Act and permit him to take all defenses available for respondents no. 1 & 2 and the same was allowed.

06. Heard the arguments of the learned counsel for the petitioners and Learned counsels for respondent no.3.

Issue No.1:

07. It is the specific case of the petitioners so also the evidence of petitioner no.1 as PW.1 is that on 11.11.2022 at about 4:45 PM, while the deceased was proceeding on his motorcycle near Yarnagudem village on

NH-216, he fell on the road after hitting a drum kept near the road divider and immediately thereafter the driver of the offending lorry drove the vehicle in a rash

M.V.O.P.125/2022, Dt.05-05-2026 MACT-Cum-IX A.D.J, Kovvur, Fair Copy 5 and negligent manner and ran over the deceased, resulting in his instantaneous death.

08. To substantiate their case, the petitioners examined PW.3 as an eye witness. PW.3 categorically deposed that while he was supervising watering of plants on the road divider, the deceased first dashed against a drum and fell on the road and immediately thereafter the driver of the lorry bearing No. TN 34 X 8013, coming at high speed, drove the vehicle in a rash and negligent manner and ran over the deceased. The evidence of PW.3 clearly establishes that R1 i.e., lorry driver of the offending vehicle failed to take necessary care to avoid the fallen motorcyclist on the road. Though in the cross-examination PW.3 admitted that the deceased initially hit the drum and fell down, nothing substantial was elicited to discredit his version regarding the rash and negligent act of R1/lorry driver in running over the deceased. The mere fact that the deceased fell down prior to the impact does not absolve the driver of the offending vehicle from his duty to drive cautiously, particularly on a highway. Furthermore, the evidence of

PW.1 is corroborated by documentary evidence. Ex.P1/FIR and Ex.P5/Charge sheet disclose that a criminal case was registered against R1/driver of the offending lorry and after investigation, he was charge-sheeted for the offence under Section 304-A of IPC. There is no material to show that the investigating agency attributed any negligence to the deceased.

09. On the other hand, the 3rd respondent examined RW.1, who admittedly has no personal knowledge of the accident and deposed only based on records. RW.1 herself admitted in cross-examination that as per the charge sheet, the driver of the lorry i.e., R1 was shown as the accused and no contributory negligence was attributed to the deceased. Thus, the plea of contributory negligence raised by the insurer is not supported by any convincing evidence. It is well settled that in motor accident claims, strict rules of evidence

M.V.O.P.125/2022, Dt.05-05-2026 MACT-Cum-IX A.D.J, Kovvur, Fair Copy 6 are not required and the Tribunal has to consider the case on the touchstone of preponderance of probabilities. The consistent testimony of PW.3 coupled with police records clearly establishes that the accident occurred due to the rash and negligent driving of the R1/driver of the offending lorry. Therefore, this Tribunal holds that the accident occurred due to the rash and negligent driving of

R1/driver of the lorry bearing No. TN 34 X 8013. Accordingly, issue no.1 is answered in favour of the petitioners.

Issue No. 2:

10.The burden of proving this issue lies on the respondents, particularly the 3rd respondent/Insurance Company, which has taken a specific plea regarding violation of policy conditions and disputed its liability. In the present case, the petitioners relied upon Ex.P1/FIR and Ex.P5/Charge sheet, wherein the offending vehicle i.e., lorry bearing No. TN 34 X 8013 is clearly mentioned and Respondent No.1 is shown as the driver of the said vehicle. There is no dispute raised with regard to the involvement of the said vehicle in the accident.

11. Furthermore, respondent no.3 examined their Manager as RW.1, who categorically deposed that the offending vehicle was covered by a valid insurance policy as on the date of the accident and the said policy was marked as Ex.B1. Thus, the existence of a valid insurance policy covering the offending vehicle at the relevant time stands admitted. Though R3/Insurance Company has taken a plea in the written statement that the driver might not have possessed a valid and effective driving licence and that the vehicle might not have valid documents such as permit, fitness certificate, etc., no evidence whatsoever has been adduced to substantiate the said pleas. No documentary evidence is produced to show breach of policy conditions. Mere pleading without proof is not sufficient to absolve the insurer from its statutory liability.

M.V.O.P.125/2022, Dt.05-05-2026 MACT-Cum-IX A.D.J, Kovvur, Fair Copy 7

12. The burden of proving breach of policy conditions lies on R3/insurer.

In the absence of any cogent evidence, the Tribunal cannot presume violation of policy conditions. In the present case, except making bald allegations, the 3rd respondent failed to establish any violation of policy terms. On the contrary,

RW.1 admitted that the vehicle was insured under a valid policy. Therefore, this

Tribunal holds that the offending vehicle was owned by Respondent No.2 as on the date of accident and it was covered by a valid insurance policy issued by the 3rd respondent and there is no proof of violation of policy conditions.

