M. Bujjappa PJCJ

IN THE COURT OF ADDL. JUDICIAL MAGISTRATE OF FIRST

CLASS, ANANTAPURAMU.

Present : Sri M. BUJJAPPA,

Additional Judicial Magistrate of First Class,

Anantapuramu.

Tuesday, the 8 th day of December, 2015.

C.C.No.1270/2010

Between:-

State : Through the Drug Inspector (I/C),

Anantapuramu.… Complainant.

And.,

1.M/S Gaba Pharmaceuticals private

Limited,D.No.16-11-405/102,

Moosarambagh,Hyderabad represented by its Director Mr. Raju

Gaba (A.2) … A.1

2.Mr. Raju Gaba, s/o Lalchand Gaba, age 50 years , Director of M/S Gaba

Pharmaceuticals Private Limited,… Accused.

Hyderabad. … A.2

This case was come up for final hearing before me on this day in the presence of Assistant Public Prosecutor for the prosecution and of Sri Intiyaz Ali and Sri A.V. Siva Reddy, Advocates for Accused and upon hearing both sides, and perusal of record and this matter having stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

1.The Drugs Inspector, Anantapuramu filed complaint

U/sec. 32 of the Drugs and Cosmetics Act, 1940 for contravention of section 18 (a) (i) of the Act against A.1 and A.2.

2

2.The averments of complaint in brief are that, T. Kailasam (Lw.1) working as Assistant Director, Drugs Control Administration,

Anantapuramu district and holding in charge of post of Drugs

Inspector, Anantapuramu. He was appointed as Drugs Inspector U/sec.

21 of the Drugs and Cosmetics Act, 1940 by the government of Andhra

Pradesh Vide G.O.M.S No. 103, Medical and Health (Lw.2) Department,

dated 6-3-1986, having jurisdiction over the entire state of Andhra

Pradesh and empowered to institute prosecution U/sec. 32 of the Act.

i). M/S Gaba Pharmaceuticals Private Limited (A.1), situated at D.No. 16-11-405/102, Moosarambagh, Hyderabad is holding licence to manufacture for sale of drugs (Which includes vomidone suspension) and its licence in Forms 25 and 28 are renewed in Form 26 valid up to 31-12-2011. Mr. Raju Gaba (A.2) is the Director of A.1 firm, who is looking after day to day business activities of A.1 firm and responsible to the company U/sec. 34 of the act.

ii). On 19-04-2007 T. Kailasam (Lw.1), Drugs inspector

Anantapuramu picked up drug sample U/Sec. 23 of the Act 4x30 ml.

Vomidone suspension, batch No. 02, manufacturing Dt. December, 2006, Expire date November 2008, Manufactured by M/S Gaba

Pharmaceuticals private limited (A.1) D.No. 16-11-405/102,

Moosarambagh, Hyderabad for the purpose of test/analysis from the main stores (medical), Government General Hospital, Anantapuramu in the presence of V. Ramachandra Chary, Pharmacist, Grade –II and sealed all four bottles and intimated taking of the samples for analysis in Form -13, dated 19-04-2007. As the price offered for sample was not accepted, T. Kailasam (Lw.1), gave receipt in form 17-A.

T. Kailasam (Lw.1), handed over one sealed sample 1x 30 ml. Form-17 3 and Form 17-A to Lw.2 and obtained his acknowledgment on Form 17 and 17-A.

iii). On 20-04-2007 T. Kailasam (Lw.1), forwarded one sealed bottle 1 x30 ml. Vomidone suspension; B. No. 02 to the government

Analyst, Drugs Control Laboratory, Hyderabad along with original Form- 18 bearing S.No. of memo 27/Sample/TK/DI/ATP/07, dated 20-04-2007 along with specimen impression of seal used, by registered parcel.

One copy of Form-18 along with specimen impression of seal used was sent separately in a cover by registered post to the Government

Analyst, Drugs Control Laboratory, Hyderabad under rule 57 of Drugs and cosmetics Rules 1945.

iv). On 9-7-2008 Lw.1 received certificate of test/analysis from the Laboratory, Hyderabad in Form-13 Dt. 28-6-2008 declaring vomidone suspension, B. No. 02, manufacturing by M/S Gaba

Pharmaceuticals Private Limited (A.1) as not of standard quality drug for the reason that “ The sample does not meet the label claim in respect of Domperidone content i.e., found 0.76 mg/1ml. against 1 mg./1ml. label claim.

V). On 10-07-2008 Lw.1 forwarded one copy of said Forj-13 report to the medical superintendent (Lw.3), government General hospital, Anantapuramu under his office letter RC.No.

606/TK/DI/ATP/2008, Dt. 10-07-2008 and requested to disclose source of supply of drug as required under section 18-A of the said act and obtained acknowledgment on office copy. T. Kailasam (Lw.1), went to

Government General Hospital, Anantapuramu, on enquiry, the

Superintendent, Government General Hospital, Anantapuramu (Lw.3) 4 gave reply letter Dt. 24-7-2008 enclosing attested copy of invoice No.

061345 Dt. 22-1-2007 of APHMHIDC. Drug stores, Anantapuramu.

VI). On 1-8-2008 T. Kailasam (Lw.1), under his above office letter forwarded one copy report in Form -13 and one sealed portion of sample to the Executive Engineer, APHMHIDC, Drug Stores,

Anantapuramu u/sec 23 (4) (iii) and 25 (2) of Drugs and Cosmetics Act, 1940. Sri P. Narasimha Reddy, Executive Engineer of APHMHIDC,

Kurnool is holding F.A.C of APHMHIDC, Anantapuramu, hence the pharmacist i/c of APHMHIDC Anantapuramu, J. Eswar Reddy (Lw.4) received above letter, form -13, one sealed portion of sample on behalf of executive Engineer APHMHIDC, Anantapuramu J. Eswar Reddy (Lw.4) stated in his letter dated 1-8-2008 that the subject drug vomidone suspension, B.No. 02 was purchased from A.1 firm under invoice No.

748, dated 15-12-2006 and confirmed supply of said drug to

Government General Hospital, Anantapuramu and submitted copy of purchase notice.

VII). On 5-8-2008 T. Kailasam (Lw.1), forwarded one attested copy of certificate of test/analysis in Form -13 to M/S Gaba

Pharmaceuticals Private limited (A.1), Hyderabad under his office letter

Dt. 4-8-2008 with a request to confirm manufacture and sale of drug

vomidone suspension, B. No. 02 to the Executive Engineer, APHMHIDC

Drug stores, Anantapuramu and to send attested copy of manufacturing licence, manufacturing record, analytical record and the details of persons responsible etc.

VIII). On 18-08-2008 T. Kailasam (Lw.1), received letter

Dt. 12-8-2008 from A.2, Director of M/S Gaba Pharmaceuticals private

5

Limited (A.1), Hyderabad enclosing self attested copies of drug manufacturing licences, manufacturing record, analytical record. In that letter A.1 firm informed that he is not accepting contents of

Form -13 report of the government Analyst, reserving right to challenge the said report.

LX). On 25-8-2008 T. Kailasam (Lw.1), deposited the sealed sample 1x 30 ml. Vomidone suspension B. No. 02 in this court U/sec.

23 (3) (ii) of the Act. On 28-8-2008 T. Kailasam (Lw.1), along with Sri

M. Vijayagopal, Drugs Inspector, Uppal Zone, Hyderabad went to M/S

Gaba Pharmaceuticals Private Limited (A.1) firm) situated at

D.No. 16-11-405/102, Moosarambagh, Hyderabad and served letter

RC.No. 606 Dt. 28-8-2008 informing that sealed sample was deposited

in the court. A.2 was present in the A.1 firm, received the letter and

acknowledged on office copy. On enquiry A.2 submitted his letter

Dt. 28-8-2008 stating that his wife Smt. Jaya Gaba and father

Sri Lalchand Gaba are the other Directors of A.1 firm but they are not involved in day to day business activities of A.1 firm, and he (A.2) is looking after day to day business activities of A.1 firm and responsible under section 34 of the Drugs and Cosmetics Act, 1940.

Smt. Neeraja, Analytical Chemist submitted statement confirming analysis of subject drug by her before releasing into market. Sri

S.K. Shareef, Manufacturing chemist was not available in the factory at that time and later he sent his statement Dt. 28-8-2008 stating that he manufactured the drug vomidone suspension, B.No. 02.

x). On 13-10-2008 T. Kailasam (Lw.1), received letter RC. No.

7895/M1A/NS/2008, dated 20-08-2008 from the Director, Drugs Control 6

Administration, Hyderabad instructing to complete legal formalities and to file a complaint in the court against all responsible parsons.

xii). A.1 firm submitted petition before this court to send the sample Vomidone suspension batch No. 2 to the Director, Central Drug

Laboratory, Calcutta for analysis. This court sent the ample drug to

Central Drug laboratory, Calcutta in Form No.1 date 31-10-2008 for analysis. The Director Central Drug Laboratory, Calcutta declared the drug Vomidone suspension B.No. 02 as not of standard quality vide his report in Form No. 2 report No. 2-1/2008-P&P/CC-114/446,

dated 28-11-2008 for the reason that the sample does not confirm to

claim with respect of drug content i.e., domperidone found 0.6772mg.

against label claim of 1mg./1ml.

xii). Vomidone suspension Batch No. 02, manufactured and sold by A.1 firm is a drug under section 3 (b) of the Drugs and cosmetics act, 1940, and A.1 firm is holding licence to manufacture for sale of this drug in Form-25. Vomidone suspension, B.No. 02, manufactured by A.1 firm is a not of standard quality drug as per report of the Government Analyst in Form -13 and report of Director,

Central Drug Laboratory, Calcutta in form No.2, as the sample contains dug 0.6772 mg./ml. against label claim of 1mg./1ml. (i.e., 67.72% of label claim). Raju Gaba (A.2) Director of A.1 firm is looking after day to day business of A.1 firm. As per section 34 of the Act A.1 firm and A.2 have contravened section 18 (a) (i) of Drugs and cosmetics Act, 1940 as they manufactured and sold not of standard quality drug and punishable under section 27 (d) of the Act.

7

3.On perusal of case record, cognizance of the offence was taken u/sec. 32 of the Drugs and Cosmetics Act and Sec. 18 (a) (i) of the Act against the accused.

4.After appearance of the accused, the case copies of documents were furnished to the accused U/sec. 207 Cr.P.C.

5.A.1 and A.2 were examined U/sec. 251 Cr.P.C and allegations u/sec. 32 of the Drugs and Cosmetics Act and Sec. 18 (a)

(i) of the Act was read over and explained to accused in Telugu, for which they pleaded not guilty and claimed to be tried.

6.In order to prove the case of prosecution, the prosecution chose to examine Pws.1 to Pw.4 and got marked Ex.P.1 to Ex.P.30. On the other hand, the defence never led any kind of evidence except depending upon the loopholes of the prosecution.

7. After closure of the prosecution side evidence, A.1 and A.2 were examined U/sec. 313 (1) Cr.P.C. by putting incriminating evidence available from the evidence of prosecution witnesses for which they denied and reported no defence evidence on their behalf.

8. The prosecution filed written arguments as per section 314

Cr.P.C. through its written arguments, the learned Assistant Public prosecutor contended that M/s Gaba Pharmaceuticals Private Limited that is A.1 and its Director Mr. Raju Gaba have manufactured and sold the drug Vomidone suspension which is not of standard quality as such this case came into existence. When Pw.1 picked up sample from M/S. Medical store, Government hospital, Anantapuramu by 8 following procedure in intimating Pw.2 in Form No. 17 and divided sample into 4 parts and all the 4 parts marked by the Pw.1, Pw.2 with their initials as such Pw.1 followed the procedure contemplated U/sec.

23 and Rule 56 (a) of Drugs and Cosmetics Rules while drawing the samples which fact is proved by the Pw.1, Pw.2 with their oral testimony coupled with support of documentary evidence which is

Ex.P.2 and Ex.P.3. The learned Assistant Public Prosecutor through its written arguments further contended that the Pw.1 sent sample analysis as per the procedure laid down under Rule 57 of the Drugs and Cosmetics rules under Form No. 18 which is Ex.P.4 by registered parcel which is Ex.P.8 and separate cover containing specimen impression of seal with form 18 by registered post which is Ex.P.9. If

Pw.1 does not follow procedure under rule 57, the government analyst might not have accepted the sample for test and as Pw.1 followed such procedure, the analyst conducted analysis over the sample and acknowledged the acceptance of sample by the government analyst sending analytical report in the form No.13 which is Ex.P.11 and this procedure does not have any lacunas and lacunas if found are minor in nature need to be ignorable and prays the court to consider those facts. It is further argument of the learned Assistant Public Prosecutor through the written arguments that there is no dispute regarding the

Vomidone suspension B is a drug manufactured according to the provision of 3 (b) of Drugs and Cosmetics Act and its standard should be in accordance with the names prescribed in the act and A.1 firm is holding licence in Form No. 27 to manufacture the said drug along with other drugs and also licence up to 31-12-2011 in Form No. 26 and the same is proved by way of Ex.P.24 which is form No. 26 . The learned Assistant Public Prosecutor further argued that there is no dispute that Sri Raju Gaba (A.2) is the directors of the firm 9 incorporated as accused as he is only responsible for the day to day activities of the company and Smt. J. Gaba are sleeping directors under Ex.P.26. It is further contention of the learned Assistant Public

Prosecutor that is it is established that firm of A.1 and its director Raju

Gaba that is A.2 are responsible for day to day activities of A.1 firm and the said A.1 firm manufactured and selling not standard quality of drugs of Vamidone suspension of batch No. 2 and contravened Sec.

18 1940 as such they are punishable Usec. 27 (d) of the Act. The manufacturing and sale of Vamadone suspension batch No.2 was proved by the voluntary admission of A.1 firm in the letter sent to the

Drug Inspector which is Ex.P.24 then A.1 firm also submitted manufacture and analysis record of the above drug and subsequently sale of drug to M/S Managing Director APHMHIDC Executive Manager

Central Drug Stores, Anantapuramu as per the Ex.P.24 letter, the same is acknowledged by the Pw.2 by stating that the Government

General Hospital, Pharmaceuticals received the said drug from the A.1 firm as such by oral evidence of pw.2, pw.3 and pw.4 coupled with documentary evidence that is Ex.P.14 and Ex.P.19 prove the use of such drug by the government General hospital medical stores to sell the same to the public as such A.1 and A.2 are responsible for the manufacturing of un standard drug of vomidone suspension batch No.

2. Through the government analyst report under form No. 13 under

Ex.P.11 and report of the Director Central Laboratory under Ex.P.13 proves A.1 firm manufactured not of standard quality and thus A.1 and A.2 are liable for punishment jointly and severally. It is further argument of the learned Assistant Public Prosecutor that during the cross examination of Pw.1, it was suggested that Pw.1 was not notified for the local area of the Anantapuramu and he has not filed any such notification to prove his appointment for enabling him to conduct such 10 raid and conduct such samples as per the drugs and Cosmetics Act.

She further argued that it is not correct because of Pw.1 files appointment of inspector published in Andhra Pradesh Gazette

Notification wherein he was appointed U/sec. 21 having jurisdiction for state and Anantapuramu District also false under the receipt of A.P.

is having jurisdiction for it. The government employees are got transfers throughout the state from time to time as per the rules , the government of Andhra Pradesh notified the Drug inspector to entire Andhra Pradesh in order to avoid publishing in Andhra Pradesh for every transfer of each Drug Inspector and she relied upon the judgment reported in ;

9. Ramlal Singh Vs. State of Bihar reported in Crl. Revision

Petition No. 625 of 1956 decided on 16-5-1958 Patna High Court,

K. Sahai and P.K. Clemdhari , equivalent citation AIR 1960 Patna 243 and also relied upon the judgment reported in;

10. Public Prosecutor Vs. Hatabram Bai and others in Crl. Appeal

No. 565/1965 of Hon’ble High Court of Andhra Pradesh.

11. It is further argument of the learned Assistant Public

Prosecutor that when the investigation done by Pw.1 is illegal the court cannot take cognizance of the same and when the cognizance taken and the case is dealt with by way of trial then any lapse on the part of investigation or any entitlement investigation cannot be brushed away the entire case of the prosecution since it is mere irregularity which can be cured as per section 437 of Cr.P.C. and prays the court to convict the accused as per the law by taking into consideration.

11

12. On the other hand, the defence counsel filed detailed written arguments which run into 355 pages including citations.

The first limb of arguments of the defence that the accused No.2 is not responsible for the day to day affairs of the firm and the manner of involvement of A.2 not described in the complaint and even in the evidence adduced by the prosecution. He further argued that Pw.1 who filed complaint against A.2 and A.3 attributing the offence against them did not make any specific pleadings about the manner of connection of the offence with the accused No.2 and further in the cross examination at para No.7, Pw.1 admits that he had not any impact of A.1 firm and had not investigated with the register of the company as to on the date of manufacturing of drug to show that the accused No.2 is the person in charge of affairs of A.1 firm. He further submitted through written arguments that Pw.1 admits that the accused No.2 name was implicated on the strength of Ex.p.26 the statement given by A.2 himself and Ex.P.26 clearly shows that A.2 was responsible for the day to day affairs of A.1 firm from 28-8-2008 but not on the date of manufacturing of the drug Dt. 8-12-2006 and thus A.2 is not responsible and criminal liability cannot be fastened.

13. He relied upon the judgment reported in 1998 (2) ALT (Crl.) 92 Supreme Court of India between the State of Haryana Vs. Brizlal

Mittal and others.

14. The learned counsel for the defence through his written arguments further submitted that except bald statement in the complaint that the accused are directors of the manufacturing but there is no other allegation to indicate even prima facie that A.2 is in charge of the company and also responsible for the company of the 12 conduct of its business and he relied upon the judgment reported in

2005 (2) ALT (crl.) 13 A.P. between M.S. Hippo Laps Private

Limited, Secunderabad and others Vs. State of A.P. It is further argument of the learned counsel for the defence that as per section 34 of Drugs and Cosmetics Act and unless and until the prosecution makes averment and produced the evidence to the effect that the concerned director was in charge and the responsible to the conduct of the business the prosecution cannot lie such director against whom no such evidence is produced and he relied upon the judgment reported in 1999 Crl.L.J. 4449 Bombay High Court, 2000(2) ALD

Crl. 522 A.P., 2005 (1) ALD (Crl.) 956 A.P., 1985 Crl.J. 1372 and

1983 Crl. L.J. 159 S.C. It is further written arguments of the defence counsel that the complainant failed to produce material evidence to show that the accused No.2 was the director of accused No.1 firm at the material point of time that is on 8-12-2006 and he argued that the drug manufacturing license which was marked by Pw.1 shows that it was the licence copy to manufacture the subject drug from 1-1-2007 to 31-12-2011 and subject drug manufactured as per Ex.P.24, Ex.P.25,

Ex.p.27, Ex.P.28, on 3-12-2006 and there is no evidence that the drug manufactured at the time i.e., on 8-12-2006 A.2 was the director at that time and there is no such reflection in the Ex.p.24 drug licence copy. He further argued that Ex.P.26 it is undertaking of A.2 claiming that he is responsible for the affairs of the firm from the date 28-8- 2008 which is not at all the notarized stamp affidavit, and thus Ex.P.26 does not having any sanctity at all and even otherwise it is self incriminating evidence which is not permissible under the law. He further argued that at best and utmost the complainant himself secure articles of association and other documents during the course of his investigation but not by relying only on Ex.p.26, complaint cannot be 13 filed and even complaint not maintainable. He further argued that

Pw.1 deposed that he had not investigated with the register of the company, that on the date of manufacturing of drug who was the person of in charge of A.1 firm and he further admitted that he has implicated against A.2 on the strength of only Ex.P.26 which is a statement given by A.2 only. It is further argument of the learned counsel for the defence through written arguments that the accused

No.2 is not manufactured as such he is not liable for making of the drug and it actually produced by the technical persons only who were approved by the licensing authority but here A.2 was not technical person and not approved by the licensing authority, as such he is nothing to do with the process of making drug and under these circumstances technical staff only is called as manufacturers and the something is categorically admitted by the Pw.1 in the cross examination that there are technical staff approved by the licensing authority to manufacture the drug in the A.1 firm. If so A.2 cannot be made as liable for the manufacturing process done by staff of A.1 firm who having technical knowledge or skill about manufacturing.

15. He relied upon the judgment reported in 2010 (1) ALD (Crl.) 195 A.P. It is further argument of the learned counsel for the defence through his written arguments that even A.2 is not vicariously liable for A.1’s firm, since Accused No.2 Director of A.1 firm in the year 2008 only but the director under the dispute manufactured in the year 2006, hence even vicariously A.2 is not liable to be prosecutable.

Further during the course of trial, pw.1 did not depose incriminating words against A.2 and no documentary evidence was adduced which is incriminating in nature against A.2 and it is also not averred in the complaint that any negligence or connivance can be found against 14

A.2 to make him vicariously liable and he relied upon the judgment in 2010 (2) ALT (Crl) 55 (S.C).

16. The Second limb of defence written arguments is that as per section 32 (1) no court shall take cognizance of offence except the complaint is instituted by the inspector or a person aggrieved or recognized consumer associated whether such person is a member of that association or not but Pw.1 instituted proceedings claiming that he was the inspector of area and if so as per section 3

(e) ii, the said Pw.1 himself has qualifications mentioned as per section 3 (e) ii as inspector which means inspector in relation to any other drug or cosmetics, the inspector appointed by the Central Government or

State Government under section 21. It is further argument of the defence that Pw.1 was not the inspector appointed U/sec. 21 for the reason that Pw.1 not authenticated to issue proceedings. On the other hand, Pw.1 being a complainant categorically made mention in the pleadings of the complaint in the first para itself, when one P.

Kailasam, presently working as Assistant Director Drug control

Administration, Anantapuramu and holding in charge of the post as

Drug Inspector acted as drug inspector for the area operation of

Anantapuramu and further he also categorically admitted in the deposition that on the filing of the complaint i.e., on 4-5-2010 he was not the Drug Inspector for Anantapuramu to hold in charge and to support his contention, he did not adduce any documentary evidence to substantiate his claim that he was holding in charge of

Anantapuramu area operation as drug inspector and absence of such evidence, it can be presumed that there was no orders putting Pw.1 into the in charge to the post of Drug Inspector, Anantapuramu as per section 114 (g) of Indian Evidence Act. It is further argument of the 15 learned counsel for the defence that the Pw.1 is not a Drug Inspector as defined U/sec. 3 (e) ii of Drugs and cosmetics Act 1940 and the institution of proceedings by him is only without jurisdiction as per the section 3 (e) ii of Drugs and Cosmetics Act 1940. Therefore the proceedings vitiated abinitio. It is further argument of the defence that mandatory section 21 of Drugs and cosmetics Act 1940 required the Central Government or State Government to appoint the Drug

Inspector and prescribed the duties to be exercised and performing functions with respect to such area and drugs and classes of drugs but the contention of the Pw.1 that he was appointed as Drug Inspector from 15-3-2007 to 27-7-2009 for the area of Anantapuramu. It is also contended that he was not the drug inspector for the area as on the date of filing of the complaint i.e., on 04-05-2010. But Ex.P.1 is single paper document without head and trunk and it is moreover Photostat copy marked without following procedure contemplated U/sec. 65

Evidence Act for adducing secondary evidence. Hence Ex.P.1 is not categorically indicating the duties and powers of drug inspector to be performed and thus Ex.P.1 is not in accordance with the section 21 of

Drugs and Cosmetics Act 1940. Therefore, the contention of the pw.1 through Ex.P.1 that he derived the powers to take samples of the subjected drug is false contention are liable to be discarded and

Ex.p.1 is not lending support to his contention. It is further argument of the defence counsel that pw.1 categorically admitted in the cross examination that Ex.p.1 was issued at the time of his appointment in the year 1986 and after his first appointment, he was shifted to different places. If so, Ex.P.1 does not have any authenticity or any proof to show that he was appointed as drug inspector for the

Anantapuramu area or at least put as in charge for the

Anantapuramu area as drug inspector from the dates of 15-03-2007 16 to 27-07-2009 and on 04-05-2010. It is further argument of the defence counsel that Pw.1 claimed that he became Drug Inspector of

Anantapuramu on 15-03-2007 and in support of his contention, no gazette notification filed to satisfy section 21 of Drugs and Cosmetics

Act 1940. It is further argument of the learned counsel for the defence that the contents of Ex.P.1 would go to show that initially he was appointed as the Drug Inspector in the department of Drug control administration State of A.P. vide G.O.M.S No. 103 Health and Medical and Family welfare (L-2) Dt. 06-03-1986 but as required under section 21 of Drugs and cosmetics Act, the duties to be performed to be exercised by the drug inspector, this incumbent officer with respect to such area and the drug and clauses of drugs which are not indicated in his appointment under Ex.P.1. He further argued that Ex.P.1 not categorically indicates the duties and powers of drug inspector to be performed . Hence Ex.P.1 is not in accordance with the section 21 of

Drugs and cosmetics Act. Therefore, the contention of Pw.1 liable to be discarded and Ex.P.1 is not authenticated document leading support of his contention. It is further argument of the defence counsel that

Ex.p.1, more over not carries any evidentiary value as it is Photostat copy and it is a attested documents and it was accepted in the cross examination of Pw.1 that he did not explain any reason for not bringing on the record of originally of Ex.p.1 as such Ex.P.1 is not free from suspicion and thus Ex.P.1 cannot be read into evidence, for the reason that the said Ex.p.1 is Photostat copy marked without following procedure laid down in the provisions of section 63, 64, 65, 66 of Indian Evidence Act. It is further argument of the defence that it is categorically admission of the pw.1 that Ex.p.1 is multi budge documents but he produced 2 pages document by holding the other pages, except Ex.P.1 there is no other gazette notification showing the 17 allotment of the duties to both of the drug inspector of Hindupur and drug inspector of Anantapuramu for their respective local areas.

Hence the contents of Ex.P.1 cannot be taken as the evidence merely it is marked at request of the prosecution and mere marking of documents do not dispense with its proof. The ratio laid down by the Supreme Court is here under relied upon.

17. It is further argument of the defence argued that Pw.1 claiming as drug inspector from 15-03-2007 to 27-02-2009 for the area of Anantapuramu but in the cross examination, he stated that there are 3 drug inspectors in Anantapuramu at the time of lifting of samples that is on 19-4-2007 vide Ex.P.2 and local area distributing among 2 drug inspector recognition of area and operation and they must discharge their duties in the area which allotted to them but

Ex.P.1 attested document showing their appointment and there was no notification in favour of Pw.1 on the date of Ex.p.2 to operate

Anantapuramu local area. It is further argument of the learned counsel for the defence that Pw.1 also in his testimony categorically admitted that Ex.p.1 was issued at the time of first appointment in the year 1986 and during that time, he was shifted to different areas on number of occasions and Ex.P.1 there was not supported by official gazette, notification or no separate gazette notification to show that he was allotted duties of discharging functions as drug inspector in the

Anantapuramu local area and for holding full additional in charge in the year 2010 there was no gazette notification. It is further admission of Pw.1 that the director of drugs and control of administration issued proceedings to the effect that he is holding in charge for the area but he did not produce any proceedings before the court to authenticate the said fact, as such the provisions of section 22 (1) (i) and (ii) not 18 satisfied showing that he is empowered to local area as inspector to take samples from any premises wherein any drug is being sold or stock or exhibited or offered for sale or being distributed. It is further argument of the learned counsel for the defence that since Pw.1 not the drug inspector for the area of Anantapuramu at the time of lifting of samples under Ex.P.2, Ex.P.5, Ex.P.3 and Ex.P.6 on 4-5-2010 on the date of complaint which itself invalid, the samples taken under Ex.P.2,

Ex.P.5, Ex.P.3 and Ex.P.6 and filing of the case is hit by the section 22 of the Drugs and Cosmetics Act and thus Pw.1 acts of taking samples is without jurisdiction and Exp.2 to Ex.P.8 are issued by invalid appointed drug inspector. Therefore, Ex.P.2 form 17 Dt. 19-04-2007,

Ex.P.3 form 17 A Dt. 19-04-2007 and filing of the case on 4-5-2010 is in the eye of law is without jurisdiction.

