Sri M.V.S. Prabhakar

IN THE COURT OF THE ADDITIONAL SENIOR CIVIL JUDGE,

CHITTOOR.

Present:-Sri M.V.S.Prabhakar

Additional Senior Civil Judge,

Chittoor.

Tuesday the 22nd day of December, 2020

O.S.No. 140 of 2016

Between:

M.Nagarjuna … . Plaintif

And

Venkatarathnam …Defendant

This suit is coming on 23-11-2020 before me for final hearing in the presence of Smt A.S.Saraswathy, advocate for the plaintif and Sri G.B.Prasanna, Advocate for the defendant upon hearing the arguments on both sides through blue jeans app and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

This suit has been filed by plaintif against defendant for recovery of Rs.3,43,363/- being principal and interest due on a promissory note executed by defendant in favour of plaintif for

Rs.2,50,000/- on 20-12-2014.

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2. The brief facts of the plaint are that the plaintif and defendant are close friends having business dealings. On 20-12-2014 the defendant for his family and business necessities borrowed

Rs.2,50,000/- from plaintif and executed a promissory note on the same day agreeing to repay the said sum with interest at the rate of 24% per annum, either to the plaintif or to his order on demand. In spite of demands made by the plaintif, the defendant issued a cheque bearing No.406712 drawn on Andhra Bank, Bery street branch, Tirupathi for Rs.3,37,000/- on 30-05-2016 towards discharge of the entire promissory note debt. The said cheque was presented by plaintif on 2-6-2016 in State Bank of India, Chittoor and it was dishonoured on 3-6-2016 on the ground of insufficient funds and payment stopped by the drawer. The defendant issued the cheque with dishonest intention. On 15-6-2016 the plaintif got issued notice to the defendant to pay the amount due under the cheque and it was received by the defendant on 22-6-2016. The defendant got issued reply on 29-6-2016 with false allegation.

Hence the plaintif is constrained to file this suit.

3. On the other hand the defendant filed written statement denying the averrments mentioned in the plaint and submitted that the plaintif and defendant have decided to enter in a partnership firm on 18-4-2015 under the name and style as M/s -3-

Narayana enterprises for conducting business in electrical home suppliers, electronic refrigerators, air conditioners etc. Thereafter the plaintif with fraudulent intention got registered the proprietorship with PIN.No.3717639587 dt.8-1-2015 even prior to partnership deed. After getting the stock on sale, the plaintif and defendant got disputes and the plaintif and defendant got signed on blank non judicial stamp paper worth Rs.100/- vide document

No.6820 dt.23-5-2015 BT053188 which was purchased from

M.Chandrasekhar chetty licensed vendor Tirupati and got issued the same to TCL company authority. On the same day another non judicial stamp paper worth Rs.100/- vide document No.6819 dt.23- 5-2015 BT053187 was purchased from M.Chandrasekhar chetty and it was in possession of plaintif fraudulently. On the same day the plaintif and company authorities by cheating the defendant fraudulently by force and coercion taken a cheque bearing

No.405712 of Andhra Bank and the company has taken another cheque bearing No.406713. The defendant gave a letter to Andhra

Bank authority on 24-5-2016 to stop payment since cheques were taken by coercion. Thereafter the plaintif evaded to return the cheque and filed the present suit with false claim. Hence the defendant prays to dismiss the suit.

4. On the basis of above pleadings, the following issues are settled for trial.

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

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2. Whether suit promissory note is not supported by consideration?

3. Whether plaintif is entitled to recover the suit claim?

4. To what relief?

5. On behalf of plaintif PWs.1 and 2 were examined and Ex.A1 to

A3 were marked. On behalf of defendant DWs.1 and 2 are examined, but no documents were marked.