Accordingly, the 3rd respondent/Insurance Company is liable to indemnify

Respondent no. 2. Hence, issue no.2 is answered in favour of the petitioners.

Issue No. 3:

13. The entitlement and quantum of compensation depend upon proof of (i) relationship and dependency, (ii) age and occupation of the deceased, and

(iii) income of the deceased. Petitioner no.1 is the wife, petitioners no.2 & 3 minor children of the deceased and petitioner no.4 is father of the deceased. The said fact is not disputed by the 3rd respondent. The Hon’ble Apex court in Civil

Appeal No. 7593 OF 2022 [Arising out of Special Leave Petition (C) No.

28833 OF 2019] in between Manusha Sree kumar & Ors. Vs The United

India Insurance Co. Ltd. decided on October 17th, 2022 held as under:

“While determining compensation under the Act, section 168 of the Act makes it imperative to grant compensation that appears to be just. The Act being a social welfare legislation operates through economic conception in the form of compensation, which renders way to corrective justice. Compensation acts as a fulcrum to bring equality between the wrongdoer and the victim, whenever the equality gets disturbed by the wrongdoer’s harm to the victim. It also endeavors to make good the human suffering to the extent possible and to also save families which have lost their breadwinners from being pushed to vagrancy. Adequate compensation is considered to be fair and equitable compensation. Courts shoulder the responsibility of deciding adequate compensation on a case to case basis. However, it is imperative for the courts to grant such

M.V.O.P.125/2022, Dt.05-05-2026 MACT-Cum-IX A.D.J, Kovvur, Fair Copy 8 compensation which has nexus to the actual loss. The widely accepted, commonly practiced, sound and safest method of determining compensation is the multiplier method.”

14. Following precedential guidance in the decision of the Hon’ble

Supreme Court in the case of Sarla Verma and Others Vs. Delhi Transport

Corporation and another, [2009 ACJ 1298], the compensation to which the petitioners are entitled is determined hereunder.

Age and income of the Deceased:

15.The petitioners claimed in the petition that the deceased age was 34 years. Ex.P2/Inquest report and in Ex.P3/ Post-mortem Certificate also disclose the age of deceased as 34 years. Further, in the petition also the age of the deceased is shown as 34 years. Thus, in view of the above, it can be said that as on the date of the accident, the deceased aged about 34 years and the same is not disputed by the respondents also.

16. In the present case, PW.1, who is the wife of the deceased, deposed that the deceased was working as a sweeper-cum-driver in Dommeru

Gram Panchayat and was earning about Rs.13,000/- per month. PW.1 further stated that all the petitioners were dependent upon the earnings of the deceased. Her evidence establishes the relationship of the petitioners with the deceased and their dependency. Nothing material was elicited in her cross- examination to discredit her testimony regarding dependency, though PW.1 admitted that no formal appointment order of the deceased was filed.

17. To substantiate the occupation and income of the deceased, the petitioners examined PW.2, the Panchayat Secretary of Dommeru Gram

Panchayat. PW.2 deposed that the deceased worked as a contract sweeper in the Gram Panchayat from March, 2021 to November, 2022. PW.2 further stated that the deceased was paid salary of Rs.12,000/- per month initially and

M.V.O.P.125/2022, Dt.05-05-2026 MACT-Cum-IX A.D.J, Kovvur, Fair Copy 9

Rs.13,000/- per month from April, 2022 onwards, and that certain arrears were also paid. Through PW.2, Exs.P8 to P30 were marked. Ex.P8 and Ex.P9 &

Ex.P31 are resolutions of the Gram Panchayat, while Exs.P10 to P30 are salary receipts relating to the deceased for the period from March, 2021 to October, 2022. These documents prima facie support the version of PW.2 that the deceased worked as Sweeper and his employment is purely on contract basis under the Gram Panchayat.