18. It is further argument of the learned counsel for the defence submitted that during the course of cross examination of Pw.1, Pw.1 admits that the Director of Drugs and copy right of Drugs will allot the local area but Ex.P.1 which is filed before the court was not the gazette notification pertaining to the local area of Anantapuramu. Therefore,

Ex.P.29 is not the gazette notification and he is not to be considered as gazette notification which was issued by the general and copy right, drug control administration A.P. He further argued that when the Pw.1 categorically admitted in the chief and cross examination that there was no such gazette notification of the period supporting 15-07-2007 and 27-02-2009 for the area of Anantapuramu district, then Pw.1 instituting this case by filing the complaint is without jurisdiction. He relied upon the judgment reported in 2001 (2) 358 A.P. High Court

between M.S. Gaba Pharmaceuticals, Hyderabad Vs. State of

A.P. It is further argument through written arguments of the defence 19 that the section 21 of the drugs and cosmetics Act are mandatory in nature and from the plain reading of the section 21 makes if clear that the appointment of such person as a drug Inspector especially meant in the interest of public Health, obviously there shall be notification in the official process and that notification who indicate the area in which such Drug Inspector can exercise the power. Hence the appointment of drug inspector can only be through the official gazette notification and not otherwise and he relied upon the judgment reported in 2010 (1) ALT (Crl.) 219 A.P. High Court and also relied upon several unreported judgments. It is further arguments of the defence that appointment of gazette filed by the Pw.1 with regard to his operation of the local area of Anantapuramu under Ex.P.1 does not say he was appointed to local area of Anantapuramu and pw.1 categorically admitted in the chief examination and cross examination that he is serving as Assistant Director in Drugs and control administration in Nalgonda, as such his previously serving as Drug

Inspector for Anantapuramu 15-03-2007 and 27-02-2009 and at the time of filing case as on the date of 4-5-2010, he was Assistant

Director of Drug control Administration Anantapuramu area and in charge Drug inspector for the Anantapuramu area not proved by any sort of evidence and in turn to claim the in charge for the area of

Anantapuramu as Drug Inspector Pw.1 is without jurisdiction and the same is vitiated trial of the case of the prosecution. It is further argument of the defence that the section 32 of the Drugs and

Cosmetics Act prescribes no prosecution shall lie under the chapter except by the inspector but the prosecution not filed any sort of document between proof that he was the drug inspector as on the date of filing of the complaint and thus institution of this case became fatal and vitiated and he relied upon the judgment reported in 2007 20

(2) crimes 358 A.P. High Court 1999 Crl.L.J. 4449, Bombay High

Court 2010 (1) ALT 219 of A.P. High Court.

19. It is further argument of the learned counsel for the defence through written arguments that the law provided sufficient safeguards and also checks and balance against the acts and wrong acts of Drug

Inspector and thus law is providing sufficient raids and obligations but the drug inspector who has to follow the modes to achieve the facts in the prescribed section 32 (2), 34 (1) and 34 (2), 25 (4) (iii), 25, 23, 18, 22 of Drugs and cosmetics Act with rules 57, 46 of the Drugs and

Cosmetics act 1940 and the rules made there under, but those sections are not complied and yet without following procedure acted upon under Ex.p.30 which is analysis report ignoring of the provisions is to be prohibited as per the ratio laid down by the Hon’ble Apex

Court of India in judgment reported in A.K. Rai Vs. State of panjab reported in 1986 S.C. 2160.

20. The learned counsel for the defence argued that the Drug

Inspector violated the section 18 (a), 23 (4) (iii), 25 (2) of Drugs and cosmetics Act. 1940 by not supplying sample portion under Ex.p.11 (Form No. 13) in time and getting analysis report with delay of 524 days as manufacturing date 17-02-2006 and same is laid in analysis report. Further contesting State analysis report at Central Drug

Laboratory, Calcutta on 28-11-2008 and delaying challenging took one year 11 months and 21 days. Almost one year (expiry of the date) and not keeping subject drug under the dispute in store age of cool place which causes prejudice to the A.1 and A.2.

21. Another limb of argument of the defence that Sec. 20 empowers the State Government and Central Government by 21 notification in appropriate cases to appoint a person as prescribed as qualified government analyst. The definition coupled with section 20 of Drugs and Cosmetics Act made it clear that analyst cannot do analysis of unless he is appointed by the State Government as well as the Central government and appointment must be proved by the prosecution. He further argued the mandate of Sec. 20 of Drugs and

Cosmetics Act is that the State and Central Government shall appoint analyst through gazette notification otherwise, no one to say who is the authors of Ex.p.11 and Ex.P.30 are government analyst, there is no gazette notification for the appointment of government Analyst who gave Ex.p.11, Ex.P.30 respectively. Hence the author of Ex.P.11 and

Ex.p.30 are not government analyst as there is no such notification and Pw.1 that is the complainant did not produce any gazette notification issued by the State Government and Central government that the author of Ex.P.11 and Ex.P.30 are by way of gazette notified by government. Since there is no gazette notification of the appointment of author Ex.P.11 and Ex.P.30 the said document cannot be read into evidence and cannot be relied upon. He relied upon the judgment reported in Ram Sankar Misra Vs. State of U.P. 1980 (1)

SCC 255.

AIR 1979 S.C. 727/(1980) 1 S.C.C. 255 Supreme Court.

1999 Crl. L.J 4449 Bombay High Court.

2007 (2) (Crimes) 358 A.P. High Court.

22. Another some of the miscellaneous arguments of the learned counsel for the defence by way of written arguments that

Ex.P.11 analysis report and Ex.P.30 analysis report found to be contrary and the prosecution not explained why such variance is found in the analysis report which gave raise to benefit of doubt and he relied 22 upon the judgment reported between Giridarlal Vs.State of

Rajasthan and others 2006 (2) crimes 221. Further it is argued that Ex.P.11 and Ex.P.30 not tested according to the testing specifications of manufacture. Hence Ex.P.11 and Ex.P.13 cannot be read into evidence. It is argued that the prescribed test when not followed the accuracy of the reports cannot be expected and there is glaring lacuna on the part of the prosecution that the said Vomidone suspension drug which is found to be manufactured according to the standards of British forms scopia which after recording of the sample not tested according to B.P. standard. Hence Ex.P.11, Ex.P.13 need to be ignorable. He further argued that there is no evidence adduced by the prosecution with regard to the comparison of the seals on the samples with memorandum of form No. 18 and form No.1 which contains specimen impression. He further argued that as per the rule 46 of Drugs and Cosmetics Act. 1945 the government Analyst who followed certain procedure that after the test or analysis, he shall put forth supply triplicate analysis report in form No. B to the Inspector to give with full practical of test or analysis equally applies to who caused Ex.P.11 and Ex.P.30 which got nothing was appended to it.

The analysis done by the State Analyst and Central Analyst and the rule 46 and 4 to 6 which are mandatory in nature are fail to follow those rules rakes several doubts over the analysis reports. He further argued that there is also breach of rule 57 and rule 4 of Drugs and

Cosmetics Act, rule 57 prescribes how to discharge the sample to the government analyst but the same is not followed by the Drug

Inspector. He further argued that Ex.P.2, Ex.P.5, Ex.P.15 not proved by the Pw.2 since he does not show any specimen signature of Pw.2 on

Ex.P.5 which is form No. 17 evidencing lifting of the sample. It is further argument of the leanred defence counsel that there is a breach 23 of section 23 (3) of Drugs and Cosmetics Act. 1940 requirement which prescribes the sample shall be divided into 4 portions effectively with seal and suitable mark but there is no such pleadings in the complaint of Pw.1 and also in the deposition of Pw.1 that he divided the samples and sealed them in the presence of Pw.2. Pw.2 added his seal and signature on the sample labels and on knot. There is no whisper either in the chief examination of Pw.1 and Pw.2 or in the complaint of Pws.1.

about the dividing the samples of into 4 portions. He further argued that Ex.P.26 is statement recorded by the Pw.1 claiming as investigator of the case as per Drugs and Cosmetics Act Ex.P.6 is incriminating statement obtained during the course of investigation which cannot be read into evidence in view of the 24 of the evidence Act. He further argued that storage of drug at Pw.2 cell point is not according to the conditions prescribed on the sample lifted drug. He further argued that Ex.P.30 which is form 2 shows analysis caused after expiry is of the drug as such benefit of doubt has to be given to the accused. He further argued that there is no proof available on the record to show that A.2 firm sales subjective drug to the firm of Pw.2 and Ex.P.1 which is gazette notification Ex.P.15 which is purchased invoice copy and Pw.2, Ex.P.2 is purchase invoice copy of Pw.3 not original, hence though they let into the evidence cannot be taken into consideration since it does not dispense their proof of it by mere marking of it. He further argued that as per the section 23 (4) iii prescribes that the drug inspector shall store the portion of sample seized with name and address and other particulars required to disclose under section 18 a but there is a clear breach as Pw.1 did not restore portion of sample as required and further during the course of cross examination of Pw.1 categorically admitted that he did not restore portion of sample to the A.1 and the said fact caused 24 serious prejudice to the accused as he deprived the sample portion to examine it physically and also to compare with the probable sample that can be manufactured in the firm. He further argued that as per the section 25 of Drugs and Cosmetics Act 1940 the inspector shall deliver one signed copy of analytical report which he has received as per section 25 (1) but Pw.1 acted contrary to the law since signed copy of analytical copy report not served on A.1 as such the contents of it not binding and prays the court to pass the judgment on merits.

23.Heard arguments on both sides and perused records.

24.Now the points that arise for determination are :

1. “Whether the prosecution able to prove the Pw.1 is the Drug Inspector empowered to collect the samples over the area where subjected Drug Vomidone suspension B lifted as on the date of lifting of samples?

2. Whether the complainant/Pw.1 shifted Vomidone suspension B from the shop of Pw.2 in accordance with the provisions and dealt the

sample to be sent to the Analyst as per the prescribed rules?

3. Whether the prosecution able to prove that the State and Central analyst capable to analyze the subjected drawn sample and they

were appointed by the government as per the gazette?

4. Whether the prosecution is able to prove that A.2 is responsible for the day to day affairs of the firm?

5. Whether the prosecution enables A.1 and A.2 to challenge the Vomidone suspension drug before the Central Analyst within self life time of said drug?

6. Whether the prosecution bring home the guilt of A.1 and A.2 for the offence punishable under section 32 of the Drugs and Cosmetics Act and Sec. 18 (a) (i) of the Act?

25.Point No.1 :-

The evidence of Pw.1 B. Kailasam shows that he served as Drug

Inspector in Anantapuramu from 15-3-2007 to 27-02-2009 and while he was Drug Inspector in Anantapuramu on 19-04-2007 as routine visits, he visited the Government General Hospital, Anantapuramu and visited the medical stores and collected the samples of various drugs meant for human consumption and among them Vomidone suspension batch No.2 manufactured by the Gaba Pharmaceutical Limited which manufactured on December, 2006 which contains expiry date 25

November, 2008 is lifted by him by following due procedure.By dividing the said samples into 4 parts. To substantiate his contention, he tendered GOMS No. 103 Dt. 6-2-1986 to show that he was appointed and his allotment of jurisdiction and same is got marked as Ex.P.1. On the other hand, the defence counsel severely opposed the contention of complainant contending that Pw.1 was not at all

Drug Inspector empowering to collect the Drug on 19-4-2007 in

Anantapuramu area. Weighing both contentions it is pertinent to refer what the Act says Sec. 32 (1) of Drugs and Cosmetics Act 1940 enumerates that no prosecution that need under this code shall be instituted only by Inspector or by aggrieved person or by recognized consumer association whether such person is member of that association or not.

26. So Pw.1 instituted this proceedings claiming that he was

Inspector of area. As Per Section 3 (e) (2) of Drugs and Cosmetics Act

Inspector means in relation to any other drug or Cosmetics, or the

Inspector appointed by the Central Government or state Government as per section 21. The said section clearly spells out that the inspector must have been appointed by the Central or State

Government as the case may be as per section 21. Section 21 says that the central Government or state government may by notification in official gazette appoint such person as if needs if it is having prescribed qualification to be Inspector such area as may be to assign to them by Central government or state government as the case may be. Here in this case Ex.P.1 is document of GOMS No. 103

Dt. 6-2-1986 it shows that he was appointed under the said GO and

he was allotted to the Nalgonda District to discharge his functions.

During the course of cross examination Pw.1 admitted that after Ex.P.1 appointment, he was shifted to number of areas on transfer and 26 except Ex.P.1 there is no other gazette notification to show that he was allotted with duties to the area of Anantapuramu. So Pw.1 was not

Inspector appointed U/sec. 21 for the reasons mentioned above.

Further Pw.1 categorically admitted that as on the date of filing of complaint Dt. 4-5-2010 he was not Drug Inspector of Anantapuramu and holding in charge. In support of his claim, he did not produce any documentary evidence to substantiate his claim that he was holding in charge of Anantapuramu area. Absence of any such evidence, it can be presumed that there was no such order putting or empowering the Pw.1 into in charge to the post of Drug Inspector, Anantapuramu as such the presumption available U/sec. 114 (g) of Indian Evidence

Act can be pressed into service adversely against the prosecution.

Once Pw.1 was not Drug Inspector as defined U/sec. 3 (e) (ii) of Drugs and Cosmetics Act. 1940 the proceedings filed by him is wholly without jurisdiction as per the section 32 (1) of Drugs and cosmetics

Act. Therefore the very failure of prosecution in proof of appointment as per the section 21 would vitiate the case on its inception itself.

27. The contention of Pw.1 that he was appointed as Drug Inspector from 15-3-2007 to 27-7-2009 for the area of Anantapuramu. Ex.P.1 is single paper document without having head and trunk. It is Photostat copy without marked following procedure contemplated U/sec. 65 of the act for adducing secondary evidence. Furthermore Ex.P.1 not categorically indicating details and areas of Drug Inspector to be performed. Hence Ex.P.1 not in accordance with the section 21 of

Drugs and Cosmetics Act. Therefore Pw.1 is deprived from the powers to take samples of the subjected Drug as such the very lifting of the samples is considered to be powerless, as such Ex.,P.1 is liable to be discardable. Furthermore Pw.1 claims that he became Drug Inspector 27 on 15-3-2007. In support of his contention neither he filed any support of single paper nor at least filed any GOs of government evidencing his appointment to exercise powers of Drug Inspector over

Anantapuramu area. He must admit that there was no separate gazette notification showing the allotment of duties to both of

Anantapuramu local area and area at present he is claiming to be posted and in charge. Therefore, Ex.P.1 carries no evidentiary value at all.

28. Furthermore Section 22 of Drug and Cosmetics Act shows that subjected to provisions of section 23 any rules made by the Central

Government in this behalf an inspector may within the local limits or area for which local area can inspect and can draw the samples and he is empowered some other duties also as per the section 22.

Here the emphasis is legal limits of the area for which he is appointed. Admittedly as per Ex.P.1 on the date of Ex.P.2 , Exs.P.5,

Ex.P.3 and Ex.P.6 and filing of the complaint on 4-5-2010 Pw.1 was not

Drug Inspector as defined U/sec. 3 (e) (2) of Drugs and Cosmetics Act.

Therefore he was taking samples under the above document and filing charge sheet hit by section 22 and his acts are ultravirus since it done without having any jurisdiction. Furthermore one can consider that Ex.P.1 to Ex.P.8 is not legally issued by the valid appointed Drug

Inspector. Ex.P.2 to Ex.P.8 mostly assume and presume that it was issued by the invalid Drug Inspector. Therefore Ex.P.2 form No.17 Dt.

19-4-2007 Ex.P.3 form No. 17 a and filing of the case on 4-5-2010 is nonest in the eye of law.

29. In 2007 (2) crimes 358 A.P. High Court,. the Hon’ble High Court observed that where accused during the trial U/sec. 27 of Drug and 28

Cosmetics Act disputed the appointment of Public Analyst and appointment of Drug Inspector for that particular area and the prosecution did not produce relevant notification, conviction could not be sustained.

30. In 2010 (1) ALT 219 A.P. High Court, the Hon’ble High Court clearly observed that “main submission is non filing of any notification duly inviting area under which Drug Inspector was authorized to discharge the duties and in the absence of any such notification entire proceedings illegal and improper. The above said judgment clearly came to the rescue of defence since Ex.P.1 clearly spells out his appointment as Drug Inspector for Nalgonda area but not to the Anantapuramu area. Hence the entire case suffered with severe infirmity. Further Pw.1 is also not competent to launch the prosecution. Section 32 says that the prosecution must be launched either by the Drug Inspector or some other persons whose nature mentioned in section 32. If the complaint is instituted by Pw.1 who fails to show that he was appointed as Drug Inspector as per the requirement of section 21 which would became fatal to the entire case. In view of the above supra discussion, this point is accordingly answered against the prosecution.

31. Point No.2: Whether the complainant/Pw.1 shifted

Vomidone suspension B from the shop of Pw.2 in accordance

with the provisions and dealt the sample to be sent to the

Analyst as per the prescribed rules?

32. Point No.2. Pw.1 T. Kailasam claiming to be Drug Inspector for Anantapuramu area after visiting the shop of Pw.2 on 19-4-2007 29 shifted the samples of Vomidone suspension batch No.2. Apart from other drugs and divided the Vomidone suspension batch No.2 manufactured by the Mr. Gaba Pharmaceutical Limited into 4 parts and packed properly and each portion containing 30 ml. drug and followed the procedure contemplated under the law for collecting the samples by issuing intimation in form No. 17 to the Pw.2 and handed over one of the samples to him and obtained acknowledgment for the receipt of said sample and also issued receipt evidencing his collecting the sample from the Pw.2 in form No. 17 . To that effect he also claimed to obtained acknowledgment and also drawn proceedings evidencing his inspection and collection of purchase of invoice. But during the course of cross examination, Pw.1 admits that he had not inspected the premises but he shifted the samples. How can it be possible is question before the court which cannot be answered by the prosecution plausibly. More over Pw.1 admits in the cross examination that he did not note down the stock position of the drugs and at the time of lifting the subjected drug into 4 parts of samples. Moreover he claimed that at the time of lifting of sample, his attender assisted in lifting the sample but the said person not chosen to examine on behalf of the prosecution. Moreover he himself admitted that he did not draw any observation regarding the store. At least he did not record the temperature of the said store to show that the drug was stored in a requisite conditions. When the evidence of

Pw.1 stood like that, if the evidence of Pw.2 is perused , he deposed that on 19-4-2007 Pw.1 came to government General hospital,

Anantapuramu medical store to verify the stock and at that time, he was in charge to the medical store and lifted the several drugs including vomidone suspension B batch No.2 and accordingly Pw.1 issued form No.17 to him evidencing that he collected above 30 samples and Pw.1 also handed over one portion of the sample to him and he signed in the form No. 17 a by acknowledging the receipt of sample. But during the course of cross examination he admits that all the drugs are kept in the room in normal temperature and Pw.1 not measured the room temperature in the store as on the date of his visit. He further admitted that vomidone suspension syrup pouch and wrapper which contains the precaution that drug should be kept in standard environment and to keep in cool place.

33. Law provides several and sufficient safeguards and also checks and balance against vexatious and wrong acts of the Drug

Inspector. Equally provides the powers to draw the sample but those drawing of the samples must be in accordance with law. The procedure prescribed in 32 (2) 34 (1), 34 (2), 25, 25 (4) iii 23, 18, 22 rule 57 and 46 of Drugs and Cosmetics Act 1940 and rules are mandatory the Drug Inspector, but Pw.1 seems to be not followed such procedure, yet without following such procedure by acted upon

Ex.P.30 issued by the Central Analyst. Ignoring all the mandatory provisions which are necessary Pw.1 launched this prosecution is illegal . The date of lifting the sample is 19-4-2007. The date of expiry of subjected contains on the bottle is November, 2008. The second analysis was done in laboratory of Calcutta on 28-11-2008. The delay of testing one year 11 months 21 days is clearly noticeable. So the mode of delay is also one of the factors which shows the procedure contemplated U/sec. 18 (a), 23 (4) (3) 25 (2) of Drugs and Cosmetics

Act. 1940 not followed. Rule 57 of Drugs and Cosmetics 1945 prescribes that the portion of sample or the container sent by the government for analysis. For analysis under sub section 4 of section 23 of Act, Shall be signed by the registered post or by hand in seal 31 packed, enclosed together with memorandum in form No. 18 , in outer cover address to the government analyst mandatory. Further it describes a copy of memorandum and specimen impression of the seals used to see the part shall be sent to the government analyst separately by registered post or by hand. Whereas rule 4 prescribes that discharge of the sample for the test and analysis. According to it, sample for test or analysis as per section 4 and Sec. 25 of the act shall be sent by registered post in a sealed pocket, enclosed together a memorandum in form No.1 in outer cover address to the Director.

Further the pocket as well as outer cover shall be marked with distinguished form and so on so far. The requirement under rule 57 rule 4 are that sample shall be sent enclosed together with memorandum in form No. 18 to the state Government Analyst and in form No. I the Central Government analyst. After that the copy of memorandum shall be sent separately. From the contents of the complaint and evidence of Pw.1 does not suggest or disclose that Pw.1 followed said mandatory provisions. Ex.P.12 which is form No. 17 issued by the Pw.1 in the presence of Pw.2 by dividing the samples in his presence whereas Ex.P.15 is said to be purchased voucher from

Pw.2 taken by the Pw.1 but in the Pw.2 cross examination ,Pw.2 categorically admitted that he was himself alone employee and there are 30 employees are manufacturing drug store in government general hospital, Anantapuramu and there are 3 rooms in the drug store. Pw.1 did not prepare any rough sketch declaring that Pw.2’s

Drug store situated in a particular area. Further Pw.2 stated that

Ex.P.2 which is form No. 17 not caused to mention from which rooms sample was collected in the in the drug store. Further neither Ex.P.2 nor Ex.P.5 and Ex.P.15 proved by the Pw.2. Further Ex.P.5 does not show any specimen signature of Pw.2 and thus testimony of Ex.P.2 and 32

Ex.P.5 clearly shows that Pw.1 issued a form No. 17 in which the drug said to be taken by the Drug Inspector of Anantapuramu from the hospital not from the shop for the purpose of test and analysis.

Further Pw.2 chief examination clearly reveals that Pw.2 also did not sign on each container of drug which was alleged to be seized from the government hospital medical store. Under the above supra discussion, it is clearly culled out that there are several breaches done by the Drug Inspector at the time of lifting of sample. So these lacunas mars the process of lifting of the sample.

34. As per the section 23 (3) of Drugs and Cosmetics Act, the sample shall be divided into 4 parts effectively with seal and suitable mark but there is no such pleadings in the complaint of Pw.1 or deposed in the chief examination that he divided the samples and sealed them in the presence of Pw.2 and Pw.2 added his seal and his signature on the same label and cartons. Further the testimony of

Pw.2 does not disclose that Pw.1 being the Drug Inspector divided samples into 4 parts in his presence and sealed the same in his presence by putting signatures on them. It is pertinent to refer the

judgment in 1986 Crl. J. 2037 of S.C. wherein the Hon’ble S.C.

held at para No.10 and 8 held that” Where a power is given to do certain things in a certain way, the thing must be done in that way or not at all. Other remarks of performance are necessarily forbidden”.

The said judgment clearly declares that the ways prescribed by the act must be followed and strict adherence shall be given in pursuing the process of drawing the sample but here in this case, the above stated lacunas present on the part of the Pw.1 in lifting the samples drove me to suspect the case of the prosecution. Hence this point is accordingly answered against the prosecution.

33

35. Point No.3: Whether the prosecution able to prove that

the State and Central analyst capable to analyze the

subjected drawn sample and they were appointed by the

government as per the gazette?

36. Section 20 of the Drugs and cosmetics Act. 1940 states that the government by notification in the official gazette appoint such persons who are fit having prescribed qualification to be a government analyst for such area in the state and in respect of such drug or clauses of drug or such cosmetics or clauses of cosmetics as may be specified in the notification. So also section 20 (2) states that Central government may also by notification in the official gazette appoint such person as thinks fit having prescribed qualification to be government analyst in respect of such drug or clause of drug or such cosmetics or clause of cosmetics as may be specified in the notification. Section 20 (1) empowers state government to appoint analyst for the state whereas section 20 (2) empowers the Central

Government to appoint analyst for central government. But here in this case there is no gazette notification to prove the appointment of state government analyst and central government analyst to show that the authors of ex.P.11 and Ex.P.30 are empowered to analyse the subjected drug. So the author of ex.P.11 and Ex.P.30 are not government analyst . Pw.1 being the complainant did not produce any gazette notification issued by the state government and central government saying that authors of Ex.P.11 and Ex.P.30 gazette notified government analyst since there is no gazette notification to prove appointment of author of Ex.P.11 and Ex.P.30. The said document cannot be read into evidence and cannot be relied upon 34 also. In 1997 S.C. 727 between Ramsankar Misra Vs. State of Uttara

Pradesh, the Hon’ble Supreme Court observed that section 20 and definition makes it clear that government analyst would include all analyst appointed by the state government as well as by the Central

Government. It is not disputed that the Director of Central Laboratory is also government analyst to be in accordance with the section 20 of Drugs and Cosmetics Act”. In 2007 (2) crimes 358 A.P. High

Court, the Hon’ble High Court observed that the provisions of Section 20, 21 of the Act have not been complied with in spite of the fact that the accused raised objection before the trial court. It is expected that the prosecution to produce the gazette notification since the gazette notification has to be in the official gazette has not been produced before the court below illegal and improper finding are given.

In view of the jurisdiction of the notification and analyst has been taken, there is no need to adjudicate other grounds. The Judgment liable to be set aside accused person acquitted”.

37. The above judgments clearly came to rescue of the defence wherein it is clearly contemplated that observation of section 20 is must. Hence it is burden casted upon the prosecution to prove that authors of Ex.P.11 and Ex.P.30 are the state and central government analyst respectively by filing gazette notification but the prosecution utterly fails to do so.

38. Apart from that Ex.P.11 and Ex.P.30 cannot be read into evidence since it is issued by the invalid appointed by the government analyst. Even assume that those analyst are appointed by the government but the variance and difference in analysis reports of

Ex.P.11 and Ex.P.30 which is not explained by the prosecution plausibly 35 gave raise to benefit of doubt. The reason is that Ex.P.11 is form No.

13 issued by the State government analyst declaring that domperidone in Vomidone suspension 0.76 Mg/1ml. whereas in

Ex.P.30 form number which is issued by the Central government analyst reveals that Assay of domeperidon in vomidone suspension is 0.6772 Mg/ 1ml. The said variance when not explained though it is minor differences between them but it rakes several doubts since under point No.2 , I clearly gave finding that there are procedural lapses in drawing samples and also the very storage of drug not in accordance with the caution given by the manufacturer. Hence

Ex.P.11 and Ex.P.30 cannot be read into evidence and even if at all read into evidence, the different between 2 exhibits gave rise to the benefit of doubt. Furthermore Pw.1 admits that British Pharmacy analysis procedure followed for this vomidone suspension but Ex.P.11 and Ex.P.30 shows the method of HPLC (Ref) Indian Drug 41 (10) 2004 p-604-608 is said to be followed. So variance is bound to occur when different procedures are adopted by the manufacturer and analyst.

Furthermore apart from Ex.P.11 and Ex.P.30 not tested according to the testing specifications of the manufacturer but the analyst of both the central and state not sent protocols observed by analyst while analyzing the drug that sent for analyst. Absence of such protocol list along with Ex.P.11 and Ex.P.30 respectively also rakes several doubts, over the very genuinity of Ex.P.11 and Ex.P.30. In 2006 (2) crimes 221

Rajasthan High Court observed that “the prosecution fails to explain the satisfactorly the difference between two reports. Hence the benefit of doubt has to extend to the accused. The prosecution did not try to explain about the differences between the two reports. Therefore the accused entitled for the benefit of doubt”. The above said judgment clearly support the version of defence. Hence the accused also 36 entitled for benefit of doubt of doubt. Hence this point is accordingly answered in favour of the defence as against the prosecution.

39. Point No.4: Whether the prosecution is able to prove

that A.2 is responsible for the day to day affairs of the firm?

40. In order to prove that A.2 was responsible for the day today affairs of the date of manufacturing Drug, the complaint is very silent regarding A.2’s capacity as on the date of manufacturing of drug. In cross examination of Pw.1 at para No. 7 he admits that he had not collected any memorandum, articles of association of A.1 firm and also had not inspected with register of case that on the date of manufacturing of drug who was the person in charge of A.1 firm.

Further Pw.1 admits that A.2 name was implicated only on the strength of Ex.P.26 which is statement given by A.2. On perusal of

Ex.P.26 which shows that A.2 gave statement that he was responsible for the day to affairs of said company as on the date of 28-8-2008.