6. The learned counsel for plaintif filed written arguments stating that the evidence of Pws.1 and 2 is crystal clear in respect of consideration. She further submitted that the promissory note is not a compulsory attestable document and the evidence of PW.1 coupled with evidence of PW.2 proves the execution of promissory note by the defendant. She further submitted that the defendant took inconsistent pleas in the written statement and he never mentioned in the written statement that for security purpose, he borrowed the amount and handed over the promissory note. She also submitted that by applying section 73 of Indian Evidence Act, the court can easily come to conclusion that the defendant has only signed in the promissory note. She further argued that the evidence of DWs.1 and 2 need not render any help to the case of defendant and the defendant did not file any records in respect of partnership firm as pleaded by him. She further submitted that as -5- the defendant did not take any steps to send the promissory note to expert even though he stated that it is fabricated one, an adverse inference under section 114 of Indian Evidence Act shall be drawn against the defendant. She further argued that as per the evidence of PWs.1 and 2 execution of promissory note was proved. Hence as per section 118 of Indian Evidence Act it can safely be presumed that promissory note was executed after receipt of consideration only. She further submitted that when the matter is posted to 24-7-2017 for cross examination by the defendant, he did not do the same and at a later point of time he gave a report to the East police station, Tirupati. She further argued that the defendant admitted in the cross examination that he filed SC and ST case against plaintif and subsequently he has compromised the matter. It clearly shows that only for the sake of this case, the defendant filed criminal case against the plaintif.

Hence the counsel for plaintif prays to decree the suit. She filed several citations which I will discuss at an appropriate point of time.

07. On the other hand the counsel for defendant argued that the evidence of Pws1 and 2 did not stand to legal scrutiny and their evidence has been impeached due to cross examination. He further argued that the Pw2 who is one of the attestors has not -6- even identified the defendant who was said to be present at the time of transaction. He further argued that Pw2 has stated that only Rs. 1,00,000/- was given to defendant in his presence and as such the suit promissory note is forged by plaintif with the help of attestors and no consideration was passed under it. He further argued that neither plaintif nor defendant are residents of

Chittoor and as such the execution of promissory note at Chittoor is an astonishing factor and the evidence of Dws1 and 2 clearly proves that suit promissory note is fabricated and prays to dismiss the suit with costs.

08. Issues No.1: To prove this issue the burden is on the plaintif. To discharge the initial burden, the suit promissory note is true valid and binding on defendant, the plaintif has to prove the said aspect. At the first instance the plaintif himself was examined as Pw1 and reiterated the contents mentioned in the plaint. During his evidence Ex.A1 to A3 were marked. Ex.A1 is promissory note dt. 20.12.2014 executed by defendant in favour of plaintif. Ex.A2 is office copy of legal notice with postal receipt got issued by the plaintif to the defendant dt. 15.6.2016. Ex.A3 is reply notice got issued by the defendant to the counsel for plaintif

dt. 29.6.2016. Pw1 was cross examined at a length of 2 pages

wherein he admitted that Ex.A1 was executed at Chittoor at the -7- house of Pw2 and Pw2 also singed Ex.A1. He also admitted that

M/s Sri Narayana Enter Prises was run at Tirupati and Pw2 and

Tulasi Prasad Reddy are his friends. He also admitted that the entire promissory note is written with black pen and attestors have put their signatures with blue pen. A cursory look of Ex.A1 discloses the said fact. Except this virtually noting is elicited in the cross examination of this witness to discredit his testimony in the chief examination. Of course the witness has denied suggestions that himself and defendant started business at

Tirupati pertaining to selling of Televisions, Fridge etc., and products of TCL Company under the name and style as M/s Sri

Narayana Enterprises and the defendant at the time of commencement of business for security purpose executed promissory note at Tirupati and he fabricated the suit promissory note and there is diference in the hand writing pertaining to the word “Chittoor” in Telugu on the top of promissory note and this court has no territorial jurisdiction to entertain the suit and he does not have bank account at State Bank of India, Chittoor. Of course the suggestions are negative in nature and unless there is a positive proof they have got no evidentiary value. There is no reason to disbelieve the version of Pw1 and his evidence is crystal clear in respect of execution of promissory note by defendant, since nothing is elicited in his cross examination to discredit or dislodge his chief examination.

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09. To support his version the plaintif has examined one of the attestors as Pw2 who testified that on 20.12.2014 the defendant has executed the promissory note in favour of plaintif after borrowing a sum of Rs. 2,50,000/- for his family and business necessities and agreed to repay the said amount with interest @ 24% p.a. He further added that the promissory note was scribed in his house at Chittoor. In the cross examination of Pw2 he admitted that he studied M.B.A. He further stated that at the time of execution of promissory note plaintif, defendant himself and

Tulasi were present and one Venkata Ramana of Tirupati scribed the promissory note. He further stated that himself and Tulasi have signed as attestors which fact is fortified on perusal of Ex.A1 promissory note. Pw2 further admitted that first Venkata Ramana and later plaintif signed. He again stated that plaintif did not sign. First Pw2 stated that no consideration was passed under