18. However, in the cross-examination, PW.2 admitted that no regular salary disbursement register is maintained and the payments were made in cash. PW.2 also admitted that some of receipts filed under Ex.P10 to P30 do not contain dates or revenue stamps and that he could not produce the cash book containing entries of such payments. PW.2 further deposed that the appointment was on a temporary and work-specific basis through tender process and not a regular appointment. Thus, though the evidence of PW.2 and Exs.P8 to P30 indicate that the deceased worked and received remuneration as Sweeper in

Gram Panchayat, the said evidence is not free from doubt due to absence of primary records like salary register or cash book and due to certain deficiencies in the receipts. Hence, the exact income as claimed by the petitioners cannot be accepted in toto. At the same time, the Tribunal cannot ignore the fact that the deceased was admittedly engaged in work as Sweeper under the Gram

Panchayat and earning some income. Therefore, in the absence of reliable documentary proof of exact income, it would be appropriate to fix a reasonable notional income. The Hon'ble Supreme Court in Ramachandrappa vs Royal

Sundaram Alliance Insurance Co. Ltd. 1 held that where there is no documentary evidence regarding income of a self-employed person, the Tribunal can reasonably assess the income considering the prevailing wages and circumstances. Similarly, in Syed Sadiq vs Divisional Manager, United India 1(2011) 13 SCC 236

M.V.O.P.125/2022, Dt.05-05-2026 MACT-Cum-IX A.D.J, Kovvur, Fair Copy 10

Insurance Co. Ltd.2, the Hon’ble Supreme Court observed that in cases where the income is not proved by documents, the Tribunal should make a reasonable estimate of the income of the deceased. In the present case, considering the nature of work, year of accident (2022) and surrounding circumstances, the monthly income of the deceased is reasonably fixed at Rs.10,000/- (Rupees Ten

Thousand only).

19. Therefore as per Sarla Verma and others Vs. Delhi Transport

Corporation and another [(2009) 6 SCC 121] and National Insurance

Company Limited Vs. Pranay Sethi and others [ (2017) 16 SCC 680] for the age group of 31-35 years, the multiplier applicable is ‘16’.

20. Learned counsel for petitioners by claiming future prospects, referred the judgments reported in Kirti & Anr. Etc., vs. Oriential Insurance

Company Ltd.,3 and Janabai and Others Vs. ICICI Lombord Insurance

Company Ltd.,4 wherein their lordships held that awarding of future prospects is now a part of the duty of the Court to grant just compensation, taking into account the realities of life, particularly of inflation, the quest of individuals to better their circumstances and those of their loved ones, rising wage rates and the impact of experience on the quality of work. In the present case on hand, considering the fact that the deceased was 34 years old, future prospects are fixed at 40% applicable. Thus, the annual income of the deceased is arrived at (Rs. 10,000/- x 12= 1,20,000/-, Rs.1,20,000 x 40%=48,000/-, Rs.1,20,000/- +

Rs.48,000/-) Rs. 1,68,000/-.

(A). Loss of Dependency:-

21. As seen from the record, there are 4 claimants. Thereby, as per the guidelines issued in Sarla Verma (cited supra), the deduction for personal 2(2014) 2 SCC 735 3 2021 SAR (Civ) 147 4 2022 (3) TAC 705 (SC)

M.V.O.P.125/2022, Dt.05-05-2026 MACT-Cum-IX A.D.J, Kovvur, Fair Copy 11 expenses is 1/4th. Out of the said amount, according to the age and dependents of the deceased death multiplier would be according to the age of deceased and 1/4th is to be deducted as personal and living expenses which comes to [Rs.1,68,000/- x 1/4=Rs.42,000/-, (Rs.1,68,000/- - Rs.42,000/-)] Rs. 1,26,000/-.

Thus, an amount of Rs.42,000/- is deducted towards personal and living expenses of the deceased. So the annual contribution to the family i.e., the multiplicand is determined as Rs.1,26,000/-. Thus, the contribution to the family after deducting the personal and living expenses would be Rs.1,26,000/- and if the annual income of Rs.1,26,000/- is multiplied with 16, the loss of dependency would be Rs.20,16,000/- [Rupees Twenty Lakhs and Sixteen Thousand only].

(B). Compensation under Conventional Heads:

22. The judgment of the Hon’ble Apex Court in Pranay Sethi (cited supra) in para no. 61 (viii) as follows: “reasonable figures on conventional heads, namely loss of estate and funeral expenses should be Rs.15,000/- and

Rs.15,000/- respectively. By following the same, in the present case on hand, petitioners are entitled for an amount of Rs. 15,000/- towards Loss of Estate and

Rs. 15,000/- towards Funeral Expenses.

23. Similarly, inNew India Assurance Company Ltd. Vs.

Smt.Somwati and others 5the Hon’ble Apex Court held at para no. 21 as follows:

21.1. Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of “company, society, cooperation, affection, and aid of the other in every conjugal relation.” 21.2. Parental consortium is granted to the child upon the premature death of a parent, for loss of “parental aid, protection, affection, society, discipline, guidance and training.” 5 (2020) 15 SCC 541

M.V.O.P.125/2022, Dt.05-05-2026 MACT-Cum-IX A.D.J, Kovvur, Fair Copy 12 21.3. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.