But he did not admit that he was responsible for the day to day affairs manufacturing of the drug Dt. 8-12-2006 the Vomidone suspension B which is subjected matter in this case is said to be manufactured as per the case of the prosecution is 8-12-2006 but Ex.P.26 shows he is only responsible for the affairs of A.1’s company from 28-08-2008 that is so Ex.P.26 also eliminates the case against A.2. Thus the vicarious liability of a person that is A.2 for being prosecuted for the offence committed under the act arises, if at the material time, he was in charge and was responsible for conducting of its business. Simply because the person the director of company it does not necessarily mean that he fulfils both above requirements so as to make him liable.

Without being a Director, a person can be in charge of responsible to the company for conducting of its business, he cannot be made to be 37 roped into the case. The complaint is exhibiting bald statement that

A.2 was Director as on the date of manufacturing but there is no other allegations is indicated to show that he was responsible to the company for conducting of its business.

41. In 2005 (2) ALT Crl. 13 A.P. High Court between M/S Hippo

Laps private lmite Secunderabad and others Vs. State of Andhra

Pradesh, the Hon’ble High Court held that petition by A.2 to A.5 to quash the proceedings in C.C. 733/2003 on the file of the Hon’ble

Judicial Magistrate of First Class, Srikakulam which is registered U/sec.

18 (a) (16) r/w Second schedule of Drugs and Cosmetics Act. 1940 liable to be quashed for the reason that from A.1’s company though

A.2 to A.5 are directors of A.1 but they are not vicariously liable since they are not in charge of the day to day affairs of the company and accordingly proceedings against A.2 to A.5/ petitioners quashed”. The above said judgment clearly came to rescue of A.2, as A.2 is only the

Director from 2008 onwards only. Furthermore unless and until the prosecution makes averments and to that effect produced the evidence that concerned Director that is A.2 was in charge and responsible to conduct the business and failure to brought such evidence on the record is absolutely mars the case and thus A.2 is not liable for prosecution. Further the drug manufacturing licence which was marked by the Pw.1 shows that it was a license copy to manufacture the subjected drug from 1-1-2007 to 31-12-2011 and subjected drug manufactured as per Ex.P.24, Ex.P.25, Ex.P.27, Ex.P.28 is on 8-12-2006 . So there was no evidence that the drug manufacturing time i.e., 8-12-2006, A.2 was Director at that time.

Furthermore A.2 is not technical person and not approved by the

Licensing Authority is nothing to do with the process of making the 38 drug in such circumstances, the technical staff only is called as manufacturers. The said aspect also admitted by the Pw.1 in the cross examination itself stating that the technical staff approved by the licensing authority to manufacture drug in A.1 firm. If so A.2 not responsible for such manufacturing.

42. In 2010 (1) ALD Crl. 195 A.P. it was observed that “

Therefore I find that the petitioner A.3, A.4 and A.6 who are mere partners of A1 firm and who have nothing to do with the manufacturing process cannot be impleaded in the complaint for punishing them”.

So the said judgment also came to rescue of the A.2 and thus A.2 not at all responsible for the manufacturing of the subjected drug as on the date of 8-12-2006. Hence this point is accordingly answered against the prosecution and goes in favour of the defence.

43. Point No.5: Whether the prosecution enables A.1 and

A.2 to challenge the vomidone suspension drug before the

Central Analyst within self life time of said drug?

44. The date of manufacturing of drug is 15-12-2006 and the raid was conducted on 19-4-2007. Expiry date put on the subjected drug is 19-11-2008. When the subjected drug self life time is fixed up to the November, 2011 that too with specific date of 19-11-2008 but under Ex.P.30 the sample was received for the analysis on 19-11-2008 and analysis was done on 28-11-2008 that is after expiry of self life drug and thus Ex.P.30 cannot be taken into consideration. The said

Ex.P.2 is not at all fit for analysis on the fag end day of November, 2008. The mandate of Sec. 23 (4) (3) is that the drug Inspector shall restore the portion of sample whose name, address and other 39 particulars have been disclosed U/sec. 18 (a) but the Drug Inspector i.e., Pw.1 though voluntarily disclosed the source of supply according to the requirement of section 18 (a) , Ex.P.16 letter Dt. 28-07-2008 addressed to the Executive Engineer APHM HIDC drug Store,

Anantapuramu and got requisite document that sought from the said

Executive Engineer of Anantapuramu. Those documents categorically mentioned at para 3 that the subjected drug has been received from

A.1 firm. If so A.1 firm is entitled for receiving for a portion of sample under section 23 (4) (3) of Drugs and Cosmetics Act. 1940 but the

Pw.1 did not restore the portion of sample as required. Further during the course of cross examination of Pw.1 he categorically admitted that he did not restore the potion of sample to A.1 . The said act of the complainant caused serious prejudices to the accused as such he deprived the sample portion to examine it physically and also to compare with the control sample kept in manufacturing place.

45. In 1993 (1) crimes 739 AP the Hon’ble High Court observed that “in the circumstances this case where the Revision Petitioner was prejudiced due to non compliance of mandatory provision of

Sec. 23 (4) (iii) of 25 (2) and (4) of the act and consequently , the

Revision Petitioner is entitled to acquittal”.

46. In a similar manner the judgment reported in 2005 (1) ALT (Crl.) 227 it was observed that “ On appreciation of evidence, a clear finding had been recorded that the mandatory provisions of section 23 (4) of the Act had been complied and the same had been contravened and thus the limited question for which but the matter was remitted back had been answered by the learned magistrate in favour of the respondent accused and an order of acquittal had been 40 recorded para (13) the above two judgments squarely applies to the factual situation of the case and thereby it is crystal clear the prosecution not enable A.1 or A.2 to exercise their rights U/sec. 23, 25 of the act and thus the prosecution fails to establish that one of the samples was parted with the accused so as to enable them to exercise their right to challenge first analyst before the Central Analyst within self life time of the drug. Furthermore there is gross breach of requirement of section 25 of Drugs and Cosmetics Act 1940. There is no evidence on the record to show that the government analyst report which obtained in triplicate was sent or served on the accused within the reasonable time fixed by the Act to enable A.1 and A.2 to utilize their right to exercise to challenge the said government analysis report. The evidence clearly reveals that the form No. 13 which is analysis report which is in triplicate which got marked Ex.P.11, its copy was delivered to Pw.2 and remaining copies that is triplicate delivered to manufacture drug store APHM HIDC Anantapuramu along with Ex.P.16. Therefore, Pw.1 deposed for analytical report in triplicate. But as per the section 25 (2) whose name is disclosed

U/sec. 18 (a), the source of supply, then the Drug Inspector shall deliver one of the copies to him but in the case on hand as per the pleadings in the complaint and testimony of Pw.1 as per Ex.P.12, A.1 name and address though got but Pw.1 fails to deliver single copy of analytical report in form No. 13 to A.1 and thus he acted contrary to the law.

47. In the above circumstances , I feel that the prosecution not enabled the accused to exercise their right to challenge state government analyst before the Central Analyst within self life time of 41 the drug. Hence this point is accordingly answered against the prosecution in favour of the accused.

48. In view of the points No.1 to 5 , I feel that the prosecution fails to establish the guilt of the accused beyond all reasonable doubt and the lacunas on the part of the prosecution tilt me towards acquittal.

49.Point No.6: Whether the prosecution bring home the

guilt of A.1 and A.2 for the offence punishable under section 32 of

the Drugs and Cosmetics Act and Sec. 18 (a) (i) of the Act?

In the result, A.1 and A.2 are found not guilty for the offence punishable U/sec. 32 of Drugs and Cosmetic Act 1940, 18 (a) (i) of the

Act. Hence they are acquitted u/sec.255(1) Cr.P.C. The bail bonds of accused if any shall be cancelled after six months from the date of this judgment.

Dictated to Personal Assistant, transcribed by him,

corrected and pronounced by me in open Court, this the 8th day of

December, 2015.

Sd/- M. Bujjappa,

Addl. Judl. Magistrate of First Class, Anantapuramu.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

PROSECUTION DEFENCE

PW.1 T. Kailasam.

PW.2 V. Ramachandra Achari. - None –

PW.3 J. Eswar Reddy.

Pw.4. Dr. Jagannath, Civil Surgeon.

EXHIBITS MARKED FOR PROSECUTION

42

Ex.P.1 GOMS No. 103, Dt. 6-2-1986.

Ex.P.2Form 17 Dt. 19-4-2007 served on Lw.2 A. Ramachandra

Achari. Ex.P.3Form 17 Dt. 19-4-2007 served on Lw.2 A. Raachandra

Achari. Ex.P.4Form 18 Dt. 20-04-2007 submitted to the government analyst. Ex.P.5Acknowledgment in Ex.P.2.

Ex.P.6 Acknowledgment in Ex.P.3.

Ex.P.7 Form 18 with covering letter addressed to government analyst Dt. 20-04-2007. Ex.P.8. Registered parcel receipt Dt. 20-04-2007.

Ex.P.9 Registered post receipt Dt. 20-04-2007.

Ex.P.10.Covering Letter from government analyst Dt. 28-6-2008.

Ex.P.11 Analyst report Dt. 28-6-2008 in from 13

Ex.P.12Letter addressed to Lw.3 Jagannath Dt. 10-7-2008.;by

Ex.P.13 Acknowledgment in Ex.P.12.

Ex.P.14Letter addressed by Lw.3 Jagannath Dt. 24-7-2008

Ex.P.15. Purchase invoice furnished by Lw.3 Jagannath bearing No.

061345. Ex.P.16.Letter addressed o the Executive Engineer, APHM HIDC Dt.

28-7-2008. Ex.P.17 Acknowledgment in Ex.P.16.

Ex.P.18 Inspection report Dt. 1-8-2008.

Ex.P.19 Letter addressed by Lw.4 Eswar Reddy Dt. 1-8-2008.

Ex.P.20 Purchase invoice bearing No. 748 Dt. 15-12-2006.

Ex.P.21 Letter addressed to A.1 Dt. 4-8-2008.

Ex.P.22 Registered post receipt Dt. 5-8-2008 for Ex.P.21.

Ex.P.23 Postal acknowledgment for Ex. P.21.

Ex.P.24.Letter received from A.1 Dt. 12-8-2008.

Ex.P.25.Letter addressed to A.1 Dt. 28-8-2008

Ex.P.26. Statement of A.2 M. Raju Gaba Dt. 28-8-2008

Ex.P.27Letter given by Smt. Neeraja Dt. 28-8-2008

Ex.P.28Statement of Shareef Basha Dt. 28-8-2008.

Ex.P.29Prosecution sanction order Dt. 20-08-2008

Ex.P.30Second analyst repot from Central Drug Laboratory

Dt. 28-11-2008.

43

EXHIBITS MARKED FOR DEFENCE

NIL.

MATERIAL OBJECTS MARKED FOR PROSECUTION

Nil.

Sd/- M. Bujjappa,

A.J.M.F.C.

// True copy//

Addl. Judicial Magistrate of First Class,

Anantapuramu.

APAN100010932022 1 C.C. No.641/2022

IN THE COURT OF PRINCIPAL JUDICIAL MAGISTRATE

OF FIRST CLASS :: PENUKONDA

Present: Sri Masala Bujjappa,

Prl. Judicial Magistrate of First Class, Penukonda.

Wednesday, the 21st day of January, 2026.

CALENDAR CASE No.641 of 2022

Between:-

Young Kuk Shin, S/o.Shin, 48 years, R/o.Flat No.D424, Deodar Block, Brigade Orchards, Devanahalli, Bengaluru – 562110. Mobile No.8237168195

…... Complainant

And

Gopinath, Manager Director, Sun Crystals Pvt. Ltd., Tripura resort, near Sheep Farm, Madagaseera Road, Penukonda, Sri Sathya Sai District, Andhra Pradesh – 515110. Mobile No. 8886837926

…... Accused

This calendar case is coming on 19.01.2026 for final hearing before me in the presence of Sri V.Srinivasulu and Venkata Subbarayudu Adapa, Advocates for the complainant and of Sri A.Srinivas, V.Manoj Kumar, Advocates for the Accused, on hearing both counsel, on perusing the material available on record and having stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

1. The complainant filed the complaint Under Section 200 Criminal

Procedure Code, 1973 and Sec.138 r/w 142 of Negotiable Instruments

Act, 1881 (for brevity herein after called as N.I.Act) against the accused seeking to punish him for committing default for payment, for dishonour of cheque and compensation/costs.

APAN100010932022 2 C.C. No.641/2022

2. The case of the complainant in brief is that:-

The Complainant and accused are Directors in different companies and closely related to each other and on the guise of the said relation the accused has borrowed an amount of Rs.20,00,000/- (Rupees Twenty

Lakhs only) on 03.10.2019 from the complainant as a hand loan for his personal family emergency and by believing the words of the accused, the complainant procured funds and arranged money to the account of the accused in his personnel emergency and on the repeated requests and reminds made by the complainant, the accused repaid an amount of Rs.1,00,000/- (Rupees One Lakh only) on 28.04.2021 and an amount of Rs.50,000/- (Rupees Fifty Thousand only) on 27.08.2021; total amount of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand only) out of

Rs.20,00,000/- (Rupees Twenty Lakhs only)and assured the complainant to pay the balance amount within a short period without further failure but the accused once again failed to comply the promise and the complainant demanded for payment of the balance amount together with interest (from the date of obtaining hand loan) and on that accused issued a cheque bearing no.741132 dated 25.07.2022 for an amount of Rs.20,00,000/- (Rupees Twenty Lakhs only) drawn on the

Karnataka Bank Limited, Penukonda branch and on believing the assurances and undertakings of the accused, the complainant presented the said cheque in the HDFC Bank, Penukonda branch which is returned unpaid with an endorsement “FUNDS INSUFFICIENT” and further on the instruction of the accused, the complainant re-deposited the said cheque again on 10.08.2022 and also on 12.08.2022 and it was again returned unpaid with an endorsement “FUNDS

INSUFFICIENT” on 12.08.2022.

APAN100010932022 3 C.C. No.641/2022

3. The complainant further stated in the complaint that in view of dishonor of cheque, he has issued legal notice dated 23.08.2022 under section 138(b) of N.I.Act calling upon the accused to arrange for the payment of the cheque amount within 15 days from the date of receipt of said statutory notice and the legal notice was sent through registered post with acknowledgment due on 25.08.2022 and the same was not received by the accused and returned on 30.08.2022 on account of refusal by the accused and the complainant further stated that the accused has issued the said cheque with a dishonest intention to deceive and cheat the complainant without having sufficient funds in his account and the accused has rendered himself liable for punishment for the offence deliberately committed by him under Section 138 of Negotiable Instruments Act. So, the complainant is constrained to file this complaint against the accused for necessary redress of his grievance.

4. On appearance of the accused, the copies of case documents served on the accused as per Sec.207 of Cr.P.C.

5. The accused was examined under Sec.251 Cr.P.C. for the offence under Section 138 of Negotiable Instruments Act and the accused having understood of the substance of accusation denied the same and claimed to be tried.

6. In order to prove the case of the complainant, the complainant himself examined as P.W.1 and got marked Exs.P1 to P6. On the other hand the accused himself examined as D.W.1 and not got marked any documents on his behalf.

APAN100010932022 4 C.C. No.641/2022

7. After closure of complainant side evidence the accused examined under Section 313 Cr.P.C. and the incriminating material available on the record was read over and explained to him and he denied the same and reported that he got defence evidence.

8. Heard the arguments of the learned counsel for the complainant:

a) He submitted that the accused has borrowed an amount of

Rs.20,00,000/- (Rupees Twenty Lakhs only) from the complainant on 3.10.2019 as a hand loan for his personal family emergency and on repeated requests made by the complainant, the accused paid an amount of Rs.1,00,000/- (Rupees One Lakh only) on 28.04.2021 and an amount of

Rs.50,000/- (Rupees Fifty Thousand only) on 27.08.2021 and when the complainant demanded for payment of the balance amount together with interest and to discharge the said debt, the accused has issued a cheque in favour of the complainant bearing no.741132 dated 25.07.2022 for an amount of Rs.20,00,000/- (Rupees Twenty Lakhs only) drawn on the

Karnataka Bank Limited, Penukonda and thus accused has issued the above mentioned cheque of Ex.P1 for total amount of Rs.20,00,000/- (Rupees Twenty Lakhs only) and assured the complainant that the cheque will be honored immediately on its presentation and on that the complainant accepted the said cheque and has presented it for collection in HDFC Bank, Penukonda but the said cheque was got returned to the complainant un-honoured with an endorsement dated 28.07.2022 under

Ex.P2 with an endorsement “Funds Insufficient” in the account of accused and on the instruction of the accused, the complainant re-deposited the said cheque again on 10.08.2022 and was got returned on 12.08.2022 under Ex.P3 with an endorsement “Funds Insufficient”. He further argued

APAN100010932022 5 C.C. No.641/2022 that thereupon, the complainant got issued a registered legal notice under

Ex.P4 on 25.08.2022 vide postal receipt of Ex.P5 to the accused demanding to pay the amount of Rs.20,00,000/- (Rupees Twenty

Lakhs only) covered by the said cheque within 15 days from the date of receipt of the said notice and the said notice of Ex.P4 was not received by the accused and returned on 30.08.2022 as per Ex.P6 – return of postal cover as refused and despite service of Ex.P4 notice sent to the accused, but the accused not received and got returned the said notice and also not come forward to pay the amount and thereafter the complainant left with no option after waiting of statutory time, filed this complaint before this Court.

b) He further argued that the complainant has led the evidence of complainant as PW.1 and got marked Exs.P1 to P6 documents and the evidence of PW.1 would establish the claim of the complainant that the accused borrowed amount and for discharge of the said debt he has issued Ex.P1 cheque and subsequently when the said cheque was presented into the bank but the said cheque was returned twice with endorsement as “funds insufficient” in the account of accused which learnt by the complainant as per Ex.P2 and Ex.P3 return endorsement memos and subsequently the complainant by issuing Ex.P4 legal notice got sent under Ex.P5 postal receipt has bring the facts to the notice of the accused and the said notice was not received by the accused and got returned under Ex.P6 return of postal cover as refused and despite that accused not paid the amount and therefore all these documents coupled with evidence of PW.1 would show that the accused committed the offence and the moment the complainant adduced his evidence as PW1 and got marked Exs.P1 to P6 documents, he is entitled to draw a presumption that are available under Section 118 and 139 of Negotiable

APAN100010932022 6 C.C. No.641/2022

Instruments Act, which speaks about Negotiable Instrument drawn for consideration and if so, the presumption under Section 139 of

Negotiable Instruments Act shall also be come into play which shows that said Ex.P1 cheque has issued only towards discharge of legally enforceable debt that owed by the accused to the complainant and urged the court to convict the accused and award the compensation to the complainant. Subsequently the complainant side also chosen to file reply arguments which is on the record and thus such reply arguments not reproduced to avoid repetition.

9. On the other hand, the accused counsel argued that, the accused neverborrowedanamountofRs.20,00,000/-(Rupees Twenty Lakhs only)fromthecomplainantand the accused led his evidence as DW.1 and the evidence of DW.1 shows that he migrated to Penukonda in the year 2014 and started to built hotel business under the name and style of

Tripura Resorts and purchased a site near sheep farm, Penukonda and started constructing resorts and he used to get ready mix concrete for construction and laying slabs from the complainant company and thereafter difference arose between the accused and complainant company as the company fails to supply the material quality as assured and thereafter he stopped taking of material from the said company and one Abhiram used to deal with him and the said company, for which the said Abhiram has taken 2 cheques from the accused containing only signatures of the accused for security purpose in relation to the material supply of ready mix concrete and the writings of the said Ex.P1 cheque was not that of the accused and the said Abhiram has misused the cheques with the help of complainant by filing this complaint and the accused never borrowed the cheque amount from the complainant as there was no necessity for him to borrow such

APAN100010932022 7 C.C. No.641/2022 huge amount and never issued Ex.P1 cheque to the complainant as there is no such close acquaintance between the accused and the complainant and the complainant in collusion with Abhiram created Ex.P1 cheque which contains the signature of the accused and filed this case for unjust gain only to trouble the accused. He further argued that complainant only got filed Ex.P1 cheque and not filed any other document to show that accused really borrowed the amount from him and further PW1 alone adduced his evidence which is very feeble one and not inspiring confidence and it lacks corroboration and therefore, the evidence of PW.1 shall be ignored and as the accused adduced his evidence as DW1 the presumptions under section 118 and 139 of the Negotiable Instrument Act stood rebutted and finally prayed the court to dismiss the complaint and to acquit the accused. During the course of arguments, even the accused side firstly chosen to file written arguments which is on the record and thus such written arguments not reproduced to avoid repetition.

10. Heard the learned counsel for the complainant as well as the learned defence counsel. Perused the entire record and written arguments of both sides.

11. Now the points that arise for determination are :

(i) Whether the complainant complied the mandatory requirement of Sec.138(a) to (c) r/w Sec.142(b) of N.I.Act ?

(ii) Whether the complainant proves that the Ex.P1 cheque was issued by the accused towards

discharge of legally enforceable debt?

(iii) Whether the accused rebutted the evidence of the complainant and the accused defense can be believable?

(iv) Whether the complainant able to bring home the guilt

APAN100010932022 8 C.C. No.641/2022 of the accused for the offence for the Section 138 r/w 142 of N.I.Act?

12. POINT No.1:-

Whether the complainant complied the mandatory

requirement of Sec.138(a) to (c) r/w Sec.142(b) of N.I.Act ?

It is an obligation on the part of the complainant to prove that the cheque was given to him by the accused was presented in the Bank within statutory time, the said cheque was dishonored for the reason of “funds insufficient”, that must be put to the notice of accused by issuing demand notice within 30 days, thereafter the complainant must wait for a period of 15 days from the date of receipt of said demand notice by the accused and after 15 days of the said notice service the complainant must file complaint within one month. These are the prime requirements on the part of the complainant to comply before holding the accused culpable for the offence relating to the dishonor of the cheque(s) enumerated under Section 138 of N.I.Act. The above factors also reiterated by the Hon’ble Supreme Court of India in

Crl.A.No.1497/2022between Dashrathbhai Trikambhai Patel Vs Hitesh

Mahendrabhai Patel and Another wherein at para no.10 held that:

“However, unless the stipulations in the proviso are fulfilled the offence is not deemed to be committed. The conditions in the proviso are as follows:

(i) The cheque must be presented in the bank within six months from the date on which it was drawn or within the period of its validity;

(ii) The holder of the cheque must make a demand for the payment of the ‘said amount of money’ by giving a notice in

APAN100010932022 9 C.C. No.641/2022 writing to the drawer of the cheque within thirty days from the receipt of the notice from the bank that the cheque was returned dishonoured, and

(iii) The holder of the cheque fails to make the payment of the ‘said amount of money’ within fifteen days from the receipt of the notice.”

13. In view of above it requires to examine the present facts of the case to assess the above requirements are fulfilled or not. As seen from the record, the complainant avers in the complaint thattheaccused borrowed an amount of Rs.20,00,000/- (Rupees Twenty Lakhs only) from him agreeing to repay the same within soon. It is the evidence of PW1 in the chief examination that “accused obtained an amount of Rs.20,00,000/- (Rupees Twenty Lakhs only) from him as a hand loan” and whereas in the cross examination PW.1 has stated that “he has sent an amount of

Rs.20,00,000/- (Rupees Twenty Lakhs only) through online to the accused on 03.10.2019 and the accused repaid Rs.2,00,000/- (Rupees Two Lakhs only) to the complainant before giving cheque to him”.

14. So, as per the above evidence it suggests that the date of lending the amount is 03.10.2019 and cheque of Ex.P1 was issued on 25.07.2022. The record further shows that the accused has issued cheque of Ex.P1 on 25.07.2022, therefore the said cheque was issued for the debt that borrowed by the accused and thus that cheque seems to be issued within statutory time covered under law of limitation prevailing then.

Cheque of Ex.P1 shown to be issued on 25.07.2022 and evidence of

P.W.1 fortifying the same. Besides that the evidence of PW.1 and contents of complaint are showing that the Ex.P1 cheque was presented

APAN100010932022 10 C.C. No.641/2022 in the HDFC Bank, Penukonda branch on 25.07.2022 initially and subsequently again represented on 10.08.2022 and 12.08.2022. The complainant got marked Ex.P3 which is second returned endorsement which is issued by HDFC Bank and this Ex.P3 of cheque return memo

dated 12.08.2022 is showing that bank authorities issued endorsement

vide memo mentioned as “funds insufficient”. This document went unchallenged from the accused side and this would going to show that cheque of Ex.P1 which was issued on 25.07.2022, was presented in the bank on 28.07.2022 initially as per Ex.P2 and subsequently again the same was presented in the bank on 12.08.2022 under Ex.P3. Therefore the Ex.P1 cheque was presented into the Bank within stipulated time of statute as per Section 138(a) of Negotiable Instruments Act.

15. Further Ex.P1 cheque was bounced back with a reason that “funds insufficient” in the account and same is acknowledged by the bank by issuing Ex.P2 and P3 memos dated 28.07.2022 and 12.08.2022 to the complainant and soon after Ex.P3 memo, the complainant got issued legal notice dated 25.08.2022 to the address of the accused, as per Ex.P4-Legal notice and Ex.P5 - postal receipt

dated 23.08.2022 but such notice not served on the accused on

account of his refusal as per the Ex.P6 – Return Postal Cover. Ex.P5 postal receipt contains the date as 23.08.2022 which is prior to the date of legal notice dated 25.08.2022 but on keen perusal of returned postal cover which contains counter foil of Ex.P6 showing that such postal cover was booked on 25.08.2022. Therefore, Ex.P5 postal receipt is hereby ignored and taken into consideration of only Ex.P6 which contains postal receipt affixed on the postal cover contains the Ex.P4 legal notice. So, as per Ex.P6 – acknowledgment document, the refusal

APAN100010932022 11 C.C. No.641/2022 endorsement on such postal cover was made on 30.08.2022.

Therefore, the legal notice of Ex.P4 was issued on 25.08.2022 is well within one month from the date of 12.08.2022 on which day the last cheque bounce endorsement was issued by the banker as per Ex.P3.

Hence, from the date of 30.08.2022, the complaint must be filed within one month after waiting period of 15 days from the date of 30.08.2022.

The above events culminated into compliance of all requisite formalities even in terms of Sec.27 of General Clauses Act and such presumption under section 27 of General Clauses Act went in favour of complainant as

Ex.P4 legal notice properly addressed to the addressee of accused and thus Ex.P4 legal notice deemed to be served. Therefore the mandatory notice contemplated under Section 138(b) of Negotiable Instruments Act was deemed to be served on the accused within 30 days of stipulated time.

16. Further the complainant claimed in the complaint that the legal notice was refused to receive by the accused and postal authorities made an endorsement of refusal order on 30.08.2022 vide Ex.P6 – returned postal cover. From that day onwards the complainant must wait for 15 days for filing complaint and thereafter he must file complaint within one month that is probably on or before 14.10.2022. This complaint was filed by the complainant on 10.10.2022 vide C.F.No.1200 dated 10.10.2022 after waiting period of 15 days from the date of 30.08.2022 which is the date on which the legal notice under Ex.P4 was refused by the accused. It all shows that accused failed to pay amount and such defence attracts Section 138(c) of Negotiable Instrument Act. Therefore the complainant filed this complaint within statutory period contemplated under Section 142(b) of Negotiable Instruments Act and hence the

APAN100010932022 12 C.C. No.641/2022 complaint filed before this Forum was complied by the complainant as per the law.

Thus, this point accordingly answered in favour of the complainant.

17. POINT No.2:

“Whether the complainant proves that Ex.P1 Cheque were

issued by the accused towards discharge of legally

enforceable debt?”