Ex.A1 and again he stated that Rs. 1,00,000/- was given to defendant by plaintif and plaintif informed him that in total he paid Rs. 2,50,000/- to the plaintif. Pw2 further admitted that plaintif is residing at Tirupati and he has no residential proof at

Chittoor which fact was spoken out by Pw1 also stating that he is resident of Tirupati and suit transaction took place at the house of

Pw2 who is resident of Chittoor. Pw2 identified one Purushotham

Naidu as defendant in the court. At this juncture the learned -9- counsel for defendant has seriously and vehemently argued that if at all Pw2 was present at the time of suit transaction he would have identified the defendant exactly but Pw2 stated that only

Rs. 1,00,000/- was given in his presence and plaintif told him that he has given Rs. 2,50,000/- to defendant and as such as the evidence of Pw2 creates any amount of doubt in respect of his presence at the time of transaction and as such the suit promissory note is fabricated one and prays to dismiss the suit.

But it is nothing but natural that an astute layer may snatch answers from a person like Pw2 under the stress of cross examination. Further the suit transaction is of the year, 2014 whereas witness deposed before court in March, 2020 i.e. after lapse of 6 years. It is not the case of either plaintif or defendant that Pw2 is close friend of defendant so that he cannot forget the defendant even after one decade. Therefore the arguments of learned counsel for defendant on this aspect cannot be accepted at any stretch more particularly when the promissory note was scribed by defendant himself. Even though defendant argued that promissory note is fabricated there was no efort on the part of defendant to send the same to expert to prove that signatures on the promissory note do not belong to him. Therefore from the evidence of Pw1 coupled with the evidence of Pw2 proves the contents in Ex.A1 and that defendant executed the promissory -10- note. Once the execution is proved as per presumption U/s 118 of NI Act it is nothing but for consideration. Hence it can safely be presumed that the defendant soon after receipt of consideration only executed the promissory note and as such it is binding of the defendant. Accordingly the plaintif has discharged his initial burden.

10. To disprove the case of plaintif the defendant himself was examined as Dw1 and reiterated the contents mentioned in the written statement and further stated that he along with plaintif on 18-4-2015 started a partnership firm at Tirupati under name and style as M/s Sri Narayana Enterprises for sale of Electric Home

Appliances, Electronic representatives, Air Conditioners and spare parts from TCL electronic company stock at Vijayawada. Both himself and plaintif got stock. Thereafter the plaintif fraudulently registered proprietorship for TIN No. 3715639587, dt. 8.1.2015 prior to partnership deed. He further stated that after getting stock he got disputes with the plaintif and he along with plaintif signed on blank nonjudicial stamp paper worth Rs. 100/- vide document No.6820 dt. 23.5.2015 BT 005313 which was purchased from N.Chandrasekhar Cheety Tirupati and issued to TCL company authorities. He also signed on nonjudicial stamp paper worth Rs.

100/- vide document No. 6811, dt. 23.5.2015 BT 053187 which was purchased from M. Chandrasekhar Reddy, Tirupati and -11- it is in possession of plaintif. The defendant further stated that on the same day the plaintif and company authorities by cheating him fraudulently and by force and coercion, took a cheque

Bearing No. 405712 of Andhra Bank and company authorities took another cheque 406713 and he gave a letter to Andhra

Bank authorities for stop payment. On the basis of above cheque which was forcibly taken from him by the plaintif he filed the suit and he (defendant) never borrowed any amount from plaintif and never executed any promissory note in favour of plaintif much less on 20.12.2014. He has never seen the attestors. In the cross examination of Dw1 he admitted that there is no partnership deed and he did not file any material that he is partner of M/s Sri

Narayana Enterprises. If at all the version of defendant is true that he is partner of a firm there would be some piece of paper at least. But in the absence of any such proof of document, the evidence of Dw1 cannot be accepted since the oral evidence cannot transcend beyond documentary evidence. Dw1 further admitted in the cross examination that he was threatened to give those papers i.e. blank cheque and blank nonjudicial stamp paper.

If at all his version is true that by coercion he has given blank cheque and blank nonjudicial stamp, nothing prevented him to give report to police at least at a subsequent point of time against the plaintif.