24.Therefore, in the instant case, also petitioner no.1, being wife of deceased is entitled to claim of Spousal consortium of Rs.40,000/-. Petitioners no.2 and 3, being minor children of the deceased are entitled to claim Parental consortium of Rs. 40,000/- each and petitioner no.4 being father of the deceased is entitled to claim Filial consortium of Rs. 40,000/- on account of death of deceased. Thereby, petitioners no.1 to 4 are entitled to get an amount of

Rs.40,000/- each. Consequently, they are entitled to get Rs.1,60,000/- towards total consortium.

25. In Dharampal v. U.P. State Road Transport Corporation 6, the

Hon’ble Supreme Court held that in fixing the rate of interest on the award

amounts, Courts have to consider the prevailing rate of interest on fixed deposits in Nationalized Banks. Hence, considering the recent rate of interest on the

Fixed Deposits in Nationalized Banks interest @ 6.45% per annum is awarded from the date of petition till date of realization.

26.Thus, in all the claimants are entitled to the following compensation amounts:

S.No.DescriptionAmount Rs.

1.Loss of dependency20,16,000/-

2.Loss of estate15,000/-

3.Loss of consortium (Rs.40,000/- x 4 )1,60,000/-

4.Funeral expenses 15,000/- Total:22,06,000/-

(Rupees Twenty Two Lakhs and Six Thousand Only)

6AIR 2008 SUPREME COURT 2312

M.V.O.P.125/2022, Dt.05-05-2026 MACT-Cum-IX A.D.J, Kovvur, Fair Copy 13

27. As already discussed under Issue No.1, the accident occurred due to the rash and negligent driving of the lorry driver. Under Issue No.2, it is held that the offending vehicle was insured with the 3rd respondent and there is no violation of policy conditions. Hence, the respondents are liable to pay compensation. Accordingly, the petitioners are entitled for compensation, and

Respondents 1 and 2 being driver and owner are primarily liable, while

Respondent No.3/Insurance Company is liable to indemnify them. Thus, this issue no.3 is answered in favour of the petitioners and the petition is allowed in part.

28. In the result, the petition is allowed in part. Respondents No.1 to 3 jointly and severally liable to pay the compensation. Accordingly, petitioners no.1 to 4 are awarded a total compensation of Rs. 22,06,000/- (Rupees Twenty Two

Lakhs and Six Thousand only) together with interest at 6.45% per annum from the date of petition to till the date of realization, along with proportionate costs.

Out of the total compensation amount of Rs. 22,06,000/-, petitioners no.1 is entitled 40 percent and petitioners no.2 to 4 are entitled to 20 percent each along with interest and costs. Respondent No.3 is directed to deposit the entire compensation amount of Rs.22,06,000/- along with accrued interest and costs as per the proportioned share of the petitioner no.1 to 4 to their respective bank accounts furnished by them within two (02) months from the date of this order.

The compensationamount of petitioners no.2 and 3, being minors, shall be kept in fixed deposit of the bank account particulars furnished by the petitioner no.1 till petitioners no.2 and 3 attaining age of majority. The Bank Authority concerned is directed to keep the the apportioned amount of the petitioners no.2 and 3 in fixed deposit, till their attaining age of majority. Further, by virtue of the law laid down by the Honble Supreme Court in Parminder Singh vs. Honey Goyal and others, out of the awarded amount, the petitioners no.1 and 4 are permitted to withdraw their respective entire proportioned share along with interest and costs

M.V.O.P.125/2022, Dt.05-05-2026 MACT-Cum-IX A.D.J, Kovvur, Fair Copy 14 by transfer to their bank accounts. Petitioners no.1 & 4 already furnished their bank accounts by virtue of the decision given by the Honble Apex Court in

Parminder Singh case (cited supra). A Decree shall be prepared and a copy of this order shall be issued to the claimant, on remitting the deficit/balance court fee. Respondent no.3 is directed to furnish information by filing EA under order XXI Rule 2 CPC r/w 223 Civil Rules of Practice in prescribed format

before the Tribunal showing the MVOP number, Date of Disposal, Awarded

amount, mode of payment, relief claimed etc., as per law. Advocate fee is fixed at Rs.10,000/- (Rupees Ten thousand only).

Typed to dictation to the Stenographer, directly typed by him on computer, corrected and pronounced by me in open court, this the5 th day of Digitally Signed by May, 2026 .