It is the claim of the complainant as per the complaint itself and evidence of PW.1 in chief examination is that “the accused being a

Managing Director of Sun Crystals Private Limited, Tripura Resorts,

Penukonda has met the complainant through business relationship and gained acquaintance with the complainant and out of such acquaintance there developed a close relationship with each other and under the guise of said close relationship the accused has obtained an amount of

Rs.20,00,000/- (Rupees Twenty Lakhs only) on 03.10.2019 as a hand loan for personal and family emergency and subsequently on repeated requests and remainders made by the complainant, the accused has chosen to pay Rs.2,00,000/- (Rupees Two Lakhs only) in spells assuring to pay the balance amount within short period but on failure to pay remaining balance amount, the complainant again demanded for payment of balance amount together with interest and on that accused has issued cheque bearing no. 741132 dated 25.07.2022 for Rs.20,00,000/- (Rupees

Twenty Lakhs only) drawn on Karnataka bank Limited, Penukonda branch”. It is further claim of the complainant as per complaint and as per his evidence in chief that the complainant was initially presented the cheque on 28.07.2022 for collection and later on it was returned with an

APAN100010932022 13 C.C. No.641/2022 endorsement of banker that it was dishonored due to reason of “funds insufficient” in the account and subsequently on the instructions of the accused again the complainant redeposited the said cheque on 10.08.2022 and also on 12.08.2022 and on those occasions also it was again returned unpaid with an endorsement “funds insufficient”. The accused adduced evidence as DW.1 and spoken that he has issued Ex.P1 cheque for security purpose in relation to supply of ready made mixed concrete.

18. In view of above evidence of complainant side, it needs to evaluate such evidence to find out whether there exist ‘creditor and debtor’ relationship between the complainant and accused. In other words, it needs to find out whether accused has borrowed the amount of

Rs.20,00,000/- (Rupees Twenty Lakhs only) from the complainant. Though not for crystallizing acquaintance between the complainant and accused but it requires to peep or dwell into for finding out prima facie as to any acquaintance between the accused and complainant that has triggered to form relationship for assuming that out of such relationship the monetary transaction has taken place among them. It is averred in the complaint that on account of business runs by the accused he has came into contact with the complainant for such business necessity and subsequently personal relationship was developed. Though the accused who adduced his evidence as DW.1, claims in the chief examination that he has a business relationship with the complainant in relation to supply of concrete material for establishing hotel construction of him, but, he has in the initial cross examination despite claims that he has no personal relationship with the complainant’s company and complainant but in the same cross examination subsequently categorically stated that “there was a direct conversation between him and complainant prior to Ex.P1 and he has

APAN100010932022 14 C.C. No.641/2022 transferred land on the name of wife of complainant. This narration of accused made in the cross examination is apparently shows that complainant and accused had known each other fully prior to Ex.P1 and there was direct conversations between them. So, acquaintance between the complainant and accused is apparent and established. Therefore, there was a scope for obtaining Rs.20,00,000/- (Rupees Twenty Lakhs only) by the accused from complainant.

19. Let us dwell on to the aspect of issuance of Ex.P1 cheque by the accused to the complainant out of such assumed acquaintance. Except

Ex.P1 cheque said to be issued by the accused to the complainant, no other document filed by the complainant side. However, though the complainant claims in the complaint that accused obtained a Rs.20,00,000/- (Rupees

Twenty Lakhs only) as a hand loan and such fact though reiterated in the chief examination of him as PW.1 but in the cross examination he has gone to state that “he has sent Rs.20,00,000/- (Rupees Twenty Lakhs only) through online to the accused”. This utterance of complainant / PW.1 not met with severe resistance from the accused side except mere suggestion that “the complainant not filed any document before this court to show that he gave Rs.20,00,000/- (Rupees Twenty Lakhs only) to the accused” and said suggestion denied by the complainant / PW.1 . Further, accused counsel suggested to the PW.1 that “complainant not gave money to the accused in the personal capacity and accused gave the cheque to the company but not to the complainant personally” but said suggestion denied by PW.1. If the above suggestions posed by the defence counsel to the

PW.1 fathomed, it has somehow suggest that there was a monetary transaction between the complainant and accused and towards such monetary transaction accused has given a cheque. Though said

APAN100010932022 15 C.C. No.641/2022 suggestion posed by the defence counsel not directly an admission as to complainant lending the amount in his personal capacity and accused giving the cheque to the complainant towards such transaction but somehow the above suggestions emanated from the defence side to the PW.1 signifies that there was a amount lend by the complainant to the accused and the accused subsequently issued the cheque.

20. However, the accused who adduced his evidence as DW.1 categorically admitted in the cross examination that “Rs.20,00,000/- (Rupees Twenty Lakhs only) amount was credited to his account on 03.10.2019”. Though the accused has stated in the cross examination that such amount was credited to his account for the purpose of land registration and tried to explain that a land was bought by the complainant on the name of his wife, for that he paid Rs.20,00,000/- (Rupees Twenty

Lakhs only) but the accused in the same cross examination subsequently as stated that he did not filed any document to show that he executed a registered document after receipt of Rs.20,00,000/- (Rupees Twenty Lakhs only) and complainant counsel denied of any such land transaction by posing suggestion to the accused / DW.1. The accused in the cross examination also admitted that Ex.P1 cheque belongs to him and it contains his signature. So, the accused has admitted about Rs.20,00,000/- (Rupees Twenty Lakhs only) credited or transferred to his account on 03.10.2019 and also Ex.P1 cheque bears his signature. The above evidence irresistibly suggest that complainant managed to put forth that he has lent an amount of Rs.20,00,000/- (Rupees Twenty Lakhs only) and for that purpose Ex.P1 cheque was issued by the accused subsequently for discharge of such debt with interest.

APAN100010932022 16 C.C. No.641/2022

21. At this juncture, it required to find out what for an amount of

Rs.2,00,000/- (Rupees Two Lakhs only) in spells repaid by the accused person. The accused claim that he paid Rs.2,00,000/- (Rupees Two Lakhs only) on different occasions to the complainant and this factor also assumed greater importance and this somehow fortifies that accused has repaid an amount of Rs.2,00,000/- (Rupees Two Lakhs only) having borrowed the amount of Rs.20,00,000/- (Rupees Twenty Lakhs only) from the complainant. Accused / defence side has suggested to the PW.1 that accused paid an amount of Rs.2,00,000/- (Rupees Two Lakhs only) on two occasions which fact is admitted by the complainant in the cross examination and even prior to that in the complaint and chief examination, the complainant spoken about such repayment. But no where the accused clarified either in the cross examination done over the PW.1 / complainant or in his evidence as DW.1 that what for he has chosen to repaid such amount of Rs.2,00,000/- (Rupees Two Lakhs only). This silence maintained by the accused regarding what for he repaid Rs.2,00,000/- (Rupees Two Lakhs only) is tantamount to acknowledgment of debt of

Rs.20,00,000/- (Rupees Twenty Lakhs only) that owed to complainant.

Therefore, this repayment of Rs.2,00,000/- (Rupees Two Lakhs only) made by the accused to the complainant buttressing the complainant version that accused borrowed the amount of Rs.20,00,000/- (Rupees

Twenty Lakhs only) from him and thereafter towards interest he has paid

Rs.2,00,000/- (Rupees Two Lakhs only) and thereafter he has given cheque of Ex.P1 to him.

22. While the evidence of above tilting in favour of complainant, then certain presumptions under Negotiable Instrument Act required to be raised in favour of the complainant and those presumptions are

APAN100010932022 17 C.C. No.641/2022 establishing case of the complainant against the accused that the accused having borrowed the amount from the complainant has issued cheque in

Ex.P1 towards discharge of legally enforceable debt. When once the accused admitted in the cross examination that Ex.P1 cheque bears his signature and it belongs to him, then it is very clear that Ex.P1 cheque contains the signatures of accused was issued by the accused only. When once signatures of accused on Ex.P1 cheque became undisputed fact, then the presumption under Section 20 of Negotiable Instruments Act would come into play. Section 20 of Negotiable Instruments Act which deals with inchoate stamped instruments is clearly states that “when a person signs and delivers to another a paper of stamped in accordance with the law relating to Negotiable Instruments either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima-facie authority to the holder thereof to make or complete such negotiable instrument for any amount specified therein”. Since, the Ex.P1 cheque which is negotiable instrument belongs to the accused was given to the complainant after it was duly signed by the accused, then it can be presumed that accused given that empty signed cheque of Ex.P1 with an authority to the complainant to get it filled. So the above presumption is enough to negate the contention of the accused that he given empty signed cheque to the manager of the complainant and such cheque was filled subsequently and filed in this case. Therefore, by virtue of Section 20 of Negotiable Instrument Act which would shows that Ex.P1 cheque issued by the accused to the complainant with an authority to get them filled, then the claim and contention of complainant is fortified besides the evidence of

P.W.1. In t h e a b o v e circumstances, when the evidence of complainant stood at high pedestal, then it is imperative on the part of this

Court to raise a presumption under Section 118 of Negotiable Instruments

APAN100010932022 18 C.C. No.641/2022

Act in favour of the complainant. Sequently it shall also presume as per section 139 of N.I.Act that the cheque of Ex.P1 was issued for discharge of legally enforceable debt. It is also pertinent here itself to reproduce what are relevant provisions of section 118 of Negotiable Instrument Act would say :

118. Presumption as to negotiable instruments:-Until the contrary is proved, the following presumptions shall be made:-

(a) of consideration:-that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;

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

(c) as to time of acceptance:-xxxxxxxxxx

(d) as to time of transfer:-xxxxxxxxxx

(e) as to order of endorsement:-xxxxxxxxxx

(f) as to stamp:-xxxxxxxxxx

(g) that holder is a holder in due course:-that the holder of a Negotiable Instrument is a holder in due course.

23. So, when once accused admitted his signature on Ex.P1 cheque, then as per Section 118 of N.I. Act the presumption would raise in favour of the complainant that the Ex.P1 cheque which is a negotiable instrument was made or drawn for consideration. Hence, Ex.P1 cheque presumed to be supported by consideration.

Further, as per section 118(b) of N.I.Act the presumption as to date shall also went

APAN100010932022 19 C.C. No.641/2022 in favour of the complainant as it shall be presumed that Ex.P1 cheque which is negotiable instrument which bears a date was made or drawn on the same date.

Since, the complainant is a holder of Ex.P1 cheque in terms of Section 8 of

Negotiable Instrument Act, then he became a holder in due course as per Section 9 of Negotiable Instrument Act. Therefore, as per section 118(g) the complainant is holder of Ex.P1 cheque presumed to be possessed the same for consideration or sum mentioned in Ex.P1. So, by virtue of above presumptions coupled with evidence of PW.1 and Ex.P1, it is established by the complainant that the accused has borrowed amount of Rs.20,00,000/- (Rupees Twenty Lakhs only) and to discharge such debt with interest, he has issued Ex.P1 cheque.

24. When once the presumption under section 118 of Negotiable

Instrument Act of above pressed into service and operates in favour of the complainant in respect of establishing support of consideration to the

Ex.P1, complainant being holder of Ex.P1 and date of issuance of Ex.P1, then the another presumption under section 139 of Negotiable Instrument

Act shall also came into play in favour of complainant. It is pertinent here to reproduce what the section 139 of N.I. Act intended to convey the presumption available thereunder.

139. Presumption in favour of holder. 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 for the discharge, in whole or in part, of any debt or other liability.

25. So, the complainant who is the holder of Ex.P1 cheque is entitled to get the presumption under section 139 of N.I.Act in his favour and as

APAN100010932022 20 C.C. No.641/2022 per such presumption available under section 139 of N.I.Act, the court is required to be presumed that Ex.P1 cheque was issued by the accused to the complainant for discharge of legally enforceable debt. Hence, Ex.P1 cheque is meant for discharge of legally enforceable debt owed by the accused to the complainant. Therefore, the complainant has managed to establish that Ex.P1 cheque was issued by the accused towards discharge of legally enforceable debt.

Hence, this point accordingly answered in favour of the complainant and as against the accused.

26. POINT No.3:

Whether the accused rebutted the evidence of the complainant

and the accused defense can be believable?

Here in this case on the hand, when once Ex.P1 cheque was

said to be issued by the accused proved by the complainant even

with the aid of Section 20, 118 and 139 of Negotiable Instruments

Act then it should be considered that it was drawn and it was issued

by the accused person for discharge of legally enforceable debt. It is needless to say that presumptions enunciated under section 20, 118 and 139 of Negotiable Instruments Act are rebuttable presumptions and accused can refute those presumptions by either defusing the evidence of complainant or by adducing his side evidence which must be stellar one when compared with the complainant evidence. Then this court will consider that the accused defence set forth by him is probablising his defence. When once the complainant by adducing evidence of P.W.1 and got marking Ex.P1 cheque discharged the initial burden, then burden

APAN100010932022 21 C.C. No.641/2022 is on the accused to rebut such claim and evidence of complainant and thus the accused must explain and prove that the said cheque of Ex.P1 was not given for discharge of legally enforceable debt.

27. At this juncture, it is very pertinent to discuss the defences set up by the accused. The accused has set forth several defences, which need to be listed hereunder before dwelling upon and answering them. The defences raised by the accused are as follows:- Firstly; there is no documentary proof to establish that complainant lend any amount to the accused, and even such alleged lending does not find place in the Income Tax returns of complainant, secondly; An amount of

Rs.20,00,000/- (Rupees Twenty Lakhs only) was given by the complainant for registration of land in the name of wife of complainant, thirdly; Cheque in question was issued as a security for supply of ready made mixed concrete for construction of resorts of accused, fourthly; amount of

Rs.2,00,000/- (Rupees Two Lakhs only) was repaid by the accused but the said repayment was neither endorsed nor acknowledged by the complainant and such amount not deducted from the alleged liability.

28. Let us now assess and fathom the defences of accused one by one:-

(a) The first and foremost defence taken by the accused is that “there is no documentary proof to establish that complainant lend any amount to the accused, and even such alleged lending does not find place in the Income Tax returns of complainant”. It is a fact that except filing

Ex.P1 cheque no other document field by the complainant side to show that he has lent amounts of Rs.20,00,000/- (Rupees Twenty Lakhs only) to the accused. This fact also admitted by the complainant as a PW.1 in

APAN100010932022 22 C.C. No.641/2022 the cross examination. Even the complainant being PW.1 has stated in the cross examination that his annual income is of Rs.50,00,000/- (Rupees Fifty Lakhs only) as such he thought there is no need of mentioning the lending of Rs.20,00,000/- (Rupees Twenty Lakhs only) in his income tax return. This portion of evidence indicating that even such lending amount of Rs.20,00,000/- (Rupees Twenty Lakhs only) not find place in the income tax returns of complainant.

However, the complainant while giving answers in the cross examination at one point of time has stated that he sent the amount of

Rs.20,00,000/- (Rupees Twenty Lakhs only) to the accused on 03.10.2019 and such amount was credited to the account of accused and stated that he sent Rs.20,00,000/- (Rupees Twenty Lakhs only) through online to the accused. whereas, the accused adduced his evidence as

DW.1 and admitted in the cross examination that an amount of

Rs.20,00,000/- (Rupees Twenty Lakhs only) was credited on 03.10.2019.

The said admission of accused is not isolated or accidental one but it is a conscious admission made by the accused twice in the cross examination.

Though the accused tried to offer an explanation in the cross examination that the said amount was credited to his account for the purpose of land registration but no evidence was forth come to show that such amount was given or credited to him towards land dealings. Quite ironically the accused further stated in the cross examination that “he might have executed a registered document in the name of wife of complainant. Such answer of him is not forth right or straight one but such answer shows that he is giving evasive answers or deposing evasive answer as to alleged land registration. If at all, he does land registration, then he must spoke firmly and without shrugging that it was registered in the name of

APAN100010932022 23 C.C. No.641/2022 wife of complainant. So, the above shrugging answer and non placing of documentary evidence as to alleged land registration indicating that there is no documentary proof emanated from accused side to establish that an amount of Rs.20,00,000/- (Rupees Twenty Lakhs only) credited to his account towards land transaction. This circumstance has casted a heavy doubt over the authenticity and existence of such document sought to be relied by the accused. In the absence of proof from the accused side, the evidence of PW.1 that he sent the amount of Rs.20,00,000/- (Rupees

Twenty Lakhs only) to the account of accused on 03.10.2019 and admission of such fact by the accused is enough to show that there was a proof of transaction of Rs.20,00,000/- (Rupees Twenty Lakhs only) which acknowledged by the accused. Therefore, the own admission of accused as to crediting of Rs.20,00,000/- (Rupees Twenty Lakhs only) amount to his account on 03.10.2019 is enough and there is no documentary proof required to prove it. Further, non finding of such huge amount in the income tax returns is of no consequences when once the accused admitted the transfer of amount of Rs.20,00,000/- (Rupees Twenty Lakhs only) to his account. When such transferred amount is not stealth one, non mentioning of such amount in the income tax is of no consequences on this case.

(b) The second defence taken by the accused is that “An amount of

Rs.20,00,000/- (Rupees Twenty Lakhs only) was given by the complainant for registration of land in the name of wife of complainant”. It is claimed by the accused that an amount of Rs.20,00,000/- (Rupees Twenty Lakhs only) which was credited to his account was done towards land transaction and in response to the receipt of those Rs.20,00,000/- (Rupees Twenty Lakhs only) he has executed a registered sale deed in favour of wife of the complainant and

APAN100010932022 24 C.C. No.641/2022 claimed that such amount of Rs.20,00,000/- (Rupees Twenty Lakhs only) nothing to do with the Ex.P1 cheque got filed by the complainant. It is very clear from the cross examination of DW.1 that accused admitted about Rs.20,00,000/- (Rupees Twenty Lakhs only) amount credited to his account on 03.10.2019.

Even the complainant during the course of cross examination being PW1, has stated that he has sent Rs.20,00,000/- (Rupees Twenty Lakhs only) amount to the accused on 03.10.2019. Therefore, an amount of Rs.20,00,000/- (Rupees Twenty Lakhs only) was transferred by the complainant to the account of accused on 03.10.2019.

When once the accused claims that when such amount was credited to his account towards land transaction and accordingly he has executed the registered document in favour of wife of the complainant, then such fact must be proved by the accused. But, except mere oral say, the accused has not came up with any documentary proof to show that he has executed registered document in the name of wife of complainant to assume that an amount of

Rs.20,00,000/- (Rupees Twenty Lakhs only) was transferred by complainant towards the said land transaction. Ironically, the accused being a DW.1 has stated in the cross examination that he might have executed the registered document in the name of wife of complainant. This uncertain words uttered by the accused during the cross examination of DW.1 is enough to show that he has not placed any evidence to believe his version that an amount of

Rs.20,00,000/- (Rupees Twenty Lakhs only) was transferred by complainant towards land transaction. Even, there is no a specific suggestion posed to the complainant / PW.1 that an amount of Rs.20,00,000/- (Rupees Twenty Lakhs only) that was sent through online to the accused towards land transaction.

When such defence not posed by the accused to the complainant / PW.1 during the cross examination of PW.1, then it can be safely conclude that the defence of accused is a fictional narration. Therefore, the above defence set forth by the

APAN100010932022 25 C.C. No.641/2022 accused is a fragile and feeble one and it has no proof at all. Hence, such defence shall fell flat.

(c) The third defence taken by the accused is that “Cheque in question was issued as a security for supply of ready made mixed concrete for construction of resorts of accused”. In this regard, the accused claims that he has issued Ex.P1 cheque to one Abhiram,

Manager of complainant firm and such cheque was issued towards security purpose for the supply of ready mix concrete. This defence suggested by the accused to the PW.1 / complainant during the course of cross examination of PW.1 and though PW.1 denies such suggestion but admits that one Abhiram has received the cheque from the accused. But, complainant has stated in the cross examination itself that his accountant has received cheque and handed it over to him. So, this portion of evidence need to be analyzed carefully, otherwise it gives an impression that such Ex.P1 cheque was given by the accused to Abhiram towards security purpose. When the complainant being PW.1, categorically stated in the cross examination that “his accountant was received cheque from the accused and handed it over to him”, then it shall not be construed that it was issued towards ready made mixture of concrete supply but it can be understood normally that the complainant having feasibility of assistant, he has employed him to receive the cheque from the accuse. Further, even though complainant being a PW.1 stated that another cheque bounce case being filed by his Assistant Abhiram against the accused, but, such tiny factor would not help the accused as accused fails to place believable evidence in respect of this Ex.P1 cheque for showing that this

Ex.P1 cheque along with another cheque was issued to Abhiram for security purpose. Therefore, the accused must come up with heavy proof

APAN100010932022 26 C.C. No.641/2022 rather than assumptive evidence to show that he has issued Ex.P1 cheque to Abhiram, Manager of complainant towards security purpose in respect of supply of ready made mixture of concrete to his resort constructions.

The accused appears to have made perfunctory efforts by filing a petition vide Crl.M.P.No.299/2024 with its order dated 01.08.2024 for summoning the Abhiram to prove above fact, but despite allowing of the petition, he has not chosen to pay process or compel the said witness in any manner to give his evidence in respect of above aspect. This indicates that the accused either enacted a drama or adopted a perfunctory approach to pretend for summoning said Abhiram as a witness on his behalf. Therefore, the complainant except his mere say, he has not produced any other evidence to show that Ex.P1 cheque was entrusted to Abhiram, Manager of accused as a security towards supply of ready made mixed concrete for construction of his resort. The non examination of Abhiram by the accused is a fatal to the defence of above set forth by the accused.

This third defence when compared with the second defence indicates hallowness in the defence put up by the accused side. The second and third defence set up by the accused if keenly analyzed, it heralds that accused oscillating from one defence to another without firmly sticking to any one of them. The accused under the second defence set forth by him claims that an amount of Rs.20,00,000/- (Rupees Twenty

Lakhs only) was credited to him towards land transaction and he has no legally enforceable debt towards the complainant, but under the third defence set forth by the accused, he claims that Ex.P1 cheque was issued

APAN100010932022 27 C.C. No.641/2022 towards security purpose regarding ready mix mixture of concrete.

Without proving these two defences, both the defences stood dichotomous. Further, without placing solid evidence as to what for he repaid an amount of Rs.2,00,000/- (Rupees Two Lakhs only) to the complainant, the entire narration of accused is of dubious one.

(d) The fourth defence taken by the accused is that “ the amount of

Rs.2,00,000/- (Rupees Two Lakhs only) was repaid by the accused but the said repayment was neither endorsed nor acknowledged by the complainant and such amount not deducted from the alleged liability (from the principle amount)”. In relation to this defence, the accused claims that an amount of Rs.2,00,000/- (Rupees Two Lakhs only) around repaid by him and the same is neither endorsed on Ex.P1 nor deducted the same in the principal amount and the very filing of this case for entire amount of Rs.20,00,000/- (Rupees Twenty Lakhs only) cannot sustain as it cannot be considered that issuance of such Ex.P1 is towards legally enforceable debt on account of non deducting of Rs.2,00,000/- (Rupees

Two Lakhs only) amount paid by the accused.

29. Prior to dwelling upon and deciding the contention of accused regarding the payment of Rs.2,00,000/- (Rupees Two Lakhs only) to the complainant, it is necessary to note that any person would be bemused by the stand taken by the accused, for the reason that no where has the accused clarified, either in the cross examination of PW.1 / Complainant or in his evidence has DW.1, as to what prompted him to repay such an amount of Rs.2,00,000/- (Rupees Two Lakhs only). The silence maintained by the accused with regard to the purpose for which he repaid

Rs.2,00,000/- (Rupees Two Lakhs only) is a clear indication of

APAN100010932022 28 C.C. No.641/2022 acknowledgment of debt of Rs.20,00,000/- (Rupees Twenty Lakhs only) owed to the complainant. When the complainant stated in the cross examination that accused had paid Rs.2,00,000/- (Rupees Two Lakhs only) to him prior to issuing the cheque, such evidence clearly suggest that accused paid the said amount of Rs.2,00,000/- (Rupees Two Lakhs only) towards the debt of Rs.20,00,000/- (Rupees Twenty Lakhs only) and thereafter issued Ex.P1 cheque to the complainant.

30. The defence side while doing the cross examination over the complainant / PW.1 asked for payment of Rs.2,00,000/- (Rupees Two

Lakhs only) made by the accused to the complainant and in the cross examination PW.1 / Complainant he has stated that Rs.2,00,000/- (Rupees Two Lakhs only) in spells was paid by the accused to him. It is further stated by the complainant / PW.1 that he has not made any endorsement with regard to payment of Rs.2,00,000/- (Rupees Two Lakhs only) by the accused. Based on the above evidence found in the cross examination of PW.1, it is contended by the defence side that non making of endorsement or non issuance of endorsement by the complainant to the accused regarding repayment of Rs.2,00,000/- (Rupees Two Lakhs only) is impermissible under the law as per Section 56 of Negotiable

Instrument Act and such non deduction of amount of Rs.2,00,000/- (Rupees Two Lakhs only) while filing the case is clear indication of filing this complaint for entire debt of Rs.20,00,000/- (Rupees Twenty Lakhs only) without omitting Rs.2,00,000/- (Rupees Two Lakhs only). The learned defence counsel has contended that when the part payment of debt is made after cheque was drawn but before the cheque is encashed, such payment must be endorsed on the cheque as per Section 56 of NI

Act, 1981 and if the un-endorsed cheque is dishonored on the

APAN100010932022 29 C.C. No.641/2022 presentation, the offence under section 138 cannot be attracted since the cheque does not represent a legally enforceable debt at the time of encashment. The learned defence counsel has heavily relied upon ruling of the Hon’ble Supreme Court delivered in Crl.A.No.1497/2022between

Dashrathbhai Trikambhai Patel Vs Hitesh Mahendrabhai Patel and

Another wherein at para no.29 the Hon’ble Supreme Court has ruled that:

“Under Section 56 read with Section 15 of the Act, an endorsement may be made by recording the part-payment of the debt in the cheque or in a note appended to the cheque.

When such an endorsement is made, the instrument could still be used to negotiate the balance amount. If the endorsed cheque when presented for encashment of the balance amount is dishonored, then the drawee can take recourse to the provisions of Section 138. Thus when a part payment of the debt is made after the cheque was drawn but before the cheque is encashed, such payment must be endorsed on the cheque under Section 56 of the Act. The cheque cannot be presented for encashment without recording the part payment. If the unendorsed cheque is dishonoured on presentation, the offence under Section 138 would not be attached since the cheque does not represent a legally enforceable debt at the time of encashment.”

31. The above ruling underlines and emphasizes the principle that if any part payment is made subsequent to the issuance of cheque and prior to presenting the cheque for encashment, it is bounden duty of the holder

APAN100010932022 30 C.C. No.641/2022 of the cheque (lender) to make endorsement regarding such payment either on the reverse side of cheque or any slip attached thereto, and thereafter he must present the said cheque for encashment of the amount after deducting the repayment. If the said underline principle is applied to the present case on the hand, the defence version cannot stand, for the reason that the complainant, during the course of cross examination categorically stated that accused has issued cheque subsequent to the payment of Rs.2,00,000/- (Rupees Two Lakhs only). This shows that

Ex.P1 cheque was issued after repayment of Rs.2,00,000/- (Rupees Two

Lakhs only). Therefore, the above ruling is not applicable to the present case on the hand. On the contrary, the evidence suggests that Ex.P1 cheque was issued for the principle amount outstanding as on that date including interest.

32. The learned defence counsel also relied upon ruling of Hon’ble

High Court of Karnataka at Bangalore delivered in Civil Revision

Petition 1108/2006 in between Mr.Usman @ Suben .Sharifuddin Vs.

Abdhul Khadar wherein the Hon’ble High Court of Karnataka while relying on the Judgment of Hon’ble Supreme Court in the case of “Dashrathbhai Trikambhai Patel Vs Hitesh Mahendrabhai Patel and

Another” held at para no.19:

“In the said decision, in clause (iv) of Para-30, the Apex

Court has clearly observed that, when the drawer had made a part payment of it and when the cheque was placed for encashment upon maturity, the cheque for entire amount cannot be termed as legally enforceable debt on the date of maturity and hence, the accused cannot be deemed to have

APAN100010932022 31 C.C. No.641/2022 committed an offence under section 138 of the N.I.Act. The said principles are directly applicable to the case in hand. In the instant case also, the complainant has admitted receipt of

Rs.20,000/- in part payment. However, he did not get endorsed for payment of Rs.20,000/- and presented cheque for Rs.3,00,000/- itself and did not restrict it for Rs.2,80,000/-.

The legal notice is also for Rs.3,00,000/- only and hence in view of the observations made in clause (iv) of Para-30 of the

Apex Court in the case of Dasharthbhai’s case referred above, the offence under section 138 of N.I.Act is not at all attracted, since, as on the date of presentation of cheque, there was no legally enforceable debt for Rs.3,00,000/- but it was only for Rs.2,80,000/- as admitted case of the complainant himself”.