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But in the case on hand only after receipt of notice from plaintif he gave Ex.A3 reply and took the defence that he gave blank cheque under threat or coercion by plaintif. Therefore his version is far fetching from truth. He further admitted that he filed SC and

ST Case against plaintif in East Police Station, Tirupati about 2 years back and it was ended in compromise. Of course he denied suggestion that he threatened the plaintif that he will continue the SC and ST case in case he proceed with the present case. In the cross examination of Pw1 the defendant elicited that entire promissory note is written with black pen and attestors signed with blue pen where as the contention of defendant is that suit promissory note is fabricated. In view of cross examination of Pw1 on this aspect, the defence of defendant is not at all acceptable that promissory note is fabricated one. When the defendant is unable to show that he entered into a partnership with plaintif the execution of promissory note by him in favour of plaintif by coercion at the relevant point of time does not arise.

At one stage the defendant is pleading in the written statement that a blank cheque was taken from him by the plaintif fraudulently and by coercion and at another stretch he is pleading that promissory note is fabricated on the basis of said cheque. If at all his contention is true nothing prevented him to send the promissory note to the expert to find out the truth that whether the signatures and writing in it belongs -13- to him or not. The defendant elicited in the cross examination of

Pw1 that NI Act case is pending against defendant before IV

Addl.Judl. Magistrate of I Class, Chittoor for the cheque drawn at

Andhra Bank, Tirupati. Though there was a suggestion that the cheque was presented at Tirupati it was denied by Pw1.

11. The next evidence let in by defendant is Dw2 who is 3rd party who deposed that defendant never borrowed any amount from plaintif on 20.12.2014 for Rs. 2,50,000/- and never executed promissory note and he never issued any cheque for discharge of the promissory note debt. He further stated that the cheque issued by defendant was never dishonored. He reiterated the same version as that of Dw1 that plaintif and defendant entered into partnership on 18.4.2015 at Tirupati and at that time due disputes the plaintif and defendant signed on non judicial stamp papers worth of Rs. 100/- and it was given to TCL company authorities and another non judicial stamp paper worth of Rs.

100/- was signed by defendant and fraudulently it was in possession of plaintif. He further deposed that the plaintif and company authorities by force and coercion took two cheques from defendants vide No. 405712, 406713 and defendant gave letter to bank authorities for stop payment. He further stated that plaintif collected blank cheque forcibly from defendant and came up with -14- the present suit to harass the defendant by fabricating the promissory note. In the cross examination of Dw2 he admitted that he cannot say the name of partnership firm of plaintif and defendant. He categorically admitted the cheque and nonjudicial stamp paper were not taken by plaintif from the defendant in his presence. In such event as to how Dw2 can say that plaintif forcibly taken the cheque and stamp papers from the defendant is a million dollar question unanswered by defendant. Further the presence of Dw2 was never spoken out by defendant either in the evidence or in written statement. Therefore it can safely be concluded that Dw2 is planted by defendant for the purpose of this case and any amount of his evidence will not render any help to the case of defendant.

12. The first version of defendant that he executed promissory note for security purpose and at another stretch he stated that it was fabricated clearly goes to show that he is blowing hot and cold from the same mouth and it creates any amount of doubt in respect of his veracity. Though defendant is at liberty to take inconsistent pleas he shall substantiate the same. But in the case on hand the defendant failed to establish that the suit promissory note is forged by plaintif, except by way of mere pleadings which is not sufficient to prove his case. As already discussed the defendant has not taken any step to send the -15- document to expert to prove that signatures on promissory note do not belong to him. Admittedly in the cross examination Dw2 admitted that in December, 2015 due to disputes the defendant came out from firm and the suit promissory note is dt. 20.12.2014.

This itself shows that Dw2 has got no knowledge about the facts of the case.

13. The learned counsel for plaintif submitted a decision reported in Madras High Court Vide S.A.No. 228/2008 dt, 30.10.2014 between Gnanambal and S. Indira Devi. The purport of decision is that when the plaintif discharged his burden by producing the document and examining the witnesses the onus of proof shifts on the defendant to disprove the execution. In the case on hand the plaintif proved the contents in Ex.A1 by producing the promissory note and by examining the witness and as such onus shifts on defendant who in turn failed to disprove the fact proved by the plaintif. Therefore the decision is aptly applicable to the present fact of the case. The learned counsel for plaintif also submitted another decision reported in Madras High Court Vide

S.A. No. 1025/2009 and M.P. NO.1/2009 dt. 4.9.2013 between C.