ANURADHA MARELLA

Date: 2026.05.05 18:30:22 +0000

CHAIRPERSON, MOTOR ACCIDENTS CLAIMS

TRIBUNAL-CUM-IX ADDITIONAL DISTRICT JUDGE

KOVVUR

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONERS: FOR RESPONDENTS:

PW.1: Vallepu DurgaRW.1: I. Tejavathi PW.2: Sk. Kasim Saheb PW.3: Malla Dhanaraju

EXHIBITS MARKED

FOR PETITIONERS:

Ex.P1:Certified copy of FIR in Crime No.519/2022 of Devarapalli P.S. Ex.P2:Certified copy of Inquest report Crime No.519/2022 of Devarapalli P.S. Ex.P3:Certified copy of PM report in Crime No.519/2022 of Devarapalli P.S. Ex.P4:Certified copy of MVI Report in Crime No.519/2022 of Devarapalli P.S. Ex.P5:Certified copy of Charge sheet in Crime No.519/2022 of Devarapalli P.S. Ex.P6:Certificate issued by Panchayat secretary dated 20.12.2022. Ex.P7:Original driving license of the deceased N.V.Krishna Prasad. Ex.P8:True copy of general resolution of Gram Panahcyat, Dommeru dated 04.03.2022.

M.V.O.P.125/2022, Dt.05-05-2026 MACT-Cum-IX A.D.J, Kovvur, Fair Copy 15

Ex.P9:True copy of general resolution of Gram panchyat, Dommeru. Ex.P10: True copy of receipt in respect of payment of Rs.12,000/- to the deceased towards his salary for the month of April, 2022. Ex.P11: True copy of receipt in respect of payment of Rs. 12,000/- to the deceased towards his salary for the month of May, 2022. Ex.P12: True copy of receipt in respect of payment of Rs. 12,000/- to the deceased towards his salary for the month of June, 2022. Ex.P13: True copy of receipt Th respect of payment of Rs. 12,000/- to the deceased towards his salary for the month of July, 2022. Ex.P14: True copy of receipt in respect of payment of Rs. 12,000/- to the deceased towards his salary for the month of August 2022. Ex.P15: True copy of receipt in respect of payment of Rs. 12,000/- to the deceased towards his salary for the month of September, 2022. Ex.P16: True copy of receipt in respect of payment of Rs. 12,000/- to the deceased towards his salary for the month of October, 2022. Ex.P17: True copy of receipt in respect of payment of arrears salary of Rs.7000/- to the deceased from April, 2022 to October, 2022. Ex.P18: True copy of receipt in respect of payment of Rs.11,000/- to the deceased towards his salary for the month of March, 2021. Ex.P19: True copy of receipt in respect of payment of Rs.11,000/- to the deceased towards his salary for the month of April, 2021. Ex.P20: True copy of receipt in respect of payment of Rs. 11,000/- to the deceased towards his salary for the month of May, 2021. Ex.P21: True copy of receipt in respect of payment of Rs.11,000/- to the deceased towards his salary for the month of June, 2021. Ex.P22: True copy of receipt in respect of payment of arrears salary of Rs.3,000/- to the deceased from April, 2021 to June, 2021. Ex.P23: True copy of receipt in respect of payment of Rs. 12,000/- to the deceased towards his salary for the month of July, 2021. Ex.P24: True copy of receipt in respect of payment of Rs. 11,000/- to the deceased towards his salary for the month of August, 2021. Ex.P25: True copy of receipt in respect of payment of Rs.11,000/- to the deceased towards his salary for the month of September 2021. Ex.P26: True copy of receipt in respect of payment of Rs.24,000/- to the deceased towards his salary for the month of October and November, 2021. Ex.P27: True copy of receipt in respect of payment of Rs. 12,000/- to the deceased towards his salary for the month of December, 2021. Ex.P28: True copy of receipt in respect of payment of Rs. 12,000/- to the deceased towards his salary for the month of January, 2022. Ex.P29: True copy of receipt in respect of payment of Rs.12,000/- to the deceased towards his salary for the month of February, 2022. Ex.P30: True copy of receipt in respect of payment of Rs.12,000/- to the

M.V.O.P.125/2022, Dt.05-05-2026 MACT-Cum-IX A.D.J, Kovvur, Fair Copy 16 deceased towards his salary for the month of March, 2022. Ex.P31: True copy of general resolution of Gram panchayat Dommeru dated 29.05.2021. (Exs.P10 to Ex.P30 are compared with original produced by the witness.)

FOR RESPONDENTS:

Ex.B.1:Attested copy of Insurance Policy issued by respondent no.3 company.

Digitally Signed by

ANURADHA MARELLA

Date: 2026.05.05 18:30:48 +0000

CHAIRPERSON, M.A.C.T. CUM IX ADJ,

KOVVUR