33. In both the above cases, the ruling of Hon’ble Supreme

Court in Dasharathbhai’s case and ruling of Hon’ble High Court of Karnataka in Mr.Usman @ Suben Sharifuddin Vs. Abdhul Khadar case, the complainant’s therein has screened the part payment made by the accused persons therein and not duly acknowledged the said part payment made to the complainant’s therein. Whereas, in the present case on the other hand, the complainant herein has not screened such part payment of Rs.2,00,000/- (Rupees Two Lakhs only) and in turn the complainant herein has duly acknowledged and accounted for the said part payment of Rs.2,00,000/- (Rupees Two Lakhs only) by mentioning the same in his complaint and chief affidavit. Further, at this juncture, it should be made clear that an amount of payment of Rs.2,00,000/- (Rupees Two Lakhs only) made by the accused to the complainant is not

APAN100010932022 32 C.C. No.641/2022 a novel fact suddenly emerged in the cross examination but indeed the complainant has made a clear averment in the complaint as well as in his chief affidavit regarding the payment of Rs.2,00,000/- (Rupees Two Lakhs only) in spells made by the accused to the complainant. In the cross examination of PW.1 itself, the complainant has clearly stated that Ex.P1 cheque was issued subsequent to the payment of Rs.2,00,000/- (Rupees

Two Lakhs only) amount by the accused to him. There is nothing on the record from the side of accused to suggest that he had issued the cheque prior to the payment of Rs.2,00,000/- (Rupees Two Lakhs only) amount by him to the complainant. Therefore, it can be safely inferred that the accused firstly made a repayment of Rs.2,00,000/- (Rupees Two Lakhs only) towards the amount of Rs.20,00,000/- (Rupees Twenty Lakhs only) debt owed to complainant and thereafter for the discharge of said principal amount and interest, he has issued Ex.P1 cheque. Therefore, in view of above facts and circumstances of this case, the citations / rulings relied by the learned counsel for the accused are not applicable to the facts of this case.

34. Further, there is nothing suggest on the record from the side of accused that the accused instructed the complainant to deduct

Rs.2,00,000/- (Rupees Two Lakhs only) amount towards principal amount.

Though the complainant in his complaint mentioned about the dates of such repayment mentioning an amount of Rs.1,50,000/- (Rupees One

Lakh Fifty Thousand only) in spells but he has clearly stated in the chief affidavit that accused repaid an amount of Rs.2,00,000/- (Rupees Two

Lakhs only) in total under different dates. So, though there is a discrepancy in the complaint as to the exact amount of repayment but complainant clearly mentioned in the chief affidavit that accused paid

APAN100010932022 33 C.C. No.641/2022

Rs.2,00,000/- (Rupees Two Lakhs only) amount. So, such discrepancy appears to be a typographical error and such discrepancy is rectified by the complainant in his chief affidavit. Therefore, the complainant in his complaint as well as his chief affidavit as PW.1 made it clear that the accused has issued Ex.P1 cheque of Rs.20,00,000/- (Rupees Twenty

Lakhs only) towards discharge of debt including interest accrued thereon.

In the cross examination of PW.1, the complainant categorically stated that “the accused paid Rs.2,00,000/- (Rupees Two Lakhs only) to him

before giving cheque to him, he has filed the present complaint for entire

amount of Rs.20,00,000/- (Rupees Twenty Lakhs only) and he had not deducted the amount of Rs.2,00,000/- (Rupees Two Lakhs only) from

Rs.20,00,000/- (Rupees Twenty Lakhs only) because he thought that it has the interest amount”. So, the above evidence signifies that the amount of Rs.2,00,000/- (Rupees Two Lakhs only) repaid by the accused to the complainant was adjusted towards the interest amount of principal amount of Rs.20,00,000/- (Rupees Twenty Lakhs only). There is nothing suggest on the record from the accused side and even no suggestion emanated from the accused side to PW.1 that said repaid amount of

Rs.2,00,000/- (Rupees Two Lakhs only) is meant for deduction in the

principal amount of Rs.20,00,000/- (Rupees Twenty Lakhs only) but not

towards interest. Admittedly, the amount of Rs.20,00,000/- (Rupees

Twenty Lakhs only) given or credited by the complainant to the accused account on 3.10.2019. The Ex.P1 cheque contains the date of 25.7.2022.

Therefore, the interest of Rs.2,00,000/- (Rupees Two Lakhs only) would normally accrue on the principal amount of Rs.20,00,000/- (Rupees

Twenty Lakhs only) for those days. The accused not at all claimed in any where either while doing the cross examination of PW.1 or in adducing his evidence as DW.1 that such amount was meant for deduction in the

APAN100010932022 34 C.C. No.641/2022

principal amount. In these circumstances, the contention of complainant

that he deducted the amount of Rs.2,00,000/- (Rupees Two Lakhs only) towards interest can be believed and even under the facts and circumstances placed by the complainant any one can assume that the debtor / accused who maintains the silence as to his payment, the creditor / complainant on the other hand can appropriate it towards interest or

principal amount at the choice of creditor / complainant. In the above

circumstances, the “principle of apportionment” would come into play in favour of complainant by virtue of Section 60 of Indian Contract Act.

35. At this juncture, it is pertinent hereunder to reproduce what the “principle of apportionment” under Section 60 of Indian Contract Act would mean to say.

Section 60 of Indian Contract Act, 1872:

Application of payment where debt to be discharged

is not indicated:-

Where the debtor has omitted to intimate, and there are no other circumstances indicating to which debt the payment is to be applied, the creditor may apply it at his discretion to any lawful debt actually due and payable to him from the debtor, whether its recovery is or is not barred by the law in force for the time being as to the limitation of suits.

36. If the above “principle of apportionment” enunciated under Section 60 of Indian Contract Act applies to the facts on the hand, the accused when not given any instructions to which portion either principal or interest the payment required to be deducted, the complainant entitled to appropriate the same at his choice and

APAN100010932022 35 C.C. No.641/2022 when the complainant being PW.1 even while filing the complaint, in his chief affidavit and also in the cross examination claims that accused paid an amount of Rs.2,00,000/- (Rupees Two Lakhs only) towards interest, then, such repayment or part payment of

Rs.2,00,000/- (Rupees Two Lakhs only) can be deemed to be appropriated by the complainant towards interest amount.

Therefore, unflinchingly this court forms a view that Ex.P1 cheque contains an amount of Rs.20,00,000/- (Rupees Twenty Lakhs only) was issued for discharge of principal amount outstands by then and interest accrued thereon and thus in view of above facts and circumstances of this case, the citations / rulings relied by the learned counsel for the accused would not applicable to the facts of this case.

37. In view of the above discussion, this court of the view that the accused failed to prove his defences or not probablises his defences, and thus the accused not at all rebutted the evidence of PW.1 including presumptions available under Sections 20, 118 and 139 of Negotiable

Instruments Act. Therefore, the defences of accused cannot be believed.

Hence, this point accordingly answered against the accused.

38. POINT No.4:

Whether the complainant able to bring home the guilt of

the accused for the offence for the Section 138 r/w 142 of

N.I.Act ?

In view of the discussion made under point nos. 1 to 3 of above, the complainant proved that the accused issued Ex.P1 cheque for discharge of legally enforceable debt and such cheque has dishonored warranting

APAN100010932022 36 C.C. No.641/2022 criminal action for the offence under Section 138 of Negotiable

Instruments Act.

Hence, this point accordingly answered in favour of the complainant.

39. In the result, this court found the accused guilty for the offence punishable under Section 138 r/w 142 of Negotiable Instruments Act and he is convicted of the same under Section 255(2) Cr.P.C.

Prl. Judicial Magistrate of First Class, Penukonda.

40. Accused present and upon being questioning the accused with regard to the quantum of sentence to be imposed against him, the accused pleaded for mercy or reduction of sentence but he submits that he will pay the amount if time given by releasing him from the prison and he got dependents who depends on him. The counsel for accused submitted that if the time is granted the accused ready to pay the amount and urged the court to take lenient view in awarding sentence and granting bail. Whereas the counsel for complainant submitted that accused not deserves for any reduction of sentence and complainant suffered a lot as such imposing of maximum sentence including awarding of compensation is required and urged the court to impose maximum sentence.

41. Keeping in view of the nature of the offence and the manner it was committed by the accused who is the prominent person being a

Managing Director of Sun Crystals Private Limited and as he issued cheque to the complainant and later defied in not arranging the

APAN100010932022 37 C.C. No.641/2022 sufficient amount and as the accused used all his possible means to drag the case to the extent possible and thus this court is of the opinion that this is not a fit case for applying the provisions of Sec. 360

Cr.P.C., or the provisions of Probation of Offenders Act, 1958 and any reduction of sentence by imposing lesser sentence would result into injustice and disproportion under the facts and circumstances of this case and thus imposing some deterrent sentence would meet the ends of justice besides awarding compensation to the complainant from the accused in the fine amount going to be imposed on the accused.

42. In the result, this court found the accused guilty for the offence punishable under section 138 of Negotiable Instruments Act and the accused is sentenced to suffer simple imprisonment for a period of 2 (two) years and also to pay fine of Rs.20,00,000/- (Rupees Twenty Lakhs only) and such fine amount entitled by the complainant as a compensation. In case of the accused fails to pay the fine of Rs.20,00,000/- (Rupees Twenty Lakhs only) he shall undergo simple imprisonment of 6 (six) months and such sentence shall run consecutively. The fine amount payable by the accused is awarded as compensation to the complainant under section 357 of

Cr.P.C. r/w 117 of Negotiable Instrument Act. Accused is informed his right to prefer an appeal and right to get free legal aid from M.L.S.A or

District Legal Service or from this Court.

Typed to my dictation by the Stenographer Gr.III, corrected and

pronounced by me in open court, this the 21st day of January, 2026.

Prl. Judicial Magistrate of First Class, Penukonda.

APAN100010932022 38 C.C. No.641/2022

// APPENDIX OF EVIDENCE//

-: WITNESSES EXAMINED :-

For Complainant :- For Accused :-

PW.1: Young Kuk Shin DW.1 : K.Gopinath

Exhibits marked For Prosecution :-

Ex.P1 : Cheque bearing no.741132 issued by the accused in the name of complainant for Rs.20,00,000/-; dated 25.07.2022 Ex.P2 : Return endorsement memo issued by the HDFC bank as funds insufficient; dated 28.07.2022 Ex.P3 : Second return endorsement memo issued by the HDFC bank as funds insufficient after resubmitting the cheque for honour as per the instructions of accused; dated 12.08.2022 Ex.P4 : Legal notice got issued by the complainant to the accused;

dated 25.08.2022

Ex.P5 : Postal recept; dated 23.08.2022 Ex.P6 : Return of postal cover as refused

For Defence :- Nil

Material objects :- Nil

Prl. Judicial Magistrate of First Class

Penukonda

APAN100010932022 39 C.C. No.641/2022

CALENDAR AND JUDGMENT

IN THE COURT OF PRINCIPAL JUDICIAL MAGISTRATE

OF FIRST CLASS :: PENUKONDA

Present: Sri Masala Bujjappa,

Prl. Judicial Magistrate of First Class, Penukonda.

Wednesday, the 21st day of January, 2026.

CALENDAR CASE No.641 of 2022

Between:-

Young Kuk Shin, S/o.Shin, 48 years, R/o.Flat No.D424, Deodar Block, Brigade Orchards, Devanahalli, Bengaluru – 562110.

…... Complainant

And

Gopinath, Manager Director, Sun Crystals Pvt. Ltd., Tripura resort, near Sheep Farm, Madagaseera Road, Penukonda, Sri Sathya Sai District, Andhra Pradesh – 515110. …… Accused

Charges under section(s):138 r/w.142 of NI Act

Date of occurrence: 03.10.2019 Date of report/complaint: 10.10.2022 Date of appearance: 16.02.2023 Date of commencement of trial: 04.05.2023 Date of closure of trial: 19.01.2026 Date of Judgment: 21.01.2026 Plea of the Accused: Pleaded not guilty Finding of the Accused: Found guilty

APAN100010932022 40 C.C. No.641/2022

Result of the Case : In the result, this court found the accused guilty for the offence punishable under section 138 of Negotiable Instruments

Act and the accused is sentenced to suffer simple imprisonment for a period of 2 (two) years and also to pay fine of Rs.20,00,000/- (Rupees Twenty Lakhs only) and such fine amount entitled by the complainant as a compensation. In case of the accused fails to pay the fine of Rs.20,00,000/- (Rupees Twenty Lakhs only) he shall undergo simple imprisonment of 6 (six) months and such sentence shall run consecutively. The fine amount payable by the accused is awarded as compensation to the complainant under section 357 of

Cr.P.C. r/w 117 of Negotiable Instrument Act. Accused is informed his right to prefer an appeal and right to get free legal aid from M.L.S.A or

District Legal Service or from this Court.

Explanation for the delay: Nil

SEAL:

Prl. Judicial Magistrate of First Class Penukonda

APAN100001452020 1 M.C. No. 1/2020

IN THE COURT OF PRL. JUDICIAL MAGISTRATE OF FIRST CLASS ::

PENUKONDA

Present: Sri Masala Bujjappa, Prl. Judicial Magistrate of First Class, Penukonda.

Monday, the 07th day of July, 2025

MAINTENANCE CASE No.1 of 2020

Between:-

1. P. Padmabai, W/o. A. Balajinaik, D/o. P. Anjenaik, 32 years,

2. A. Mahidharnaik, S/o. A. Balajinaik, 5 years,

3. A. Sruthi, D/o A.Balajinaik, 3 ½ years, Petitioners 2 and 3 are minors in the care and custody of their mother i.e., the first petitioner and all dependents residing at Velagamekalpalli Thanda of Somandepalli mandal. …. Petitioners 1 to 3

And

A. Balajinaik, S/o. A. Ranganaik, 44 years, Sugali, working as a conductor in APSRTC, Puttaparthy depot, permanent resident of Naginayinicheruvu Thanda, Somandepalli mandal. …. Respondent

This petition coming on 27.06.2025 before me for final hearing in the presence of Sri J.Prathapa Reddy, Advocate for the Petitioners and Sri Md.Asif, Advocate for the Respondent and this matter having stood over for consideration till this day, this court made the following :

O R D E R

1) This is a maintenance petition filed under section 125 of Code of Criminal

Procedure (In short Cr.P.C.) by the petitioners against the respondent for grant of maintenance amount.

APAN100001452020 2 M.C. No. 1/2020

2) a)As glean from the petition it is the case of the petitioner that the petitioner is a legally wedded wife of the respondent and the petitioner no.2 and 3 are the children of petitioner no.1 through the respondent and the marriage between the petitioner no.1 and respondent was solemnized on 25-04-2012 at the parents' house of petitioner No. 1 at Velagamekalapalli Thanda of Somandepalli mandal with caste customs prevailing in their community and the marriage between the petitioner no.1 and the respondent was solemnized and at the time of marriage the parents of petitioner no.1 gave Rs.1,90,000/- (Rupees One lakh and Ninty thousand only) in cash and has given one motorcycle as dowry to the respondent and presented 11 tolas of gold ornaments to petitioner No. 1 and spent more than 3 lakh rupees towards marriage expenses and immediately after the marriage, the petitioner no.1 joined with the respondent at Naginayinicheuruvu Thanda of

Somandepalli mandal and the petitioner no.1 and the respondent lived together happily for a period of 15 days and out of wedlock the petitioner No.1 gave birth to the petitioners 2 and 3 herein and the petitioner submitted that 15 days after the marriage, the respondent used to beat the petitioner no.1 in drunken state of mind without any fault and used to harass her like anything and after that the respondent demanded petitioner no.1 to bring additional dowry from her parents' house and the respondent had also harassed petitioner no.1 at the instigation of his near relatives and the respondent was also demanded the petitioner no.1 for mutual consent divorce and to enable the respondent to perform a second marriage and also the respondent suspected petitioner no.1's fidelity and used to take photos of the petitioner no.1 while she was taking bath and the respondent used to beat petitioner no.1 at night by putting clothes in her mouth and the Petitioner No. 1 is not in a position to bring additional dowry from her parents as they were already in debt for performing her marriage with the respondent.

APAN100001452020 3 M.C. No. 1/2020

(b) It is further stated by the petitioner in the petition that the respondent has never acted as a dutiful husband and he never took any care of the petitioners and not provided anything to the maintenance of the petitioners and on 4.4.2016 the respondent and his relatives tried to do away the petitioner No. 1 and after knowing the same the petitioner no.1 left the village at night and reached her parents' house at Velagamekalapalli thanda and also the respondent harassed her both mentally and physically and driven out the petitioners from their matrimonial home and since then the petitioners are taking shelter at her parents' house at Velagamekalapalli thanda, Somandepalli mandal and since the desertion, the respondent had not provided anything for their maintenance and then they filed M.C. No.6/17 on the file of this Honorable Court and during the pendency of the said maintenance case and at the intervention of the elders, the respondent took the petitioners back to the matrimonial home and lived together for some period and again the same harassment was committed by the respondent and driven out the petitioners from the matrimonial home about 6 months back from the filing of this maintenance case.

(c) It is further stated by the petitioner in the petition that several panchayats were conducted with the help of elders but the respondent had not changed his attitude with the petitioners and refused to receive the petitioners to the matrimonial home and the respondent deserted the petitioners without any fault of them and is not providing any maintenance to the petitioners and the parents of petitioner no.1 are not in a position to maintain the petitioners as they were already drowned in debts by performing the marriage of petitioner no.1 with the respondent and at present the petitioners have no source of income and it is the respondent's bounden duty to maintain the petitioners and the respondent is a government employee drawing a monthly salary of Rs.45,000/- per month and apart from the

APAN100001452020 4 M.C. No. 1/2020 employment he is also having agricultural land and getting yearly income of

Rs.5,00,000/- from cultivation and the respondent is having sufficient means to maintain the petitioners and the petitioner no.1 requires Rs.10,000/- per month for her clothes, medicine, food and house rent and the petitioners 2 and 3 are required

Rs.5,000/- each per month for their maintenance and though the respondent is having sufficient means to pay the maintenance to the petitioners and the respondent intentionally not providing anything to them and hence the petitioners has no other option except to file this petition for maintenance. It is further claimed by the petitioners that the petitioner no.1 requires Rs.10,000/- per month and the petitioner nos.2 and 3 requires Rs.5,000/- each per month for maintenance and urged the court to allow the petition and grant maintenance.

3) a) On the other hand, the respondent filed detailed counter while admitting the marriage of him with the petitioner no.1 and his parental-ship towards petitioner no.2 and 3 denied all other allegations made in the petition and submitted that the respondent never neglected the petitioners nor refused to take care of them and the petitioner no.1 has already filed a petition for maintenance in M.C.6/2017 and subsequently the said petition was dismissed due to compromise and the petitioner no.1 joined the respondent at his matrimonial home and she only left the matrimonial company of the respondent at her own accord voluntarily without any justifiable reason and further submitted that the respondent brought the petitioner no.1 to his matrimonial house to lead a happy marital life but the petitioner no.1 was reluctant to reside with parents of the respondent under one roof and the petitioner no.1 was brought up in Mumbai and she has been habituated to city life and the petitioner no.1 always used to demand the respondent to provide better and luxurious facilities and costly cosmetics and the respondent convinced her that he has to maintain his family and aged parents within his salary and that she should

APAN100001452020 5 M.C. No. 1/2020 depart with such desires and to adjust the living within the salary of the respondent but the petitioner no.1 did not listen to him and continued her demands and the petitioner no.1 further started to insist that respondent to shift his family to her parent's house as she is not interested in living with her parents-in-law under one roof and the respondent convinced the petitioner no.1 many times but she did not listened to the respondent and she was not at all attending any house hold work and used to pickup quarrels with the respondent and his aged parents for simple and negligible things and used to make the atmosphere of the house like a hell and due to the ill atmosphere created by petitioner no.1, the mother of the respondent died in the month of January 2017 and even then the petitioner no.1 did not change her attitude and continued the same and as the respondent did not follow the dictates of petitioner No. 1 inspite of her different efforts, she left the matrimonial house of the respondent voluntarily without the respondent's consent and later on at the ill advise of some litigant brains, she filed a false complaint against the respondent and his father Ranga Naik, brother Hathiram Naik and his wife Sharada

Bai with false allegations to the Penukonda Police who in turn registered a case under Section 498-A LP.C. and further the petitioner no.1 again filed a petition for maintenance on the file of this Honble Court in M.C.06/2017 against the respondent and after filing cases the petitioner no.1 went to Mumbai and did not turn up for about a year and subsequently the respondent conveyed panchayats and convinced petitioner no.1 to join him for the sake of children and assured to provide better facilities with his best efforts and then the petitioner no.1 again joined the respondent and both cases were ended in compromise and on the demand of petitioner no.1, the respondent put up his family in Penukonda Town but the petitioner no.1 as usual resumed her persecution and continued the same inspite of repeated requests of respondent and the respondent tried with all his finest efforts to provide paramount facilities to the petitioners by spending his entire salary and

APAN100001452020 6 M.C. No. 1/2020 even then the petitioner no.1 was not happy and used to quarrel with the respondent daily and not allowing him to have marital cohabitation and also the petitioner no.1 also spoiled the children's brains against the respondent and not allowing them to meet their father / respondent and the petitioner No. 1 used to shut the doors if respondent fails to come home before 9 PM and the respondent used to sleep outside the house without food as he did not want to make any issues and rupture in the street and the respondent concealed the misbehavior and adamant attitude of petitioner no.1 for the sake of good status and for the bright future of his children but the petitioner no.1 is least concerned with maintaining a good reputation and taking care of the family and the petitioner no.1 was always interested in wandering around here and there with her so called friends and used to spend the entire salary of the respondent lavishly as per her whims and fancies and the petitioner no.1 used to defame and degrade the respondent before her friends and relatives for not getting good salary and to lower down his image as he is a mismatch to her but the respondent tolerated everything for the sake of his children and a hope that she might change her attitude.

b) It is further submitted in the counter that on 6.10.2019 the petitioner no.1 did not allow the respondent into the house as he came a little late as he went to his village to see his father and she also shouted and created a havoc in the street with false allegations against the respondent and the respondent was ashamed before the people due to the behavior of petitioner no. 1 and on the very next day the petitioner no. 1 left the house by locking from the outside and unfortunately the parents of petitioner no.1 who are supposed to reprimand their daughter, supported her blindly in all means and the respondent made several efforts to bring back the petitioner no. 1 under his marital fold and requested her to join even for the sake of children but she paid deaf ear to the same and did not allow the respondent to see

APAN100001452020 7 M.C. No. 1/2020 his children and she has been seriously trying to create a rift between the respondent and his children and also the petitioner no. 1 also did not hand over the keys of the house to the respondent and she visits the house now and then and the petitioner no. 1 left the company of respondent without any justifiable cause and miserably failed to join the respondent inspite of his repeated requests and the respondent has grown weary of the daily tension and torture imposed by petitioner no.1 and has openly declared that she has no interest in leading a marital life with the respondent and the respondent has concluded to put an end to the day-to-day tension and is inclined to cut off the marital tie existing between himself and the petitioner no.1, as there is no hope of change in the attitude of petitioner no.1 and filed a suit for dissolution of marriage against petitioner no.1 before this Hon’ble

Court and the same is pending in O.S.No.343/2019.

c) It is further submitted in the counter that the petitioner no.1 deserted the respondent and left her matrimonial house on her own consent and did not join despite repeated requests from respondent and thus she is not entitled for maintenance and that too she has been running a cloth store at Penukonda and earning Rs.30,000 per month and whereas the respondent is drawing a salary of

Rs.26,000/- out of which Rs. 9,000/- per month will be deducted towards statutory deductions and further an amount of Rs.12,400/- P.M. is deducted towards two loans available by the respondent from SBI, Penukonda and the said loans availed by the respondent and thus the said loans available by the respondent for the expenses of his family and for medical treatment and thus the respondent used to attend overtime duties and receives only 7 to 8 thousand rupees per month which includes the payment of overtime duties and the respondent is very much ready and willing to take up petitioner nos.2 and 3 and to provide them with better education and the respondent is going to file a petition for the custody of petitioner

APAN100001452020 8 M.C. No. 1/2020 nos.2 and 3 and the respondent is not liable to pay maintenance to petitioner no.1 as she left the matrimonial home of respondent voluntarily and respondent is ready to take the custody of petitioner no.2 and 3 and prayed to dismiss the petition by directing the petitioner no.1 to handover the custody of petitioner no.2 and 3 to the respondent in the interest of justice.

4) On behalf of petitioner, the petitioner herself examined as PW.1 and got marked Ex.P1 document. On the other hand, as the respondent himself examined as RW.1 and got marked Ex.R1 to R6 documents.

5) Both sides chosen to file written arguments and such written arguments is on the record, they have not reproduced here to avoid repetitions. Perused the material on record including written arguments of both sides.

6)Now the points for consideration are:-

1) Whether the petitioner no.1 being a wife of respondent and the petitioner nos.2 and 3 are children of respondent was got neglected and refused to maintain them by the respondent ?

2) Whether the petitioners proves lack of means for the petitioners and means of the respondent for grant of maintenance to the petitioners ?

3) Whether the petitioner nos.1 to 3 are entitled for grant of maintenance against the respondent or otherwise?

7. POINT No.1:-

Whether the petitioner no.1 being a wife of respondent and the

petitioner nos.2 and 3 are children of respondent was got neglected and

refused to maintain them by the respondent ?

APAN100001452020 9 M.C. No. 1/2020

In cases of maintenance for ordering the maintenance from the respondent to the petitioner nos.1 to 3, it requires to establish that petitioners must be either wife or minor children or parents of the respondent and such petitioners must not have sufficient means to maintain themselves and whereas the respondent must have means to maintain the petitioners but refused or neglected to maintain them. To summarize the above, the petitioners must place before this court following factors:

a) the petitioner no.1 must be the wife of respondent

b) the petitioner nos.2 and 3 must be the children of respondent

c) the petitioner nos.1 to 3 must not have means to maintain themselves and

d) the respondent must have means capable to provide the same towards maintenance and

e) the respondent either refused or neglected to maintain the petitioners.

8) In order to prove above factors during the course of enquiry on behalf of the petitioners, the petitioner no.1 herself examined as PW.1 and marked Ex.P.1 document. The petitioner no.1 is examined as PW.1. She filed her chief affidavit in lieu of her examination where in she reiterated the contents of maintenance case petition. Through her, Ex.P.1 – Wedding Invitation card of the petitioner no.1 and respondent is received in evidence. Further, the respondent by filing counter not disputed the relationship of him with the petitioner no.1 as a husband and the petitioner no.2 and 3 are the children of petitioner no.1 and respondent. Therefore, it became a undisputed fact regarding the relationship between the petitioner no.1 and respondent. So, the petitioner established a fact that the petitioner no.1 is the wife of respondent and petitioner nos.2 and 3 are children of petitioner no.1 and respondent. Therefore, it is the testimony of the petitioner no.1 evidence as PW.1 on the record showing that she married the respondent on 25.04.2012. So, the

APAN100001452020 10 M.C. No. 1/2020 evidence of petitioner no.1 coupled with petition contents establishing the relationship of the petitioner no.1 with the respondent as wife and petitioner no.2 and 3 are their children.

9) The petitioner has stated in the petition and her chief affidavit about giving of Rs.1,90,000/- of cash and one motor cycle as dowry to the respondent and presented 11 tolas of gold ornaments to the petitioner no.1 at the time of marriage and incurring of more than Rs.3,00,000/- towards marriage expenses. This claim of the petitioner was specifically denied by the respondent in his counter as absolute false and also adduced his evidence as RW.1 denying such giving of dowry to him.

It is not the case of the petitioner that the respondent felt insufficiency of dowry or shortage in giving dowry to him and that made the respondent to harass the petitioner no.1 for such insufficient dowry. Therefore, discussion as to so called alleged dowry said to be given at the time of marriage is ignored as under the facts and circumstances of this M.C., such giving of dowry at the time of marriage having no seminal importance on the subsequent events said to be taken place between the petitioner and respondent that lead to filing of this M.C. by the petitioner against the respondent.

10) It is the claim of the petitioner that after she got marriage with the respondent both lived happily for 15 days and thereafter respondent harassed her for additional dowry, suspecting her fidelity and as respondent with the help of his relatives try to do away the life of her, then she left the matrimonial home and taken shelter at her parental house and thereafter she filed M.C.6/2017 and subsequently due to the intervention of elders respondent took back her for leading marital life.

Whereas, the respondent stated that the petitioner who born and brought up in

Bombay accustomed to city life and petitioner used to harass the respondent to

APAN100001452020 11 M.C. No. 1/2020 provide luxury maintenance at par with people at Bombay and also to set up separate family away from parents of the respondent and as the respondent not heeded for the said demands, the petitioner intensified her harassment and even she used to not allow the respondent into the house if he comes to the home with little late and finally as the respondent not followed the dictates of petitioner she left the matrimonial home and filed a police case under section 498A IPC and also

M.C. 6/2017 against him and subsequently due to the intervention of elders said

cases were ended in compromise and petitioner has joined with leading marital life.