Victoria and Subramani @ Periya Thambi. The purport of decision is that once the burden is shifted on the defendant it is for him to discharge the same. In the case on hand the defendant is not an illiterate to hand over the promissory note to defendant -16- without consideration which was scribed with his own hand.

Further there is no police report or legal notice issued by defendant in respect of his plea of coercion caused by the plaintif.

Therefore the citation submitted by plaintif is aptly applicable to the present facts of the case. The learned counsel for plaintif also submitted another decision reported by Honourable High Court of

Judicature at Madras vide Civil Revision Petition No. 2897/2012 and MP No.1/2012 dt. 28.9.2015 between Balamurugan and

Valarmathi. The purport of decision is that when the defendant has taken plea of forgery and failed to submit admitted signatures so as to send the disputed signatures to the expert it is fatal to the case of defendant. In the case on hand also even though defendant pleaded that the suit promissory note is forged there was no efort on his part to submit the admitted signatures to the court to send the disputed signatures on the promissory note to the expert for comparison. Therefore the citation submitted by the learned counsel for plaintif is aptly applicable to the facts of the case. The learned counsel for plaintif also cited two more decisions. But there is no specification the name of High court and date of order and number of order. Therefore they were not considered. From the entire evidence of Pws1 and 2 and Dws1 and 2, the plaintif has successfully proved that the suit promissory note is true valid and binding on -17- defendant. Accordingly this issue is answered in favour of plaintif and against the defendant.

14. Issue No.2: In fact it is a negative issue to be proved by defendant since his contention is that suit promissory note was brought into existence without consideration and it was given to plaintif for the purpose of security at the time of establishment of partnership firm. But in the case on hand as discussed at length there was no partnership firm as stated by defendant. Further the plaintif has successfully proved his case.

15. Above all on appreciation of facts and the evidence on record it is crystal clear that plaintif has established the fact that soon after receipt of Rs. 2,50,000/- at the house of Pw2 at Chittoor the defendant has executed promissory note and the defendant failed to substantiate his plea that the suit promissory note is forged and brought into existence without consideration.

Accordingly, this issue is also answered in favour of plaintif and against the defendant holding that suit promissory note is supported by consideration.

16. Issue No.3 To prove this issue the burden is on the plaintif. The plaintif filed the suit for recovery of amount from the defendant who received consideration of Rs. 2,50,000/- and -18- executed a promissory note and on the other hand the defendant failed to establish his defence setforth by him. In such case the plaintif is entitled to recover the suit amount since plaintif is able to prove the contents in Ex.A1 promissory note. Accordingly this issue is also answered in favour of plaintif and against the defendant.

17. Issue No.4 : In view of my findings on issue 1 to 3 the plaintif is entitled for a decree.

18. In the result the suit is decreed with costs for Rs.3,43,363/- with subsequent interest at the rate of 6% p.a. from the date of filing of the suit till the date of realization on the principal amount of Rs.2,50,000/-.

Dictated to the Addl.Steno, transcribed by her, corrected and

pronounced by me this the 22nd day of December, 2020.

Sd/-M.V.S.Prabhakar,

Addl. Senior Civil Judge, Chittoor.

Appendix of Evidence Witnesses examined

For Plaintif: For Defendant:

PW-1: M.Nagarjuna DW.1: T.Venkatarathnam

PW-2: M.R.Arun Kumar DW.2: K.Mohammad -19-

Documents marked For Plaintif:

Ex.A1/20.12.2014: Promissory note executed by defendant in favour of plaintif.

Ex.A2/15.6.2016 : Office copy of legal notice with postal receipt got issued by plaintif to the defendant.

Ex.A3/29.6.2016 : Reply notice issued by counsel for defendant to the counsel for plaintif.

For Defendant: : Nil.

Sd/-M.V.S.Prabhakar,

Addl. Senior Civil Judge,

Chittoor.

IN THE COURT OF THE ADDITIONAL SENIOR CIVIL JUDGE,

CHITTOOR.

Present:-Sri M.V.S.Prabhakar

Additional Senior Civil Judge,

Chittoor.

Wednesday the Thirtieth (30th ) day of December, 2020

O.S.No. 76 of 2016

Between

A. Jyothi Reddy, … Plaintiff.

And

B. Punyavathi, …Defendant.

This suit is coming on 18-12-2020 before me for final hearing in the presence of Sri U. Seshadri Naidu, advocate for the plaintiff and Sri V. Jaya Kumar, Advocate for the defendant and upon hearing the arguments on both sides through blue jeans APP and having stood over for consideration till this day, this court delivered the following:

J U D G M E N T

This suit has been filed by the plaintiff against the defendant for recovery of Rs. 6,18,983/- being the principal and interest due on a promissory note executed by one B.S. Balaji in favour of plaintiff dt. 10.9.2014.

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02. The brief facts of the plaint are that one B.S. Balaji who is son of defendant borrowed a sum of Rs. 4,50,000/- from plaintiff on 10-9-2014 for his family and business purpose promising to repay the same together with interest at 24% p.a. either to the plaintiff or to his order on demand. Subsequently in spite of demands made by plaintiff the said Balaji did not pay the amount due under promissory note and the said Balaji died intestate leaving behind him the defendant as his legal heir. Therefore the plaintiff got issued a legal notice to the defendant on 18.3.2016 to repay the amount due under promissory note. But the defendant did not pay debt. As the defendant is doing business besides cultivation she is not entitled for Debt Relief Acts. Hence, the plaintiff filed the suit.

03. On the other hand the defendant filed written statement denying the averments mentioned in the plaint and submitted that said promissory note was not executed by B.S. Balaji. Though she admitted that B.S.Balaji is her son no consideration was passed under promissory note and the sole attestor in the promissory note is plaintiff in OS 17/2016. Therefore, the promissory note is collusive and fabricated document. She further submitted that the petition schedule property is her self acquired property and she has sold the same to one G. Prakash Babu under agreement sale dt. 10.1.2014. If the deceased Balaji created any document it is not binding on this defendant. The deceased Balaji -3- has no estate left in the hands of defendant. The suit is barred by

Limitation. As there are no merits, the defendant prays to dismiss the suit.

04. On the basis of above pleadings the following issues are settled for trial.

1. Whether the suit promissory note is fabricated in collusion with attestor and scribe and no consideration passed under the promissory note?

2. Whether the plaintiff is entitled to recover the suit claim as prayed for?

3. To what relief?

05. On behalf of plaintiff Pws1 to 3 were examined and Ex.A1 to

A4 are marked. On behalf of defendant Dw1 is examined and no document is marked.

06. The learned counsel for the plaintiff has argued that the evidence of Pw1 coupled with the evidence of Pws2 and 3 is crystal clear that the said Balaji after receipt of consideration only executed the promissory note and the evidence of Pw1 clearly -4- proves that she has got no knowledge in respect of execution of promissory note by B.S. Balaji and as such he prays to decree the suit.

07. On the other hand the counsel for defendant argued that the plaintiff invented the story and fabricated a false document as if it was executed by B.S. Balaji after his demise when in fact no consideration was passed under the suit promissory note. The borrower has no necessity to borrow such huge amount and the plaintiff has no capacity to lend huge amount to Balaji. Further the original borrower did not leave any property in the hands of defendant and it is absolute property of the defendant. Further when there is no property in the hands of defendant by the original borrower the plaintiff is not entitled for any relief. The counsel defendant also argued that the defendant sold the property to one Prakash Babu under an agreement of sale dt.

10.1.2014 and the said Prakash Babu filed OS 74/2016 on the file of this court and obtained decree and as such the suit is liable to be dismissed.

08. Issue No.1: In fact this issue in negative and nature and it should be proved by defendant. However in this case inadvertently the evidence of plaintiff was started. To establish the initial burden the plaintiff himself was examined as Pw1 and -5- reiterated the contents mentioned in the plaint. Through his evidence Ex.A1 to A4 were marked. Ex.A1 is promissory note executed by B.S. Balaji in favour of plaintiff for Rs. 4,50,000/- dt.

10.9.2014. Ex.A2 is office copy of legal notice got issued by plaintiff to the defendant dt. 18.3.2016. Ex.A3 is sale deed dt.

7.4.2014 under which the defendant sold the property to

B.S.Balaji i.e. her son. Ex.A4 is Bank pass book of plaintiff.