Both the petitioner and respondent has admitted about previous cases filed by the petitioner were ended in compromise. Therefore, it appears from the record that case filed by the petitioner for the offence u/s 498A IPC and maintenance case were ended in compromise and subsequently again this MC case was filed by the petitioner. In these circumstances, the evidence of both sides must be evaluated strictly.

11) Does the petitioner proves alleged harassment unleashed by the respondent?

a) It is the claim of the petitioner that “after 15 days of marriage, the respondent in drunken state started harassing her both physically and mentally for the sake of additional dowry, for mutual divorce and also suspecting fidelity of the petitioner no.1 and the respondent used to beat the petitioner no.1 during nights by putting clothes into her mouth”. The petitioner adduced her evidence as PW.1 and reiterated the above allegations as to harassment. PW.1 was cross examined by the respondent counsel denying the above allegations and suggested that the petitioner harassed the respondent and pressurized the respondent to set up separate family from his parents and used to trouble the respondent to provide

APAN100001452020 12 M.C. No. 1/2020 facilities and apparels to the standards of people of Bombay as the petitioner born and brought up in the Bombay and accustomed to the living standards at Bombay and this suggestion denied by the petitioner. Petitioner not adduced any other evidence on her behalf to corroborate her version. Therefore, only solitary testimony of petitioner as PW.1 alone stood on the record.

b) Whereas, the respondent who filed his counter denied the above allegations of the petitioner and also adduced his evidence as RW.1 denying the above allegations and claimed that “the petitioner as born and brought up in

Mumbai, on account of the same she accustomed to the city life and on that she always used to demand the respondent to provide better facilities and luxurious to her even though respondent convinced her that he has to maintain family and aged parents within the salary of him only and desist such desires and adjust to live within the salary of the petitioner, even then the petitioner has not convinced with the request of the respondent used to pick up a quarrel with him and his aged parents for simple and negligible things as such the petitioner has left matrimonial home voluntarily without his consent and later on the ill advise of some litigant brains she preferred a false complaint against him and his family for the offence u/s.498A IPC and also petitioner no.1 has filed maintenance petition vide MC.

6/2017 and thereafter on conveying of panchayats, elders convinced the petitioner for the sake of kids and on that the petitioner again joined with the respondent and both cases were compromised”. It is further stated by the respondent in his counter and also adduced his evidence as RW.1 stating that “thereafter on the demand of petitioner he has set up a separate family in Penukonda town, even then the petitioner started persecuting the respondent to provide luxurious facilities and even used to pick up quarrel with the respondent and not allowed him to have a marital cohabitation and further if the respondent for any other reason comes late to

APAN100001452020 13 M.C. No. 1/2020 the home she did not allows the respondent into the home and on 6.10.2019 the petitioner not allowed the respondent into the house on account of respondent came little late and on that petitioner shouted at the respondent and created havoc in street and made the respondent to sleep outside the house and on the next day petitioner in the morning hours itself left the matrimonial home”.

c) Though RW.1 cross examined by the petitioner counsel but there is no single suggestion atleast proceeded from the petitioner side to the respondent /

RW.1 regarding alleged demand of additional dowry. During the cross examination of RW.1 there is no suggestion made by the petitioner counsel suggesting that the respondent harassed the respondent for additional dowry. So, when the petitioner who claims in her petition and in her chief examination (chief affidavit) that the respondent harassed her for additional dowry, then such allegation should be posed to the respondent atleast by way of suggestion during the cross examination of RW.1. There is no such efforts made from the petitioner side. There is no giving of specific details as to what amount was demanded and when such demand was made. This lacuna on the part of petitioner side suggest that there is a hollowness in the contention of the petitioner regarding the alleged harassment as to the

additional dowry.

d) Though the petitioner claims in her petition and also adduced her evidence as PW.1 alleging that the respondent as suspected her fidelity and harassed her by physically assaulting her in drunken state and at one point of time the respondent tried to gagged her to do away the life of her but such evidence denied by the respondent by doing cross examination and also by filing counter besides adducing his evidence as RW.1 and claimed that it is the petitioner has harassed the respondent with a demand to provide luxurious life style and also to set up a

APAN100001452020 14 M.C. No. 1/2020 separate family away from parents of the respondent and after previous cases filed by the petitioner ended in compromise and despite respondent set up a separate family, the petitioner has demanded for amenities of high standards and as the respondent not met such demands she has withdrawn from the matrimonial home during the times of 6.10.2019. Despite, RW.1 was cross examined by the petitioner side nothing significant elicited in support of the contention of the petitioner or to negate the evidence of RW.1 in respect of the allegations made by the respondent.

e) In the above circumstances, as there is a hollowness as to alleged harassment regarding the demand of additional dowry and also no corroborative evidence proceeded from the petitioner side to support allegations as to alleged harassment said to be unleashed by the respondent, this court as no other go to feel that the allegations as to harassment claimed by the petitioner is not inspiring the court confidence and by and large such allegations appears to be fictional one.

12) Does the petitioner forced to withdraw the company of the respondent or else she has driven out of the matrimonial house?

a) It is specific claim of the petitioner no.1 at para no.7 of petition that “on 4.4.2016 the respondent and his relatives tried to do away the life of her and after knowing the same the petitioner no.1 has left the matrimonial village in the night and reached to her parents house in Velagamekalapalli Thanda”. Again the petitioner in the same para no. 7 of petition claimed that “the respondent harassed both mentally and physically and driven out the petitioner from matrimonial home and since then petitioner taking shelter at her parents house at Velagamekalapalli

Thanda, Somandepalli mandal”. Even at para no.11 of petition meant for “cause of

APAN100001452020 15 M.C. No. 1/2020 action” it is claimed that “cause of action arose for the petitioner arises when the respondent necked out the petitioner from the matrimonial home about 6 months back”. So, the excerpts of petition contents of above itself stood paradoxical as to petitioner was forced to withdrawn from the matrimonial home or as to the petitioner was driven out of the house. This ambiguity also a hollowness in the claim and contention of the petitioner regarding her departure from the matrimonial home and thus this discrepancy is impediment for construing refusal to maintain petitioners.

b) The petitioner by adducing her evidence as PW.1 though claims in para no. 4 of her chief affidavit that “after cases filed by her ended in compromise she has taken back to the matrimonial home and there she has lived with the petitioner for some period and again respondent committed same harassment and driven out the petitioners from the matrimonial home from six months back before filing this

MC”. Whereas, the respondent by filing his counter and also adducing his evidence as RW.1 claimed that after cases were filed by the petitioner were compromised due to intervention of elders he has put up a separate family in Penukonda and after some time the petitioner again harassed the respondent and during the time of 6.10.2019 she has left the matrimonial home on her own accord. While both sides contention and their evidence in chief examination (chief affidavit contents) stood above but PW.1 was cross examined by the respondent counsel and in the cross examination PW.1 has admitted that “as per the compromise and on the advise of elders the respondent and herself started living in Penukonda” and the respondent counsel suggested to PW1/petitioner that “despite respondent set up separate family in Penukonda she unable to mend her behaviour and used to demand the respondent to meet luxurious lifestyle and when ever the respondent comes to the home in late night she did not permit him into the house and used to pick up quarrel with the respondent and on 6.10.2019 she voluntarily withdrawn the company of the

APAN100001452020 16 M.C. No. 1/2020 respondent and living separately”. This suggestion though denied by the petitioner /

PW.1 but she has admitted about the respondent setting up of separate family in

Penukonda itself. Whereas the petitioner has stated in her petition that “during the pendency of the M.C.6/2017, at the intervention of the elders, the respondent has taken back the petitioners to the matrimonial home and lived together for some period”. So, the petitioner suppressed the fact of respondent setting up of separate marital home at Penukonda away from parents of the respondent living in

Naginayinicheruvu Thanda and petitioner tried to project that respondent taken back her to the matrimonial home at Naginayinicheruvu Thanda where the marital home of the petitioner and respondent has began soon after the marriage.

c) The above suppression of fact of setting up of separate marital home by the respondent at Penukonda, there petitioner joined with the respondent for leading marital life is almost nearest to the contention of the respondent that demand of petitioner to set up separate family in Penukonda is met by respondent.

Therefore, it is more probable to believe the respondent contention that “petitioner harassed the respondent for same demand to provide luxurious, she did not allow the respondent into the home on his late coming and subsequently petitioner herself left the said marital home of Penukonda”.

d) In the above circumstances, when the contention and claim of the petitioner found with ambiguity for the reason that she at one point of time claims that “she was forced to left the matrimonial home and at another point of time she claims that she was driven out (necked out) of the matrimonial home”, and also when the respondent contention as to setting up of separate family at Penukonda on the demand of petitioner is admitted by the petitioner, then the allegation of petitioner that either “she was forced to withdraw from the matrimonial home of

APAN100001452020 17 M.C. No. 1/2020

Naginayinicheruvu Thanda or she was driven out (necked out) of the matrimonial home of Naginayinicheruvu Thanda” is appears to be false one.

13) Does the claim of the petitioner that respondent refused to receive the petitioner to the matrimonial home is real ?

a) it is claimed by the petitioner in para no.9 of petitioner that “despite number of panchayats were conducted with the help of elders the respondent not changed his attitude with the petitioners and refused to receive the petitioners to the matrimonial home and the respondent deserted the petitioners without any fault of them and not providing maintenance to the petitioners”. Whereas, the respondent claimed in the counter that “the petitioner no.1 left the company of the respondent without any justifiable cause and miserably failed to join the respondent inspite of his repeated requests and as the respondent vexed with the attitude of the petitioner no.1 and as petitioner no.1 openly declares her non interest to lead marital life, the respondent has filed suit for dissolution of marriage in OS.

No.343/2019 before the court” and also claimed in the counter that “the respondent is very much ready and willing to take the petitioner no.2 and 3 and provide better education”.

b) In the cross examination the petitioner being PW.1 has admitted that respondent conveyed the panchayats headed by the elders wherein she has participated. Immediately the respondent counsel suggested that even then she refused to join with the respondent despite respondent made best efforts and finally filed a suit for divorce in OS.No.343/2019 and this suggestion denied by the petitioner. But, in the subsequent cross examination, PW.1 admitted that “respondent filed suit in OS No. 343/2019 against her for grant of divorce and

APAN100001452020 18 M.C. No. 1/2020 refused to receive the summons and did not engaged the counsel in the said suit”.

The above evidence found in the cross examination of PW.1 is very proximate to the contention of the respondent as to respondent ensuring to hold panchayats for marital reunion and subsequently filing of the suit in OS. No.343/2019 for dissolution of the marriage on account of petitioner refused to join with the respondent. It is suggested by the respondent counsel to the PW.1 finally that “ respondent always ready to maintain the children and to educate them but it is her to refuse to cooperate with the respondent for education of her children”. So, by way of suggestion the respondent maintains his readiness always for the welfare of the 2nd and 3rd petitioners. In the above circumstances as the evidence of petitioner not inspiring the court confidence, besides that her evidence lacks supportive evidence or corroborative evidence and when the evidence of respondent side is having probability to believe regarding petitioner herself withdrawn from the matrimonial home and respondent subsequently conveying panchayats for reunion and finally as there is no ray of hope filing of divorce suit in OS No.343/2019 and respondent readiness to maintain the 2nd and 3rd petitioners, then it is the petitioner at fault in not joining with the respondent for leading marital life even though the respondent ready to maintain the petitioners.

c) In the above circumstances, this court feels that the petitioners fails to prove that the respondent refused or neglected the petitioners.

Hence, this point accordingly answered against the petitioners.

14. POINT NO.2:-

Whether the petitioners proves lack of means for the petitioners and

means of the respondent for grant of maintenance to the petitioners?

APAN100001452020 19 M.C. No. 1/2020

a) In cases of maintenance, the burden is on the petitioner to prove that “petitioners has no means or insufficient means to maintain themselves and on the other hand the respondent got sufficient means capable to provide maintenance”.

The petitioner in her petition claims that since the time of desertion by the respondent, the respondent not providing anything for the maintenance of the petitioners and even though panchayats were conducted with the help of elders but the respondent refused to receive the petitioners to matrimonial home and the respondent deserted them without any fault of the petitioners and not providing maintenance to the petitioners and claimed that petitioner no.1 is not in a position to maintain themselves and the respondent on the other hand being a Government employee has drawing handsome salary of Rs.45,000/- per month apart from having agricultural lands and getting income of Rs.5,00,000/- from the cultivation source and finally petitioner claims Rs.10,000/- per month to the petitioner no.1 and

Rs.5000/- for the petitioner nos.2 and 3 each.

b) On the other hand the respondent who filed his counter claims that it is the petitioner deserted by voluntarily withdrawing from matrimonial society, petitioner no.1 did not joined with the respondent inspite of repeated requests and petitioner no.1 is running a cloth store in Penukonda earning Rs.30,000/- per month and on that she is not entitled for the maintenance. The respondent also claimed that he is drawing only salary of Rs.26,000/- out of which Rs.9000/- per month will goes to the statutory deductions and another Rs.12,000/- per month is deducting per month to the two loans availed by the respondent for maintenance of family and medical treatment. So, both side contentions as to means is stood as above.

APAN100001452020 20 M.C. No. 1/2020

c) Though the petitioner no.1 by adducing her evidence as PW.1 reiterated in her chief affidavit that petitioners are unable to maintain themselves, the respondent not providing any maintenance from the time of desertion by the respondent and respondent being a Government employee earning Rs.45,000/- per month besides having agriculture land and yearly income of Rs.5,00,000/- thereon but in the cross examination done by the respondent, PW.1 categorically admitted that “she is maintaining the cloth shop”. This admission of PW.1 regarding maintaining of cloth shop is buttressing the claim of the respondent that petitioner no.1 running a cloth shop in Penukonda and earning an amount of Rs.30,000/-.

Though the petitioner tried to clarify in the evidence that such shop belongs to her mother and she is working in it for amount but such statement cannot be believed for the reason that she did not stated either in her petition or in her chief affidavit or in affidavit of assets and liabilities of petitioner side about her working in the shop said to be belongs to her mother and working there for an amount. So, the admission made by the PW.1 regarding her maintaining a cloth shop in Penukonda or working in the cloth shop for amount is very proximate to the contention of respondent made in the counter as well as in his evidence as RW.1. Suppression of either running of the cloth shop or maintaining of the cloth shop or earning of amount in the said cloth shop is considered suppression of income of the petitioner which depriving the court to evaluate the maintenance amount.

d) It is very pertinent here to state that the Hon’ble Supreme Court in its landmark ruling given in between Rajinesh vs Neha (2020)mandated disclosure of income of parties to the maintenance petitions / proceedings and such source of income should be furnished in the Affidavit of Assets and Liabilities of parties to the maintenance proceedings. Such disclosure as to income is necessary for determining the quantum of maintenance. Even in subsequent ruling of the Hon’ble

APAN100001452020 21 M.C. No. 1/2020

Supreme Court in Aditi (Mithi) vs Jitesh Sharma (2023) has reiterated comprehensive framework for disclosure of financial source given in Rajinesh vs

Neha ruling for maintenance cases. Here this case on the hand the petitioner has not stated either in her petition or atleast in affidavit of assets and liabilities regarding either maintaining cloth shop or working in it for amount. Non furnishing of such earning capacity details in the affidavit of assets and liabilities of the petitioner side is a factor to consider adversely as against the petitioners. In these circumstances, contention of the respondent that the petitioner running a cloth shop in Penukonda and earning an amount of Rs.30,000/- per month is proximate probability. So, it appears that the petitioner no.1 having means has resorted to file this maintenance case against the respondent.

e) On the other hand, the respondent also adduced his evidence as RW.1 reiterating his contention that he is earning Rs.26,000/- out of which Rs.9000/- went for statutory deductions and Rs.12,000/- went for EMIs of two loans availed in SBI for the sake of family expenses and medical expenses. The respondent being

RW.1 got marked Ex.R1 – medical prescription; Ex.R2 – Bank account statements and Ex.R3 to R6 – salary pay slips for the years of 2023 and 2024. Though RW.1 cross examined by the petitioner counsel nothing significant elicited to discard the evidence of RW.1 and suggestion of “Ex.R3 to R6 are only calculations memo” is denied by the respondent . Ex.R3 to R6 is a salary slips which is obtained from online certified by Deputy Superintendent of APSRTC, Penukonda department.

These Ex.R3 to R6 clearly showing that after deductions the respondent is getting an amount of Rs.16,000/- around to his hand. Ex.R3 to R6 showing that the respondent salary to some extent goes towards mandatory deductions and an amount of Rs.11,420 around towards CCS – EDL deduction. Ex.R2 shows that the respondent even paying monthly EMI towards loan availed in the SBI. Though

APAN100001452020 22 M.C. No. 1/2020

RW.1 was suggested that the deductions shown in R3 to R6 would be returnable to him on his retirement but such suggestion is itself conceding the meager salary receiving by the respondent. The respondent has to pay EMI towards Ex.R2 loan.

Furthermore, during the course of cross examination of PW.1 (petitioner), she has admitted that respondent is burdened with looking after his father and younger brother. So, in the above circumstances, the amount receiving to the hands of the respondent from salary is hardly sufficient to maintain himself and his aged father.

Therefore, the respondent having a meager salary which is not capable enough to provide maintenance to the petitioners.

f) In view of suppression of means possessed by the petitioner in running cloth shop in Penukonda and in view of meager salary getting by the respondent which is not capable to provide maintenance to the petitioner, this court is of view that the petitioners are not entitled for the maintenance from the respondent.

Hence, this point accordingly answered against the petitioners.

15. POINT NO.3:-

Whether the petitioner nos.1 to 3 are entitled for grant of maintenance

against the respondent or otherwise ?

In view of the discussion made under the point nos.1 and 2 of above, the petitioners are not entitled for the maintenance.

Hence, this point is accordingly answered against the petitioners.

APAN100001452020 23 M.C. No. 1/2020

18) IN THE RESULT, this petition is dismissed. No Costs.

Typed to my dictation by the Stenographer Gr.III, corrected and pronounced by me in open Court on this the 07 th day of July, 2025.

Prl. Judicial Magistrate of First Class Penukonda

APPENDIX OF EVIDENCE

Witness examined for :

Petitioners Respondent

PW.1P.Padma BaiRW.1 : A. Balaji Naik

Exhibits marked for the Petitioner:

Ex.P1 : Wedding invitation card

Exhibits marked for the Respondent : -

Ex.R1 : Medical prescription of respondent (marked subject to objection since such medical record is photostat copies)

Ex.R2 : Bank Account statement of respondent (marked subject to objection since statement of account not attested by the banker)

Ex.R3 : Salary pay slip for month of March, 2024 issued Deputy Superintendent (T)

APSRTC, Penukonda depot.

Ex.R4 : Salary pay slip for month of April, 2024 issued Deputy Superintendent (T)

APSRTC, Penukonda depot.

APAN100001452020 24 M.C. No. 1/2020

Ex.R5 : Salary pay slip for month of August, 2023 issued Deputy Superintendent (T) APSRTC, Penukonda depot.

Ex.R6 : Salary pay slip for month of September, 2024 issued Deputy

Superintendent (T) APSRTC, Penukonda depot.

P.J.F.C.M./PKD

APAN100008462017 1 O.S.No.365/2017

IN THE COURT OF THE PRINCIPAL CIVIL JUDGE (JUNIOR DIVISION),

PENUKONDA

Present: Sri MASALA BUJJAPPA,

Principal Civil Judge (Junior Division), Penukonda.

Friday, this the 08th day of May, 2026.

ORIGINAL SUIT No. 365 of 2017

BETWEEN:

Madiga Gangamma w/o Madiga Anjanappa, 68 years, Cultivation, residing at Kondapuram village, Penukonda mandal, Anantapuramu district. Pin code: 515110.

......... Plaintiff

-Versus-

1.M. Sahithi Priya D/o Late. M. Jayuaramulu @ Jayaram, aged 9 years,

2.M. Pavani Priya D/o Late. M. Jayuaramulu @ Jayaram, aged 2 years, Both are Minors, dependents, Represented by next friend, guardian, Grand father, Rekkapogula Sunkanna, Father's name not known, 70 years, Coolie, Residing at D.No. 1/444, HMT Colony, Near Community Hall, Penukonda – 515110.

......... Defendant Nos.1 and 2

This suit is presented before me on 07.05.2026 for hearing in the presence of Sri L. Viswanath, Advocate for plaintiff and Sri K.Gundachari, Advocate for the defendants and the matter having stood over for consideration till today and the Court delivered the following:-

- : : JUDGMENT : : -

01. This is a suit filed by the plaintiff against the defendants seeking the court relief of partition and to deliver separate possession of plaintiff’s 1/4th share in the suit schedule properties and for costs.

02. The averments of the plaint in nut shell stood as follows :-

APAN100008462017 2 O.S.No.365/2017

(a) It is claim of the plaintiff as per the plaint that one. M. Jayaramulu @ Jayaram, S.G. Teacher in MPP School, Chandragiri village of Penukonda mandal was died on 14.10.2015 in Colombia Asia Hospital, Bangalore while undergoing treatment for his stomach ache leaving behind him his widow

Ramanjulamma, his two minor daughters M.Sahithi Priya and M.Pavani

Priya, i.e., the defendants herein and his mother Gangamma i.e. the plaintiff herein to succeed his estate and later on within a week of demise of

M.Jayaramulu, his wife R.Ramanjulamma also committed suicide by hanging on 21.10.2015 and consequent on the death of Jayaramulu, his legal heirs are entitled to his death benefits shown in Schedule ‘A’ of the plaint and during the lifetime of Jayaramulu, he had obtained a postal life

Insurance policy vide Policy No. AP-YS-411976-CS dated 31.3.2010 for an amount of Rs.3,00,000/- which is more described in Plaint ‘B’ Schedule and further he also purchased plaint ‘C’ schedule property which is a house site under a registered sale deed dated 7.3.2013 for a valuable consideration of

Rs.88,000/- and was in possession and enjoyment of the said property and so after the demise of said Jayaramulu, his widow Ramanjulamma, his two children i.e. the defendants 1 and 2 herein and his mother Gangamma i.e.

the plaintiff herein are each entitled to 1/4th share in the plaint schedule property and as also the Ramanjulamma died, her 1/4th share in the suit property will be succeeded by her two daughters and thus the defendants 1 and 2 are together entitled to 3/4th share in the plaint schedule property while the plaintiff is entitled to 1/4th share in the plaint schedule property.

(b) It is further submitted in the plaint that the amounts mentioned in plaint ‘A’ schedule has to be paid by District Education Officer,

Anantapuramu while the amounts mentioned in plaint ‘B’ schedule are to be paid by the Superintendent of Post offices, Hindupur and as the plaint ‘A’ and ‘B’ schedule properties are not yet paid to the legal heirs, the plaintiff is

APAN100008462017 3 O.S.No.365/2017 deemed to be in joint possession of the said amounts and further the plaint ‘C’ schedule property is in possession and enjoyment of the plaintiff and thus the plaintiff is in joint possession and enjoyment of the plaint schedule property.

(c) It is further submitted in the plaint that immediately after the death of Jayaramulu, the parents of Ramanjulamma came over to Penukonda and started residing in the house of Jayaramulu along with his widow

Ramanjulamma and his children i.e. the defendants herein and since

Ramanjulamma also committed suicide within a week of the demise of

Jayaramulu, the minor defendants remained in the custody of the father of

Ramanjulamma viz., Rekkąpogula Sunkanna and further inspite of the repeated requests of the plaintiff and her husband Madiga Anjanappa, the said Rekkapogula Sunkanna is refusing to hand over the custody of the minors to them and further he is trying to knock away the entire movable and immovable properties of the minors and hence the husband of the plaintiff viz., Madiga Anjinappa filed a petition to appoint him as guardian of the minor defendants in the Court of the Hon’ble District Judge, Anantapuramu by seeking the custody of the minor defendants and further the plaintiff approached the concerned authorities for payment of her share of the amounts mentioned in plaint ‘A’ and ‘B’ schedule, but the authorities informed the plaintiff that Rekkapogula Sunkanna made a claim for the plaint ‘A’ and ‘B’ schedule properties on behalf of the minors and as such, the authorities are insisting on an order from the Civil Court for payment of the amounts. Hence the suit.

3. On the other hand, the guardian Rekkapogula Sunkanna who is grand father of defendants 1 and 2 has filed written statement on behalf of the defendants while admitting death of M.Jayaramulu on 14.10.2015,

APAN100008462017 4 O.S.No.365/2017 subsequently death of Ramanjulamma, wife of Jayaramulu and on the death of Jayaramulu his leaving plaintiff and defendants 1 and 2 has his legal heirs, amounts mentioned in plaint ‘A’ schedule to be paid by District

Education Officer, Ananthapuramu and amounts mentioned in ‘B’ schedule to be paid by Superintendent of Posts, purchase of suit ‘C’ schedule property by Jayaramulu while he was alive and existence of such ‘C’ Schedule property but denies that plaintiffs entitlement of share along with defendants and further submitted in the written statement that plaintiff has no right to seek partition and cause of action mentioned in the plaint is incorrect and urged the court to dismiss the suit.

4. After filing the written statement by the defendants, as both parties to the suit not opted for amicable settlement left with no option, this court has framed following issues for trial :-

01.Whether the plaintiff is entitled for partition and separate possession of plaint schedule properties and to allot 1/4th share to the plaintiff in the plaint schedule properties ?

02.To what relief ?

5. In order to prove the claim of the plaintiff side, plaintiff adduced her evidence as PW.1 and got marked Ex.A1 to A12 documents on her behalf.

Plaintiff also produced the evidence of one Madiga Gopal as PW.2.

Whereas, on behalf of the defendants, their guardian / grand father /

R.Sunkanna has adduced his evidence as DW.1 and got marked Ex.B1 document. Further, the defendants also produced the evidence of one

Paradesi Narayana Swamy as DW.2 and one N.Krishnam Raju as DW.3.

APAN100008462017 5 O.S.No.365/2017

6. Both side counsels advanced their arguments. It is argued on behalf of the plaintiff that the plaintiff being a mother of deceased

Jayaramulu who died intestate leaving behind him his mother (plaintiff) and his two children (defendants 1 and 2) as legal heirs entitled to have a share in the plaint schedule properties consist of suit ‘A” schedule amount of death benefits laying in the District Education Officer, suit ‘B’ schedule amount laying in the Superintendent of Posts and suit ‘C’ schedule house site property. It is further argued for the plaintiff that even the defendants made a admission in the written statement about the plaintiff’s position of one of the legal heir of deceased Jayaramulu and even witnesses of defendant side in the cross examination admitted about the entitlement of plaintiff to have a share in the plaint schedule property and on that plaintiff being a Class I Heir entitled for the 1/4th share and whereas the defendants entitled for 3/4th share. It is further argued by the learned plaintiff counsel that though it is emerged in the cross examination of PW.1 that an amount of Rs.7,00,000/- encashed by herself and her husband from Government after death of her son Jayaramulu and also drawing of Rs.4,00,000/- amount of postal life insurance of Jayaramulu but such amounts were received by them being a

Nominees and they entitled for the same as the Jayaramulu itself nominated them to receive such amount and thus such amounts need not include in the plaint schedule properties. He further argued that though above amounts and some other house property exist in Kondapuram not included as admitted by the plaintiff in the cross examination but such evidence found in the cross examination which tilting in favour of the defendants cannot be taken into consideration since there is no pleading in the written statement of the defendants that those properties not included. He further argued that merely because the plaintiff has received some death benefits and postal amounts of deceased Jayaramulu from concerned authorities and also not included them in the plaint schedule is not a ground for the dismissal since

APAN100008462017 6 O.S.No.365/2017 such amounts were received by the plaintiff and her husband as a absolute owners on being nominated by the deceased Jayaramulu itself while he was alive and also the suit cannot be discorded on the ground that some house property not included for the reason that no amount of pleading emanated from the defendant side in respect of above properties and urged the court to decree the suit.