09. One of the serious arguments of counsel for defendant is that no mother will sell away the property to a son and as such the transaction under Ex.A3 is a fabricated one. On this aspect the learned counsel for plaintiff submitted Ex.A3 clearly discloses that on 7.4.2014 the defendant sold away her property to the original borrower herein viz. B.S. Balaji under registered sale deed. The recitals clearly disclose that the defendant for family necessities sold the property. Therefore there is no doubt about

Ex.A3 since it is a public document. On the other hand there is no rebuttal evidence from defendant on Ex.A3 that it is a fabricated or forged document. In fact a registered document is a notice to the public at large. The plaintiff has also filed Ex.A4 pass book showing his capacity to pay amount to the defendant for payment under Ex.A1. He has categorically stated that he got the amount from Shri Ram Chits for sale of certain property.

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10. The learned counsel for defendant further argued that the defendant has already sold the schedule property to one Prakash

Babu under an agreement of sale dt. 10.1.2014 who filed OS 74/2016 and obtained exparte decree on 8.7.2016. But the plaintiff in this case has attached the schedule property and it was made absolute on 2.5.2016. Therefore the attachment holds good. Hence the arguments of learned counsel for defendant that the deceased has got no property holds no water. Further Ex.A3 is a public document. Even otherwise the decree in OS 74/2016 was passed on 8-7-2016 i.e after attachment. Even otherwise there is no bar to decree the suit if plaintiff is able to prove his case irrespective of fact whether estate of deceased is in existence or not. Therefore the arguments of learned counsel on this aspect holds no water.

11. Coming to the cross examination of Pw1 he admitted that he was retired from Food corporation of India in May, 2013 and he knows the original borrower B.S. Balaji through one

Manohar of Yelampalli. He knows the Manohar for the last 30 years and he is not income tax assessee. Of course he admitted that till retirement he is an income tax assessee and he is receiving

Rs.2060/- per month towards pension and except that he has no other income. Ex.A1 promissory note was drafted at his house at

Chittoor with single pen and all the signatories signed with the -7- same pen. One Manohar is attestor and Ramachandra Reddy scribed Ex.A1. He further admitted that he has drawn the consideration amount from Bank. He further stated that he sold his car to one Chandra who deposited amount through Sri Ram

Finance into his bank account. In fact Ex.A4 bank account shows an entry for Rs. 4,50,000/- which was credited to the account of plaintiff on 21.7.2014. Admittedly the suit transaction is 10-9- 2014 i.e. subsequent to the credit of amount in the account of plaintiff. Therefore the arguments of learned counsel for defendant that the plaintiff has no capacity to lend such huge amount of Rs.

4,50,000/- holds no water. Pw1 further admitted that there is over writing in Ex.A1 between surname ‘A’ and Kesavulu and it is not mentioned before word ‘A’ as keertiseshulu or late. This sort of cross examination will not render any help to the case of defendant that no consideration was passed under suit promissory note. This witness was suggested that he fabricated Ex.A1 in the name of third person and as such there is over writing in between surname and name of his father and Ramachandra Reddy did not sign in Ex.A1 and with a view to grab from defendant, himself and

Manohar colluded and created false promissory note and defendant never sold any property to Balaji and she sold the property to Prakash Babu under agreement sale dt. 10.1.2014 and

Balaji did not state to him that he purchased property from -8- defendant and B.S. Balaji is not having any property mentioned in the petition schedule and that the petition mentioned schedule property exclusively belongs to defendant and no consideration was passed under Ex. A1 and defendant is not having any estate relates to deceased B.S. Balaji and notice was not served on defendant and he does not know anything about the facts of the case and defendant is not liable to pay any amount to him. Of course the witness has denied all suggestions. Admittedly the suggestions are negative in nature and unless there is a positive proof they have got no evidentiary value. Pw1 further admitted that Balaji purchased Ac.2.84 cents from defendant and he informed the said fact to him. In fact due to cross examination the chief examination of Pw1 has not been impeached or dislodged.

Therefore the evidence of Pw1 is quite believable.

12. To substantiate his version the plaintiff has examined one

T. Ramachandra Reddy as Pw2. He deposed that on 10.9.2014 B.S.

Balaji who is son of defendant during his life time on 10.9.2014 borrowed Rs. 4,50,000/- from the plaintiff for his family and business necessities promising to repay the amount with interest @ 24% p.a. either to the plaintiff or to his order on demand. At that time he along with Manohar, plaintiff and Balaji were present.