7. On the other hand, the learned counsel for the defendant argued that plaintiff though being a mother to the deceased Jayaramulu not entitled to claim a share in the properties left by the Jayaramulu and the plaintiff not shown any care and welfare of defendants 1 and 2 though they were minors and became parentless on account of demise of their parents and on that plaintiff even lost making claim morally seeking share. He further argued that plaintiff husband filed a guardian O.P. as per Ex.B1 for which the plaintiff was a party as a 3rd respondent and in the said guardian O.P., it is clearly claimed by the guardian of this defendants that some death benefits and postal amounts of Jayaramulu withdrawn by the plaintiff’s husband and even in the cross examination of PW.1 in this suit, such fact is emerged and thus even though such fact not specifically pleaded in the written statement, the plaintiff cannot get immunity since plaintiff very much having knowledge about such death benefits / amounts on which defendants also got right and therefore without including such amounts in the plaint schedule, the suit for partition cannot be maintained. He further argued that even house property exist at Kondapuram in which the plaintiffs are very much residing are not included in the plaint schedule and on that account alone, this suit for partition need to be dismissed as all properties not included and finally urged the court to dismiss the suit with costs.

8. Heard both sides. Perused the record.

APAN100008462017 7 O.S.No.365/2017

09. Issue No.1:-

Whether the plaintiff is entitled for partition and separate

possession of plaint schedule properties and to allot 1/4 th share to the

plaintiff in the plaint schedule properties ?

a) The plaintiff filed this suit for partition and separate possession claiming that the suit schedule ‘A’, ‘B’ and ‘C’ properties belongs to one

M.Jayaramulu @ Jayaram and the said M.Jayaramulu died intestate on 14.10.2015 leaving behind his wife Ramanjulamma, his two daughters namely M.Sahithi Priya and M.Pavani Priya and his mother Gangamma (plaintiff herein) and later within a week after his demise, his wife was also died on 21.10.2015 and so after the death of M.Jayaramulu, his legal heirs that is plaintiff and defendants 1 & 2 are entitled to inherit his death benefits and properties and also on the demise of Ramanjulamma, his two daughters who succeed to her estate are entirely entitled for 3/4th share in the estate of their parents and whereas plaintiff entitled for 1/4th share in the estate of deceased Jayaramulu. While the claim of the plaintiff stood as above, the contention of the defendants through their guardian Rekkapogula Sunkanna is that the plaintiff is not entitled for partition and separate possession of the suit schedule properties.

b) Plaintiff by filing her chief affidavit as PW.1 reiterated the same contents of above and got marked Ex.A1 to A12 documents. Ex.A1- Death certificate of late Jayaramulu, dated 29.10.2015; Ex.A2 - Death certificate of

Ramanjulamma, dated 07.11.2015; Ex.A3 - CC of Registered sale deed executed by G.Anasuya in favour of M.Jayaramulu, dated 07.03.2013; Ex.A4 - Post Office life insurance fund premium receipt book; Ex.A5 - Post Office loan repayment receipt book in the name of M.Jayaramulu; Ex.A6 - CC of death certificate of M. Jayaramulu; Ex.A7 - CC of death certificate of

APAN100008462017 8 O.S.No.365/2017

Ramanjulamma; Ex.A8 - CC of birth certificate of M.Sahithi Priya; Ex.A9 -

CC of birth certificate of M.Pavani Priya; Ex.A10 - CC of SBI payment voucher for Ac.No.34400932583 for Rs.2,00,000/-; dated 10.06.2016;

Ex.A11 - CC of payment receipt for Rs.1,00,000/- made by Madiga

Jayaramulu in Kapil Chit Fund Group; dated 10.06.2016 and Ex.A12 - CC of payment receipt for Rs.5,000/- issued by Global Gen English Medium

School and IIT campus in the name of Sahithi Priya; dated 15.04.2017 are marked through the PW.1. The defendants in their written statement never disputed about the relationship of plaintiff with the deceased Jayaramulu and also demise of Jayaramulu as well as demise of wife of Jayaramulu. Ex.A1 and A6 certificates are determining the death of Jayaramulu on 14.10.2015.

Whereas, Ex.A2 and A7 are determining the death of Ramanjulamma on 21.10.2015. So, it can be understood from the pleadings of both parties that the plaintiff is mother of deceased Jayaramulu who died on 14.10.2015 intestate and defendants 1 and 2 are children of the said deceased

Jayaramulu and also Ramanjulamma and such Ramanjulamma was died on 21.10.2015 subsequent to the death of Jayaramulu. So, there is no dispute as to the relationship of plaintiff and defendants as set out in the pleadings of both parties. It is also not in dispute as to plaint ‘A’, ‘B’ and ‘C’ Schedule properties were left by Jayaramulu. Further, there is no dispute as to deceased Jayaramulu as well as his wife Ramanjulamma died intestate.

c) On face of the pleadings of both parties, the apparent dispute is as to the entitlement of share of plaintiff in the plaint schedule properties. The plaintiff’s claims that she being a one of the legal heir of her son Jayaramulu, she entitled for share in the plaint schedule property and whereas it is the defendants version that plaintiff not entitled to claim a share in the estate of deceased Jayaramulu.

APAN100008462017 9 O.S.No.365/2017

d) Now the mooting questions that arises are (i) whether the plaintiff is entitled for partition of plaint schedule properties ? (ii) Whether the plaintiff is entitled for separate possession of plaint schedule properties ? and (iii)

Whether the plaintiff is entitled for allotment of 1/4th share in the plaint schedule properties ? Let this issues or questions be decoded hereunder.

e) The plaintiff adduced her evidence as PW.1 and reiterated that as her son Jayaramulu died intestate leaving behind the plaintiff and defendants as legal heirs, she being a mother entitled to have a share in the plaint schedule property. Whereas, PW.1 was cross examined and it is suggested to PW.1 that “plaint schedule properties are self acquired properties of late parents of minor defendants and said properties only belongs to minor defendants”. So, there is a resistance proceeded from the defendant side questioning the legal heirship of plaintiff and her share of entitlement as to the plaint schedule properties. Defendants side adduced the evidence of DWs.1 to 3 stating that plaintiff has no right to claim share in the plaint schedule properties and defendants alone entitled for the plaint schedule properties. While that is so, DW.1 was cross examined and in the cross examination, the DW.1 / Sunkanna has categorically admitted that “after demise of Jayaramulu it is the plaintiff , defendants 1 and 2 and one

Ramanjulamma wife of Jayaramulu became legal heirs and Ramanjulamma died subsequent to the Jayaramulu and on that plaintiff and defendants 1 and 2 being a legal heirs entitled for the death benefits incorporated in ‘A’, ‘B’ suit schedule properties”. Whereas, DW.2 while admitting that plaintiff is mother of Jayaramulu and said Jayaramulu died leaving behind defendant no.1 / Sahiti Priya, Defendant no.2 / Sahiti Priya who are children but denied that plaintiff is entitled for the share in the plaint schedule properties. DW.3

APAN100008462017 10 O.S.No.365/2017 in the cross examination spoken in the same manner of DW.2. So, the evidence of Plaintiff and evidence spoken by the defendant side witnesses in their cross examination suggesting that plaintiff is mother of the deceased

Jayaramulu and DW.1 almost conceded about plaintiffs entitlement and share in the suit schedule properties. Irrespective of whether defendants questions about entitlement of plaintiff being a mother of deceased

Jayaramulu as to the plaint schedule properties, it requires to see the position of law as to legal heirs of male Hindu died intestate.

f) As per Section 8 of Hindu Succession Act, 1956, the property of a male Hindu dying intestate shall firstly devolve upon his heirs being the relatives specified in Class I of the Schedule. As per the Schedule of Hindu

Succession Act the Class I heirs for male Hindu died intestate are Son, daughter; widow; mother; son of a pre-deceased son; daughter of a pre- deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son; (son of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre- deceased daughter of a pre-deceased daughter; daughter of a pre- deceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son) of a pre-deceased son daughter of a pre- deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son.

g) The combined reading of Section 8 of Hindu Succession Act and

Schedule of Hindu Succession Act, the Class I heir for male Hindu died intestate are even mother and daughters. So, the plaintiff being a mother became a Class I heir of a deceased Jayaramulu who died intestate. So also, the defendants 1 and 2 being a daughters became a Class I heirs of deceased Jayaramulu who died intestate. In these circumstances, the

APAN100008462017 11 O.S.No.365/2017 plaintiff is emerged as a Class I heir at par with defendants. Therefore, the plaintiff being a legal heir entitled for a share in the property or estate left by her son Jayaramulu who is also father of defendants 1 and 2. Therefore, though the defendants questioned and denied legal heirship and entitlement of plaintiff , the same cannot sustain under the law as stated above.

h) Now the second mooting question is “whether the plaintiff is entitled for separate possession of her share in the plaint schedule properties” ? The plaintiff / PW.1 in her cross examination has categorically admitted that “herself and her husband have drawn Rs.7,00,000/- benefits from the

Government of late Jayaramulu after his death” and “after death of her son

Jayaramulu, she has drawn Rs.4,00,000/- of his postal life insurance from post office”. So also, during the cross examination of PW.1, she has also admitted that “after death of her son Jayaramulu, herself and her husband living at house at Kondapuram which was constructed by her son by spending an amount of Rs.10,00,000/- and she has not shown the said house in the plaint schedule”. By doing such cross examination, the contention of the defendant side is that the plaintiff and her husband has withdrawn the death benefits to the tune of Rs.7,00,000/- from the

Government and also drawn an amount of Rs.4,00,000/- from postal authorities and without accounting for such amount or without showing the same including the house property in the plaint schedule, the suit filed by the plaintiff for partition of plaint schedule properties ignoring such amounts and house property cannot be maintainable. As against to the contention of defendant counsel it is vehemently argued by the plaintiff counsel that the plaintiff and her husband being a nominees withdrawn the amounts of above and such amounts need not shown in the plaint schedule as they being nominees exclusively entitled for the same and also contended that without there being any pleading in the written statement of the defendants as to

APAN100008462017 12 O.S.No.365/2017 such amounts and house property, the evidence emerged in the cross examination of PW.1 and evidence produced from defendant side cannot be considered and if considered it amounts to going beyond the scope & pleadings and urged the court to discard the contention of defendants side that some of the amounts withdrawn by the plaintiff and her husband and house properties omitted to include in the plaint schedule properties and on that partition not maintainable.

i) The above contentions of both sides raises a crucial or pivot questions as to the position of plaintiff and her husband being a nominee to the death benefits and postal life insurance of deceased Jayaramulu and also maintainability of partition suit without inclusion of such withdrawn amounts and house property. So, in a suit for partition, the above nature of questions if arises, that need to be answered since such properties left by the deceased Jayaramulu and naturally on such properties the legal heirs have a right. Before, dwelling on to the non inclusion of withdrawn amounts and house property in this suit or in the plaint schedule and its effect on the partition suit / this suit, it need to examine and answer status of plaintiff and her husband being a nominee to the death benefits and postal life insurance amount that they withdrawn. At this juncture, it is very pertinent to rely on the settled position of the law on the aspect of position of nominee or nomination enunciated by Hon’ble Apex Court and in the ruling of the

Hon’ble Supreme Court given in Shakti Yezdani vs Jayanand Jayant

Salgaonkar (2024) 4 SCC 642 it is held that “ a nomination does not

create a third type of succession or override the law of intestate

succession. The nominee only holds assets in trust for the legal

heirs”. In view of the above settled ruling of the Hon’ble Supreme Court, the plaintiff and her husband being a nominees assumes the character of trustee for the property or death benefits and postal life insurance amount of

APAN100008462017 13 O.S.No.365/2017 deceased Jayaramulu. Hence, in a sense nomination of them that does not create any exclusive right over such death benefits and postal insurance amount since they were named only to receive the such assets or amounts and shall subsequently give the same to the legal heirs. Therefore, the above position of law made it clear that the plaintiff and her husband merely because nominated by their son Jayaramulu to receive the amounts of death benefits and postal life insurance that doesn’t mean that they are exclusively entitled for it and thus the above ruling and position of law gave a hard nudge to the plaintiff contention and thus the contention of plaintiff counsel that “plaintiff and her husband being a nominees exclusively entitled for the said amount that they withdrawn” doesn’t hold water.

j) When coming to the other aspect of non-inclusion of amounts withdrawn by the plaintiff and her husband and house property in this suit is concerned, though the defendant not pleaded in the written statement about withdrawal of death benefits and Postal Insurance amount by plaintiff and her husband, non showing of such amounts and house property in the plaint schedule but during the course of cross examination of PW.1, such facts were elicited by the defendant counsel and PW.1 in the cross examination has admitted that “herself and her husband have drawn Rs.7,00,000/- benefits from the Government of late Jayaramulu after his death” and “after death of her son Jayaramulu, she has drawn Rs.4,00,000/- of his postal life insurance from post office” and further she also admitted in the cross examination that “after death of her son Jayaramulu, herself and her husband living at house at Kondapuram which was constructed by her son by spending an amount of Rs.10,00,000/- and she has not shown the said house in the plaint schedule”. Whereas, the defendant side adduced evidence of DWs.1 to 3 and in the chief examination of DWs.1 to 3 it is claimed that “after death of defendants parents, either the plaintiff or her

APAN100008462017 14 O.S.No.365/2017 husband never cared about welfare of minors but in turn they are trying to withdraw the death claims / benefits of the deceased parents of the defendants and the husband of plaintiff has filed guardian O.P.No.311/2017 against guardian of defendants and plaintiff herein and in the said guardian

O.P., at the behest of defendants the guardian has withdrawn amount of

Rs.7,00,000/- and such fact was admitted by the plaintiff in the evidence given by her in the guardian O.P. At the behest of defendants, Ex.B1 – certified copy of order in Guardian O.P.No.311/2017 was marked.

k) While the pleadings of defendant side and evidence of defendant side stood as above, it is contended by the plaintiff counsel that “without pleading in the written statement as to withdrawal of death benefits and postal insurance by the plaintiff and her husband, non showing of such amounts including house property in the plaint schedule any amount of evidence on those aspects either emerged in the cross examination of PW.

1 or found in the evidence of defendant side cannot be looked into”. No doubt true that there is no specific pleading in the written statement of defendant as to withdrawal of death benefits and postal insurance by the plaintiff and her husband, non showing of such amounts including house property in the plaint schedule but under the peculiar facts and circumstances of this suit both parties was not new to this litigation but they are at logger heads as to above properties including death benefits prior to filing of this suit itself. On keen perusal of Ex.B1 filed by the defendant side, it shows that the Hon’ble District Court has categorically observed in the said order that “both the parties to the said litigation was agitating for death benefits and other insurance amounts of deceased Jayaramulu”. Even in the counter filed in guardian O.P., it was contended that amount of deceased withdrawn by this plaintiff and her husband. Therefore, the plaintiff and her husband very much knew about the defendant side contention as to

APAN100008462017 15 O.S.No.365/2017 withdrawal of such amounts by her husband and her. Hence, it is not novel thing for them to say that such fact of withdrawal of death benefits when not recited in the written statement cannot be looked into. Further, both parties adduced the evidence in this suit touching above aspects. Even in the cross examination of DWs.1 to 3 the plaintiff counsel suggested to them that “by virtue of Ex.A10 and A11 documents, the plaintiff husband has repaid the loans of Jayaramulu” and though this suggestions denies, this shows that the plaintiff knowingly and consciously tried to cover up or else gave explanation as to the fact of their withdrawal of death benefits and postal insurance amount of deceased Jayaramulu claiming that they were spent under Ex.A10 & A11 for clearing the debts of her deceased son. Though the general rule is that “any amount of evidence without pleading cannot be looked into” but the facts and circumstances as discussed above shows that plaintiff very much knew about such withdrawn amounts and same was agitated by the defendant side prior to filing of this suit itself. Further, plaintiff without agitation or protest has lead evidence in order to counter above defence or aspects of withdrawal of amounts introduced by the defendants in the cross examination of PW.1. Hence, the above general rule will not sustain for drawing support or buttress to the above reasoning, it is very pertinent at this juncture to rely on the ruling of the Hon’ble Supreme

Court given in Bhagwati Prasad Vs Shri Chandramaul; AIR 1966 SC 735 held in para no.15 that “ the importance of the pleadings cannot, of

course, be ignored, because it is the pleading that lead to the framing

of issues and a trial in every civil case has inevitably to the confirmed

to the issues framed in the suit. The whole object of framing the

issues would be defeated if parties allowed to travel beyond them and

claim or oppose reliefs on grounds not made in the pleadings and not

covered by the issues. But cases may occur in which though a

particular plea is not specifically included in the issues, parties might

APAN100008462017 16 O.S.No.365/2017

know that in substance, the said plea is being tried and might lead

evidence about it. It is only in such a case where the Court is satisfied

that the ground on which reliance is placed by one or the other of the

parties, was in substance, at issue between them and that both of them

have had opportunity to lead evidence about it at the trial and the

formal requirement of pleadings can be relaxed ”. The above ruling while underlining the principle of any amount of evidence without pleading cannot be looked into but it observes a exception or provides a relaxation stating that if the parties to the suit very much knew about fact that not pleaded and also adduced evidence on that aspect, the general principle of any amount of evidence without pleading cannot be looked into. Here, in this case on the hand, the Ex.B1 - Order clearly indicating that prior to filing of this suit itself the plaintiff and defendants were parties to the guardian

O.P.No.311/2017 and in such guardian OP , the defendants has raised a withdrawal of amounts of death benefits and postal insurance amounts and further the plaintiff herein while facing the cross examination as a PW.1 in the suit, she has categorically admitted that “herself and her husband has withdrawn Rs.7,00,000/- death benefits from the government and also

Rs.4,00,000/- from postal insurance”. Therefore, even though the defendant not pleaded such facts in the written statement, but the evidence of above found in the cross examination of PW.1 going adverse to the plaintiff’s claim and contention. So also evidence of DWs.1 to 3 regarding such withdrawal of amounts by the plaintiff would not result into miscarriage of justice or not causes any prejudice to the plaintiff side and it cannot be termed that such evidence is surprising one to the plaintiff and beyond the pleading of written statement.

l) It is to be make note of fact on the principle of morality that plaintiff who being a none other than grand mother of minor defendants 1 and 2,

APAN100008462017 17 O.S.No.365/2017 must be expected to come to the Court with true facts even disclosing withdrawal of such death benefits and postal insurance amounts by her and her husband. But it is very disheartening to say that plaintiff not disclosed such facts. Therefore, above discussion indicating that plaintiff deliberately not shown the death benefits to the tune of Rs.7,00,000/-and postal insurance amount to the tune of Rs.4,00,000/- in this suit and such amounts appears to be appropriated by the plaintiff and her husband without giving legitimate share to minor defendants. So, under the facts and circumstances of this suit, non showing of such amounts in the plaint or else in the plaint schedule, this suit is unacceptable and this suit for partition for selective properties is unsafe to consider. It is to be borne in mind that though plaintiff and guardian of minor defendants has been at logger heads but interest of innocent minor guardian shall be looked into and thus plaintiff who suppressed the fact of withdrawal of above amounts by her and her husband is blameworthy.

m) During the cross examination, plaintiff being a PW.1 also claimed that “she has not shown some of the properties in the plaint schedule which was purchased by her son Jayaramulu”. Though this statement or evidence spoken by PW.1 in the cross examination appears to be general one but in the further course of cross examination, she specifically and categorically admitted that “after death of Jayaramulu herself and her husband living in the house constructed by Jayaramulu spending an amount of Rs.10,00,000/- and he has shown the said house located in Kondapuram in the plaint schedule”. The said evidence spoken by the PW.1 in the cross examination also shows that apart from death benefits withdrawn by her and her husband, even the house property situated in Kondapuram belongs to deceased Jayaramulu in which they were very much residing has also not shown in the plaint schedule. So, such house property also ignored to

APAN100008462017 18 O.S.No.365/2017 shown in the plaint schedule. Therefore, plaintiff filed this suit selectively only as to plaint schedule properties omitting to include house property situated in

Kondapuram and death benefits and postal insurance amount that they withdrawn. It all shows that plaintiff filed this suit for partial or piecemeal partition which is not permissible under the law and under the facts and circumstances of this suit. At this juncture, it is very pertinent to rely on the

Judgment of Hon’ble Supreme Court given in Kenchegowda (since deceased) by legal … vs Siddegowda Alias Motegowda reported in 1994 (4) SCC 294 wherein it is held in para no.18 that “ even otherwise, a suit

for partial partition in the absence of the inclusion of other joint family

properties and the impleadment of the other co-sharers was not

warranted in law ”. In the above ruling while dealing with the identical situation, the Hon’ble Supreme Court emphasized that suit for partial partition in the absence of inclusion of other joint family properties was not warranted in law. So, the plaintiff is very much got knowledge of above properties that are omitted to show in the plaint schedule and no explanation emanated from the plaintiff why such properties were not included and not made any efforts to amend the plaint to include such properties indicates mollified intention of the plaintiff. Thus, fairness on the part of plaintiff is lacking. Therefore, the above said ruling is aptly applicable to the facts on the hand wherein it is clearly shows that the plaintiff consciously and deliberately not chosen to show house property as well as death benefits and postal insurance amounts, even not made any efforts subsequently for amending the plaint to include those properties and thus this suit for partial or piecemeal partition cannot be made and if it is allowed to do so it would result into not only multiplicity of suits but great injustice would be resulted into in the point of minor defendants.

APAN100008462017 19 O.S.No.365/2017

n) In view of the above discussion, this court of the view that though plaintiff being a Class I heir, entitled to have a share in the estate of deceased Jayaramulu but this suit must fail for the reason of non-inclusion of house property as well as death benefits and postal insurance amounts that plaintiff and her husband withdrawn and enjoying.

Hence, this issue no.1 accordingly answered against the plaintiff.

10. Issue No.2 :- To what relief ?

In view of the discussion made under the issue no.1, the plaintiff is not entitled for the partition of suit schedule properties.

Hence, this issue accordingly answered against the plaintiff.

11. In the result, the suit is dismissed with costs.

Typed to my dictation by the Stenographer Gr.III, corrected and pronounced by me in the open court on this the 08th day of May, 2026.

Principal Civil Judge (Junior Division)

Penukonda

APAN100008462017 20 O.S.No.365/2017

APPENDIX OF EVIDENCE

Witnesses Examined for

For Plaintiff: -For Defendant:- P.W.1 : M.Gangamma D.W.1 : R.Sunkanna P.W.2 : Madiga Gopal D.W.2:Paradesi NarayanaSwamy D.W.3 : N.Krishnam Raju

EXHIBITS MARKED ON BEHALF OF PLAINTIFF

Ex.A1: Death certificate of late Jayaramulu, dated 29.10.2015

Ex.A2: Death certificate of Ramanjulamma, dated 07.11.2015

Ex.A3: CC of Registered sale deed executed by G.Anasuya in favour of M.Jayaramulu, dated 07.03.2013

Ex.A4: Post Office life insurance fund premium receipt book

Ex.A5: Post Office loan repayment receipt book in the name of M.Jayaramulu

Ex.A6: CC of death certificate of M. Jayaramulu

Ex.A7: CC of death certificate of Ramanjulamma

Ex.A8: CC of birth certificate of M.Sahithi Priya

Ex.A9: CC of birth certificate of M.Pavani Priya

Ex.A10 : CC of SBI payment voucher for Ac.No.34400932583 for Rs.2,00,000/-; dated 10.06.2016

Ex.A11 : CC of payment receipt for Rs.1,00,000/- made by Madiga Jayaramulu in Kapil Chit Fund Group; dated 10.06.2016

Ex.A12 : CC of payment receipt for Rs.5,000/- issued by Global Gen English Medium School and IIT campus in the name of Sahithi Priya; dated 15.04.2017

EXHIBITS MARKED ON BEHALF OF THE DEFENDANTS

Ex.B1: Certified copy of Order in G.W.O.P.No.311/2017 on the file of

Hon’ble District Judge, Ananthapuramu, dated 13.09.2019

Principal Civil Judge (Junior Division)

Penukonda

APAN100010692023 1 O.S.No.348/2023

IN THE COURT OF THE PRINCIPAL CIVIL JUDGE (JUNIOR DIVISION),

PENUKONDA

Present: Sri MASALA BUJJAPPA,

Principal Civil Judge (Junior Division), Penukonda.

Wednesday, this the 11th day of March, 2026.

ORIGINAL SUIT No. 348 of 2023

BETWEEN:

Venkatalakshmi, W/o.Late P.N.Venkatareddy, 73 years, Sinecure, R/o.D.No.2-73, Venkatareddypalli Village, Penukonda Mandal, Sri Sathya Sai District. Now presently residing at C/o. Umashankar V, #66, 4th cross, Nandini Layout, Bangalore-560096.

......... Plaintiff

-Versus-

1.P.V.Jaganath, S/o Late P.N.Venkatareddy, age 50 years, Agriculturist, D.No. 17-151, Venkatareddypalli Village, Penukonda Mandal, Sri Sathya Sai District, Andhra Pradesh – 515110.

2.P.V.Sasikala, W/o Durgam Venkataramanagari Siva Prasad, age 54 years, Hindu, House wife, D.No. 10-250, Adi Murthy Nagar, Ananthapur Town and District - 515001

3.P.V.Janardhan Reddy, S/o Late P.N.Venkatareddy, 43 years, Agriculturist and working as Line Man in APSPDCL, Line man, Beerangi Kothakota, Madanapalli, APSPDCL office, Chittor District, Andhra Pradesh-517370.

4.Boya Sudeer Lingeswara, S/o.B.Eswaraiah, 28 years, Agriculturist, D.No.25-656-1, Parthasarathi Nagar, Dharmavaram Town and Mandal, Sri Sathya Sai District, Andhra Pradesh – 515671.

5.Medapuram Hari Prasad, S/o.Medapuram Narayana, 48 years, Agriculturist, D.No.1-62, B.C. Colony, Veldurthy Village, Chennekotha palle, Medapuram, Sri Sathya Sai Dist, Andhra Pradesh 515651.

6.C.Ramachandra Raju, S/o.Kondraju, 56 years, Agriculturist, D.No.3-860, Sai Brindavan Apartments, Coconut Grove, Prashanthi Nilayam, Puttaparthy Town and Mandal, Sri Sathya Sai Dist, Andhra Pradesh-515134.

7.J.Hanudeep, S/o.J.Venkataprasad, 27 years, Business, D.No. 12-1-194, Prasanthi Nagar, Bangalore Road, Hindupur Town and Mandal, Sri Sathya Sai District, Andhra Pradesh -515201.

APAN100010692023 2 O.S.No.348/2023

8.Rishab Nag, S/o.K.Sudharshan, 28 years, Business, D.No.21-6-230-1, Housing Board, Hindupur Town and Mandal, Sri Sathya Sai District, Andhra Pradesh -515201.

......... Defendants 1 to 8

This suit is presented before me on 25.02.2026 for final hearing in the presence of Sri C.R.Nagarjuna, Advocate for plaintiff and Sri J.Prathapa Reddy, Advocate for defendants 1 to 3 and Sri H.S.N.G., Advocate for defendants 4 to 8 and the matter having stood over for consideration till this day and the Court delivered the following:-

- : : JUDGMENT : : -

1. The plaintiff filed the suit for cancelling the registered sale deed,

dated 16.06.2022 under doc.no.2177/2022 which is registered in the Sub-

Registrar Office, Penukonda and for costs of the suit.

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

(a) It is the case of the plaintiff as per the plaint that the suit schedule property originally belongs to ancestral and joint family undivided properties of the plaintiff and defendants nos.1 to 3 and one P.V.Bharathi and the plaintiff is mother of the defendant nos.1 to 3 and P.V.Bharathi and the suit schedule property is also one of the property of ancestral and joint family undivided property of the plaintiff and defendant no.1 to 3 and P.V.Bharathi and so the plaintiff and defendants no.1 to 3 have sold the suit schedule property for a valid consideration amount of Rs. 1,20,000/- on 16.06.2022 to the defendants no.4 to 8 through registered sale deed and actually the real market value of the suit schedule property is Rs.1,95,00,000-00 (Rupees

One Crore and Ninety Five Lakhs only) and the suit schedule property is situated old N.H.7 Road and also eastern boundary clearly mentioned N.H.7 road and after establishing the KIA factory in this area the rates are reached to sky rates and hence the original consideration of the property is

Rs.1,95,00,000/-.

APAN100010692023 3 O.S.No.348/2023

(b) It is further submitted in the plaint that the plaintiff is an old woman and her husband died long back and hence due to advantage of the same the defendants no.1 to 3 have misguided the plaintiff and obtained plaintiff signature in the sale deed dt. 16-06-2022 and the plaintiff don't know reading and writing except to put her signature only in Kannada & English Language and hence the plaintiff is unable to read the sale deed and the defendant nos.1 to 8 have colluded with each other and the consideration amount also distributed only among defendant nos.1 to 3 and as on the date of the registration, the defendants nos.1 to 8 have offered Rs.50,00,000/- (Fifty

Lakhs Only) to the plaintiff but after completion of registration of the sale deed the defendant nos.1 to 3 told the plaintiff that they will give the amount at house Venkatareddypalli Village because as the plaintiff is old woman and she is unable to secure the amount carefully and by believing the words of the defendants no.1 to 8 the plaintiff put her signature in the sale deed but the defendants no.1 to 3 not given any amount to the plaintiff even though nearly after completed of one year and after one month of sale deed, the defendants no.1 and 3 have necked out the plaintiff because she is insisting to her amount and so the defendants no.1 to 3 have cheated the plaintiff and now the plaintiff is taking shelter at (younger sister son's house) Bangalore and on the advice of village elders, the defendant nos.1 to 3 agreed to give the amount of Rs.50,00,000/- (Fifty Lakhs Only) to the plaintiff but the defendants nos.1 to 3 did not heed the words of the village elders and they did not look after the welfare of the plaintiff and the plaintiff came to know that she was misconceived by the defendants and the plaintiff upon enquiry about the cheating of the defendants and some of the legal experts told her to go and file for cancellation of the registered sale deed dt. 16-06-2022 and hence the plaintiff approached this Hon'ble court for cancellation of the registered sale deed as the defendants with undue influence has obtained

APAN100010692023 4 O.S.No.348/2023 the sale deed and also there is no consideration passed for the plaintiff's share in the suit schedule property and hence the sale deed is not binding upon the plaintiff as the good consideration is the one of the essential element for the valid contract and valid transaction and hence in present case there is no valid consideration to the plaintiff and the sale deed of the defendants no.4 to 8 is not valid in the eye of law and it is duty of ourselves to give respect to the senior citizens but in the present case the defendants no.1 to 3 are (son and daughter) and (the defendants no.4 to 8 purchasers) have cheated openly and even now the plaintiff condition is beyond her control and the plaintiff is unable to meet her minimum maintenance and also the plaintiff has filed maintenance case against the defendant no.1 and 3 and same is pending before this Hon'ble court and because the defendant no.1 and 3 are refused to provide minimum needs to the plaintiff.

(c) It is further submitted in the plaint that the defendant nos.1 to 8 fraudulently with an intention for wrongful gain and conspired together and cheated the plaintiff and got registered sale deed in favour of the defendants no.4 to 8 illegally in respect of the suit schedule property and the document no.2177/2022 dt. 16-06-2022 and actually the defendants no.1 to 8 offered to give the amount to the plaintiff but did not given any penny amount and thus it amounts highest form of treachery and cheating and thus all the defendants jointly and severally liable and bound to cancel the registered sale deed dt. 16-06-2022 doc.no.2177/2022 and there is every necessity to cancel the same otherwise the plaintiff will suffer great hardship and irreparable loss and left with no option the plaintiff constrained to file the suit.

Hence, the suit.

3. a) On the other hand, the defendants 1 to 3 and the defendants 4 to 8 has filed their written statements as per the docket order dated

APAN100010692023 5 O.S.No.348/2023 07.03.2024 and 01.08.2024 respectively. Defendants 1 to 3 has submitted in their written statement by denying the plaint contents and submitted that the suit is not maintainable either in law or on facts of the case and in fact the plaintiff was aware of the total consideration offered by the defendants 4 to 8 and the nature of the document she executed and the sale deed cannot be cancelled for the reason that no consideration has been received and that is not the case of the plaintiff that the sale is invalid for nonpayment of the consideration as even as per the averments of the plaint the consideration was paid by the defendants 4 to 8 and the defendants 4 to 8 cannot be punished due to the alleged misunderstandings between the plaintiff and defendants and the enormous delay in filing the suit clearly falsifies the contention of the plaintiff and the plaintiff ought to have file suit to enforce the alleged promise of the defendants 1 to 3 and there is no cause of action for the suit and the alleged cause of action is invented for the purpose of this unjust suit and urged the court to dismiss the suit with costs.

b) Whereas, the defendants 4 to 8 has submitted in their written statement that the plaintiff filed the suit with all false and frivolous allegations with the collusion of defendants nos.1 to 3 and her daughter P.V.Bharathi and in fact during the lifetime of the husband of plaintiff, defendant nos.1 to 3 and P.V.Bharathi got divided their family properties including the suit schedule property orally on 02-04-2008 and wherein the suit schedule property and other properties had exclusively allotted to the share of first defendant / P.V.Jaganath and in pursuance of oral partition, they are enjoying their respective shares separately and after due enquiry and considering their right, title and possession over their respective properties, the then revenue authorities incorporated their names in the concerned revenue records separately and also the then revenue authorities issued e- pattadar passbook cum title deed in respect of suit schedule property and

APAN100010692023 6 O.S.No.348/2023 other properties in favour of first defendant and third defendant separately for their respective shares and also issued 1-B namoonas and after partition the third defendant also sold some of the property to third parties, which was fallen to his share and thus oral partition was acted upon and also after the demise of the husband of plaintiff, his share of properties devolved on plaintiff and has been enjoying the properties of her husband separately and after due enquiry, the then revenue authorities mutated her name in the concerned revenue records and given e-pattadar passbook cum title deed .

Her name is computerized in all the concerned revenue records.

c) It is further submitted in the written statement by the defendants 4 to 8 that the defendant no.1 in order to meet his necessities offered to sell the suit schedule property in favour of defendant nos.4 to 8 and in pursuance of the same these defendants after verification of the documents, requested the defendant no.1 to get join his mother, brothers and sisters as also the vendors to avoid future complications, since there is no registered partition deed in between them and accordingly, plaintiff, defendants nos.2 and 3 also signed as vendors, though they have no any right, title or possession over the suit schedule property, through registered sale deed

dated 16.06.2022 vide document bearing No.2177/2022 and inducted

defendants 4 to 8 into possession of the suit schedule property and ever since the date of purchase, the defendant nos.4 to 8 have been in lawful possession and enjoyment of the same and further the husband of plaintiff owned houses and house sites in Penukonda town and he used to pay house taxes, water and service charges and after his demise, plaintiff has been enjoying all the aforesaid house and sites, which are valuable one and her name is also inserted in the concerned records by the Nagar Panchayat,

Penukonda and electricity department.

APAN100010692023 7 O.S.No.348/2023

d) It is further submitted in the written statement by the defendants 4 to 8 that the defendant no.1 demanded to reconvey the suit schedule property in his favour for which defendant nos.4 to 8 refused to do so and on account of the same, misunderstandings arose in between defendant no.1 and defendant nos.4 to 8 and so the defendant no.1 colluded with defendants no.2, 3 and their sister P.V.Bharathi and got filed the present suit with all false and frivolous allegations by concealing the facts, in order to cause wrongful loss to these defendant nos.4 to 8 for which plaintiff and her children have no right to do so and these defendants purchased the suit schedule property for valuable consideration and got registered the same as per market value as valued by the sub-registrar authority and there is no cause of action for the suit and the alleged cause of action is invented only for the purpose of the present suit and the suit framed is not correct without declaration of title and other relief’s by paying proper court fee and on that ground also the suit may kindly dismiss in limine and the plaintiff has no locus standi to file the present suit and urged the court to dismiss the suit with exemplary costs.

04. After filing the written statement by the defendants, as both parties to the suit not opted for amicable settlement left with no option, this court has framed following issues for trial :-

1. Whether the defendants 1 to 3 and P.V.Bharathi divided their family

properties including the plaint schedule property during the lifetime

of husband of plaintiff ?

2. Whether the defendants 1 to 3 have misguided the plaintiff and

obtained her signature on registered sale deed dated 16.06.2022 ?

3. Whether the plaintiff is entitled for the relief of cancellation of the

registered sale deed dated 16.06.2022 vide document no.2177/2022

APAN100010692023 8 O.S.No.348/2023 of Sub-Registrar Office, Penukonda as prayed for ?

4. To what relief ?

05.In order to prove the claim of the plaintiff, the plaintiff herself examined as PW.1 and got marked Ex.A.1 to A.15 documents on her behalf.

Further, the plaintiff also produced the evidence of P.V.Bharathi as PW.2;

M.Aruna as PW.3, R.Gangadhar as PW.5 and whereas the chief affidavit of

Govindaraju which is filed as PW.4 but was eschewed as per the docket order dated 04.04.2025 as per the request of plaintiff counsel. On the other hand, the defendant no.1 was examined as DW.1 and the defendant no.6 was examined as DW.2 and got marked Ex.B1 and B2 on their behalf.

06. Heard both sides. Written arguments filed by the plaintiff, defendants 1 to 3 and defendants 4 to 8. Citation memo filed by the plaintiff, defendants 1 to 3. Written arguments and citation memo forms part of record and hence they are not reproduced hereunder. Perused the record.

07. Issue No.1 :-

Whether the defendants 1 to 3 and P.V.Bharathi divided their

family properties including the plaint schedule property during the

lifetime of husband of plaintiff ?

(a) Here in this case on hand the claim of plaintiff is that the plaintiff and defendant nos.1 to 3 has sold the suit schedule property for a valid consideration amount of Rs. 1,20,000/- on 16.06.2022 to the defendants no.4 to 8 through registered sale deed vide doc.no.2177/2022 and claimed that suit schedule property was ancestral and joint family undivided property of the plaintiff, defendant nos.1 to 3 and one P.V.Bharathi and the real market value is Rs.1,95,00,000/- and further claimed that the defendants 1

APAN100010692023 9 O.S.No.348/2023 to 3 has misguided the plaintiff and obtained her signature in the said registered sale deed and they did not given any consideration amount which is offered to her and later on they necked out the plaintiff and as the plaintiff not received the consideration amount and left with no option the plaintiff constrained to file the suit for cancellation of the registered sale deed dated 16.06.2022 vide doc.no.2177/2022. So, the prime contention of plaintiff is that suit schedule property was the ancestral and joint family property of plaintiff, defendants 1 to 3 and one Bharathi.

(b) In contra, the defendants 1 to 3 who are the sons and daughter of the plaintiff has contended that the plaintiff was aware of the total consideration offered by the defendants 4 to 8 and further contended that as per the averments of the plaint, it goes to show that the consideration was paid by the defendants 4 to 8 and there was enormous delay in filing the suit which clearly falsifies the contention of the plaintiff and urged the court to dismiss the suit with costs. Whereas, the defendants 4 to 8 who are the purchasers of the suit schedule property contended that during the life time of the husband of the plaintiff, defendant nos.1 to 3 and P.V.Bharathi got divided their family properties including the suit schedule properties orally on 02.04.2008 and the suit schedule property among other properties are exclusively allotted to the share of the defendant no.1 and also the revenue authorities has issued e-pattadar pass book-cum-title deed in respect of suit schedule property to the defendant no.1 and the defendant no.1 in order to meet his necessities offered to sell the suit schedule property in favour of defendant nos.4 to 8 and with regard to the same, these defendants after verification of the documents, requested the defendant no.1 to get join his mother (plaintiff herein), brothers and sisters as also the vendors to avoid future complications as there is no registered partition deed between them and accordingly plaintiff, defendants nos.2 and 3 also signed as vendors,

APAN100010692023 10

O.S.No.348/2023

though they have no right, title or possession over the suit schedule property and later on some misunderstandings arose between the defendant no.1 and defendants 4 to 8 and on that the defendant no.1 in collusion with the defendants 2, 3 and their sister P.V.Bharathi has filed this present suit with the plaintiff for wrongful gain and urged the court to dismiss the suit. So, the contention from the defendants more particularly the defendants 4 to 8 is that plaintiff is not exclusive owner of the plaint schedule property as there was a partition between the plaintiff , defendants 1 to 3 and daughters of plaintiff and plaint schedule property and other properties was fallen to the share of defendant no.1 and when defendant no.1 offered to sell the plaint schedule property to the defendants 4 to 8 but as a precautionary measure they sought to made the plaintiff and daughters of plaintiff as a vendors and on that plaintiff is a nominal person to the sale deed and she has not having any right or share in the plaint schedule property.

c) While the rival contentions as stood above, the plaintiff by producing her evidence as PW.1 reiterated the plaint contents and got marked Ex.A1 – certified copy of registered sale deed under doc.no.2177/2022 in Boya Sudheer Lingeswar’s name and other; Ex.A2 – death certificate of P.N.Venkata Reddy (husband of plaintiff); Ex.A3 - certified copy of petition in DVC.No.2/2024 on the file of JMFC, Hindupur;

Ex.A4 - certified copy of petition in MC.No.4/2023 on the file of JMFC,

Penukonda; Ex.A5 - certified copy of charge sheet in Cr.No.29/2024 of KIA

PS; Ex.A6 - certified copy of rough sketch filed in Cr.No.29/2024 of KIA PS;

Ex.A7 - certified copy of Section 161 CrPC statement of plaintiff in

Cr.No.29/2024 of KIA PS; Ex.A8 - certified copy of Section 161 CrPC statement of P.V.Bharathi in Cr.No.29/2024 of KIA PS; Ex.A9 - certified copy of Section 161 CrPC statement of S.V.Ramya Sri in Cr.No.29/2024 of KIA

APAN100010692023 11

O.S.No.348/2023

PS; Ex.A10 - certified copy of Section 161 CrPC statement of V.Uma

Shankar in Cr.No.29/2024 of KIA PS; Ex.A11 - certified copy of Section 161

CrPC statement of S.Showkath Ali in Cr.No.29/2024 of KIA PS; Ex.A12 - certified copy of Section 161 CrPC statement of Rasmi Ranjan in

Cr.No.29/2024 of KIA PS; Ex.A13 - certified copy of Section 161 CrPC statement of Shanbhu in Cr.No.29/2024 of KIA PS; Ex.A14 – Certified copy of FIR in Cr.No.29/2024 of KIA PS and Ex.A15 – CD along with 7 photographs. Whereas defendants produced the evidence of DWs.1 and 2 and got marked Ex.B1 - Certified copy of 1-B namuna in the name of

P.V.Jaganath (D1) dated 28.12.2020 and Ex.B2 - Certified copy of 1-B namuna in the name of Venkatalakshmi (plaintiff) dated 24.06.2024.

d) Upon perusal of Ex.A1 – certified copy of registered sale deed under doc.no.2177/2022 dated 16.06.2022 wherein it shows that the defendant nos. 1 to 3 along with the plaintiff has executed the said registered sale deed in favour of defendants 4 to 8 and received the consideration amount of Rs.1,20,000/-. The rest of documents of Ex.A2 to

A15 are relates to litigation between plaintiff and defendants 1 to 3 regarding maintenance, domestic violence and criminal cases and thus Ex.A2 to A15 no way become relevancy to the suit facts on the hand. PW.1 in her cross examination by the counsel for D1 to D3 wherein she has stated that “in the plaint she recited that herself (plaintiff) and defendants 1 to 3 sold plaint schedule property to defendants 4 to 8 under registered sale deed for consideration of Rs.1,20,000/- and they have received said consideration amount”. On the face of Ex.A1 itself both the plaintiff and defendants 1 to 8 somehow accepted the plaintiff’s right in the property. In the Ex.A1 no where it is stated that it is exclusive property of defendant no.1 only and whereas plaintiff and D2, D3 are mere signatories to avoid complications in the future

APAN100010692023 12

O.S.No.348/2023

for the benefit of defendants 4 to 8. In the absence of such recital in Ex.A1 sale deed it can be assumed that plaintiff got either right or share in the plaint schedule property.

e) The defendants 1 to 3 who are sons of plaintiff never pleaded in their written statement that there was a division of the property and plaint schedule property and other properties fallen to the share of defendant no.1

In the absence of any such claim from the defendants 1 to 3, the sole contention of defendants 4 to 8 that there was a division of property among plaintiff, defendants 1 to 3 and one P.V.Bharathi is of no use. Further, defendants side witnesses (DWs.1 and 2) has stated that there is no document to show that there was a partition among plaintiff, defendants 1 to 3 and PV Bharathi. It is suggested to the DWs.1 and 2 there was no oral partition among plaintiff and defendants 1 to 3 and PV Bharathi. In the absence of any solid proof from the defendant side to show that there was a partition, then it is not possible for this court to believe that there was a partition among plaintiffs and defendants 1 to 3 and female children of plaintiff and in such partition plaint schedule property was fallen to the share of defendant no.1.

Hence, this issue accordingly answered in favour of the plaintiff.

8. Issue No.2:-

Whether the defendants 1 to 3 have misguided the plaintiff and

obtained her signature on registered sale deed dated 16.06.2022 ?

(a) It is the claim of the plaintiff that defendants 1 to 3 has coxed her to execute registered sale deed in favour of defendants 4 to 8 in respect of

APAN100010692023 13

O.S.No.348/2023

plaint schedule property for Rs.1,95,00,000/- though in the sale deed consideration amount mentioned as Rs.1,20,000/- nominally and subsequently defendants 1 to 3 having offered to give Rs.50,00,000/- amount towards plaintiff share did not gave the same subsequently and in turn after some time plaintiff was driven out of the house and on that plaintiff conclude that she was misguided by the defendants 1 to 3 in collusion with defendants 4 to 8.

(b) In order to establish above facts, plaintiff produced the evidence of

PWs.1 to 5 and reiterated the said facts in their chief examination. PW.1 was cross examined wherein PW.1 has categorically admitted that “she has mentioned in the plaint that herself and dfefendants 1 to 3 sold the suit schedule property to defendants 4 to 8 under registered sale deed, defendants 1 to 3 has told to her that as the sale consideration amount is huge amount they will bring it to the homeand give it to her at her village and defendants 4 to 8 gave entire sale consideration to the defendants 1 to 3.

So, as per the above evidence spoken by PW.1 in the cross examination , it is very clear that there was a passig of consideration from defendants 4 to 8 tothe defendants 1 to 3 towards Ex.A1 sale transaction and plaitniff was very much preset at the time of giving the sale consideration amoutn to the D1 to

D3. Thus, such sale consideration amount has given to D1 to D3 only in the presence of plaintiff. So, sale under Ex.A1 is complete transaction.

(c) Let us decide here itself whether such consideration amount is a genuine one or sufficient one. It is the claim of the plaintiff that sale consideration amount is Rs.1,95,00,000/- but that was ignored to mention in the sale deed and mentioned an amount of Rs.1,20,000/- nominally in order to evading to pay more stamp duty and registration charges to the

APAN100010692023 14

O.S.No.348/2023

Government. No where from the plaintiff side an evidence more particularly documentary evidence emanated to show that market value of the suit schedule property is Rs.1,95,00,000/- . PW.2 / P V Bharathi admitted that they have not filed any document to show that plaint schedule property carries worth value of Rs.2,50,00,000/-. Even while filing the suit the plaintiff averred in the plaint that the suit is valued for Rs.1,20,000/- and shown market value of Rs.1,20,000/-. So, the plaintiff herself when shown the plaint schedule property value Rs.1,20,000/- in her plaint at valuation column, then the plaintiff contention that suit schedule property carries more value and an amount of Rs.1,20,000/- mentioned in Ex.A1 sale deed is a meager one cannot stand. So, there is a dichotomy in the contention of plaintiff in respect of the market value of the property that put forth by her. As per

Ex.A1 there is a clear recital that suit schedule property was sold for

Rs.1,20,000/- and as per the plaintiff such consideration amount was given to D1 to D3 in her presence. So, consideration amount was very much passed from defendants 4 to 8 to defendants 1 to 3 and plaintiff. So, question of playing fraud or employing coercion by defendants 4 to 8 in collusion with defendants 1 to 3 with the plaintiff doesn’t arise. It is altogether different issue as to whether defendants 1 to 3 really shared the said amount to the plaintiff or not.

(d) Further, there is a anomaly in the case of the plaintiff as plaintiff on one hand contended that she was influenced by defendants 1 to 3 in executing sale deed in favour of D4 to D8 and in the other hand she also claimed that D1 to D3 has coerced her to execute sale deed in favour of D1 to D4. Both the factors of undue influence and coercion cannot fit in one barrel of plaintiff contention. Further, plaintiff though produced evidence of

PWs.1 to 5 but fails to establish either factor of undue influence or factors of

APAN100010692023 15

O.S.No.348/2023

coercion. PW.3 / M.Aruna has stated in the cross examination that she do not know who purchased the suit schedule property and for what amount purchased and claimed that she has given a narration by the plaintiff regarding sale transaction. So, the testimony of PW.3 not helpful to the case of the plaintiff to establish either undue influence or coercion or also lack of consideration or sufficient consideration. PW.4 evidence was eschewed.

Whereas, PW.5 has admitted in the cross examination that he do not know who purchased the suit schedule property and who sold the suit schedule property and she never associated with sale transactions between the plaintiffs and defendants and categorically admitted that he was tutored by the plaintiff regarding plaint contents and on that he came to give the evidence. This evidence is enough to show that PW.5 is a planted witness and thus such evidence also not helpful to the plaintiff to prove her case against the defendants. The learned counsel for the plaintiff side contended that fraud and coercion was employed by D1 to D3 in collusion with D4 to D8 on the plaintiff and obtained signature of plaintiff in the sale deed executed in favour of D4 to D8 and on that such sale deed is invalid one and he relied upon the Judgment of Hon’ble Supreme Court delivered in between

Ningawwa vs Byrappa and three others reported in AIR 1968 SC 956 wherein the Hon’ble Supreme Court while dealing with dispute as to execution of gift by the wife in favour of her husband held that “Section 16(3) of Indian Contract Act says that where a person who is in person to dominate the will of other enter into a transaction with him which appears, on the face of it or on the evidence adduced, to be unconseionable, the burden of proving that such transaction was not induced by influence, shall lie upon the person in a position to dominate the will of another”. The facts on the hand in this suit shows that D4 to D8 obtained sale deed from D1 to

D3 and plaintiff. So, emanating any kind of influence from the D4 to D8 onto

APAN100010692023 16

O.S.No.348/2023

the plaintiff doesn’t arise. Therefore, the reliance on ruling of Hon’ble

Supreme Court delivered in between Ningawwa vs Byrappa and three others reported in AIR 1968 SC 596 placed by the plaintiff side is not supporting the version of the plaintiff and facts of such case altogether different as in that case, the conveyance of gift deed was in question for which consideration of amount is immaterial but question of dominating the confidence or will of others who executed the gift deed alone became a basis and whereas the facts on the hand in this case relates to the sale deed for which consideration is necessary and such consideration is very much passed. Therefore, the testimony of PWs.1 and 2 is insufficient and such testimony not proving the fact of either coercion, undue influence and also lack of sufficient consideration.

(e) On the other hand, the defendant side evidence emerging that in respect of plaint schedule property, plaintiff and defendants 1 to 3 having received sale consideration, executed the sale deed in favour of D4 to D8.

The evidence of DWs.1 and 2 not significantly defused by the plaintiff. So, it is very clear from the evidence of both sides that there was a sale of suit schedule property made by the plaintiff and D1 to D3 to the defendants 4 to 8 for consideration amount of Rs.1,20,000/- and such consideration amount was passed to defendants 1 to 3 in the presence of plaintiff. If that is the case, seeking cancellation of sale deed on the ground that plaintiff not received the sale consideration is highly misconceived and sale deed of

Ex.A1 cannot be cancelled for the reason that sale consideration amount not shared by the defendants 1 to 3 to the plaintiff. So, at best plaintiff has got an option to seek relief against defendants 1 to 3 by filing suit for recovery of amount but she cannot altogether entitled to seek cancellation of sale deed.

Sale deed of Ex.A1 transaction is completed transaction once the

APAN100010692023 17

O.S.No.348/2023

consideration amount said to be passed to the executant side. In such case, the sale deed cannot be cancelled but the plaintiff has an option to recover the amount of her share from the defendants 1 to 3 by way of separate suit.

Even the reliance placed by the learned defence counsel is aptly applicable to the contention of defendants 4 to 8 version. In the ruling given by the

Hon’ble High Court of Andhra Pradesh at Amaravathi delivered by

Sangisapu Seetarama Rao and Others vs B.V.S. Murthy in First Appeal

No.332/2005 dated 25.03.2025 the Hon’ble High Court in a similar situation while referring to the Section 54 of Transfer of Property Act observing that sale is a transfer of ownership in exchange for a price paid or promised or part paid or part promise and also held that “the registered sale deed cannot be cancelled unilaterally and that remedy for unpaid consideration is to sue for recovery, not to cancel the sale deed”. So, the plaintiff herein is entitled to seek her share of amount in the sale consideration that received by D1 to D3 and she cannot unilaterally seek for cancellation of the sale deed of Ex.A1. Thus, defendants 4 to 8 cannot be put to the hardship for the family tussle between the plaintiff and defendants 1 to 3. Moreover, Ex.A3 to Ex.A9 documents suggesting that there exist strained relationship among family member of plaintiff and D1 to D3 and

Bharathi. So, it all suggesting that subsequent to Ex.A1 transaction there occurs rift among family of plaintiff and thus this case appears to be filed only to settle the score against D1 to D3. Therefore, D4 to D8 who are innocent cannot be put to hardship.

Hence, this issue accordingly answered against the plaintiff.

APAN100010692023 18

O.S.No.348/2023

9. ISSUE NO.3 :-

Whether the plaintiff is entitled for the relief of cancellation of the

registered sale deed dated 16.06.2022 vide document no.2177/2022 of

Sub-Registrar Office, Penukonda as prayed for ?

In view of the discussion made under the issue no. 2 of above, the plaintiff is certainly not entitled for the relief of cancellation of the registered sale deed dated 16.06.2022 vide document no.2177/2022 of Sub-Registrar

Office, Penukonda .

Hence, this issue accordingly answered against the plaintiff.

10. ISSUE NO.4 :- To what relief ?

In view of discussion made under the issue nos.2 and 3 of above, the plaintiff not entitled for the cancellation of sale deed and accordingly this suit deserves for dismissal with costs.

Hence, this issue accordingly answered against the plaintiff.

11. In the result, the suit is dismissed with costs.

Typed to my dictation by the Stenographer Gr.III, corrected and

pronounced by me in open Court on this the 11th day of March, 2026.

Principal Civil Judge (Junior Division)

Penukonda

APAN100010692023 19

O.S.No.348/2023

Appendix of Evidence

Witnesses Examined for

For Plaintiff: - For Defendant:- P.W.1: Venkatalakshmi D.W.1: P.V.Jagannath P.W.2: P.V.Bharathi D.W.2:C.Ramachandraraju P.W.3: M.Aruna P.W.4: Govindaraju (eschewed) P.W.5: R.Gangadhar

Exhibits marked on behalf of

Plaintiff:-

Ex.A1certified copy of registered sale deed under doc.no.2177/2022 in Boya Sudheer Lingeswar’s name and other Ex.A2death certificate of P.N.Venkata Reddy (husband of plaintiff)

Ex.A3certified copy of petition in DVC.No.2/2024 on the file of JMFC, Hindupur

Ex.A4certified copy of petition in MC.No.4/2023 on the file of JMFC, Penukonda

Ex.A5certified copy of charge sheet in Cr.No.29/2024 of KIA PS

Ex.A6certified copy of rough sketch filed in Cr.No.29/2024 of KIA PS

Ex.A7certified copy of Section 161 CrPC statement of plaintiff in Cr.No.29/2024 of KIA PS

Ex.A8certified copy of Section 161 CrPC statement of P.V.Bharathi in Cr.No.29/2024 of

KIA PS

Ex.A9certified copy of Section 161 CrPC statement of S.V.Ramya Sri in Cr.No.29/2024 of KIA PS Ex.A10certified copy of Section 161 CrPC statement of V.Uma Shankar in Cr.No.29/2024 of KIA PS Ex.A11certified copy of Section 161 CrPC statement of S.Showkath Ali in Cr.No.29/2024 of KIA PS Ex.A12certified copy of Section 161 CrPC statement of Rasmi Ranjan in Cr.No.29/2024 of

KIA PS

Ex.A13certified copy of Section 161 CrPC statement of Shanbhu in Cr.No.29/2024 of KIA PS; Ex.A14certified copy of FIR in Cr.No.29/2024 of KIA PS

APAN100010692023 20

O.S.No.348/2023

Ex.A15CD along with 7 photographs

Defendant :-

Ex.B1Certified copy of 1-B namuna in the name of P.V.Jaganath (D1) dated 28.12.2020

Ex.B2Certified copy of 1-B namuna in the name of Venkatalakshmi (plaintiff)

dated 24.06.2024

Principal Civil Judge (Junior Division)

Penukonda