B.S. Balaji received the consideration in their presence. He -9- scribed the promissory note and Manohar signed as attestor. In the cross examination Pw2 admitted that he is a pensioner and he knows the plaintiff for the last 15 years. He has no relationship with plaintiff. The father of plaintiff used to work in Market committee and he worked as Senior Marketing Assistant in A.D.

Marketing, Chittoor. At the request of B.S. Balaji he has scribed

Ex.A1. Plaintiff did not call him for drafting the promissory note.

He knows B.S. Balaji even 7 years prior to his death. The plaintiff brought the consideration amount from his house and denomination of currency is 1000 rupee notes and 500 rupee notes which fact was deposed by Pw1 also. He further deposed that he was called by B.S. Balaji at 11.00 am when he was near

KVS Printer Ponniyaman Temple street, Chittoor. On the phone call of B.S. Balaji he went to the house of plaintiff. He admitted that if there is any striking in promissory note it has to be initialed and mentioned underlining the promissory note. He further admitted that different pens were used for drafting promissory note and putting signatures. On this aspect, the learned counsel for defendant argued that Pw1 stated only one pen was used by the persons present at the time of transaction whereas Pw2 deposed that different pens were used and as such there was doubt in respect of very execution of promissory note. But in the evidence of truthful witness the contradictions are nothing but natural since -10- parrot like evidence is disfavoured. If the contradiction is in a manner of pebble there is no problem but if it is in the manner of boulder it hits the case of plaintiff. Admittedly the contradiction occurred between the evidence of Pws1 and 2 is in the shape of pebble and as such the evidence of Pw2 was not shaken due to cross examination. Pw2 was suggested that he did not sign in

Ex.A1 and in Ex.A1 it is mentioned as T. Ramachandra Reddy,

Kammarayanimitta Village, Yadamari Mandal, Chittoor District and

Ex.A1 does not bare his signature and as father of plaintiff is his relative and colleague, he is deposing in favour of plaintiff and B.S.

Balaji never executed Ex.A1 in favour of plaintiff. Of course the witness has denied all the suggestions. For a question Pw2 answered that he puts signature in the chief affidavit in English and in Ex.A1 he puts his signature in Telugu. Of course if a person puts his signature in Telugu it is not a circumstance to discredit his entire testimony. Therefore there is nothing to discredit the testimony of Pw2 due to his cross examination.

13. The next evidence let in by plaintiff is Pw3 who also testified in the same lines as that of Pw2 and he also stated about the transaction under Ex.A1. He further stated that Pw2 scribed

Ex.A1 and he attested the same and transaction took place between 10.00 am and 11.00 am on 10.9.2014 at the house of -11- plaintiff. He further deposed that after signing B.S. Balaji in Ex.A1 he signed and lastly the scribe signed in Telugu and B.S. Balaji received consideration from plaintiff in their presence. The said

B.S. Balaji died intestate in the accident leaving behind him the defendant.

14. Pw3 was cross examined in which he admitted that he is first attestor of the Ex.A1 and he filed OS 72/2016 against B.S.

Balaji on the file of this court and one N. Kesavulu Reddy is advocate for him. He further admitted that he has not mentioned in the chief affidavit the time of Ex. A1. In fact in the promissory note there is no procedure to mention the time, but, place, month, date and time and year of execution will be mentioned. He further admitted that by selling cars and lands plaintiff paid the consideration which fact was deposed by Pw1 also and Ex.A4 Bank account of plaintiff fortifies the said fact. He further admitted that Ex.A1 was executed at the house of plaintiff and he can identify the signature of Pw2 who is scribe. Except, on the date of execution of promissory note, again he witnessed the promissory note in the office of counsel at 9.00 am. Probably witness might have seen the Photostat copy. He further admitted to his knowledge this case and OS 72/2016 are the two suits filed against Balaji. Except this nothing is elicited in the cross examination of this witness to impeach his -12- testimony. This witness was suggested that as B.S. Balaji died and taking advantage of the same, himself, Pw2 and plaintiff colluded and created Ex.A1 and B.S. Balaji has no necessity to borrow the amount from any person and no estate of B.S. Balaji lying in the hands of defendant and signatures in Ex.A1 do not belong to B.S.

Balaji and to help each other, he is deposing in favour of plaintiff.

Admittedly the suggestions are negative in nature and unless there is positive proof they have got no evidentiary value. From the entire evidence of Pw1 to Pw3 coupled with Ex.A1 to A4 it is crystal clear that B.S. Balaji has executed the promissory note.

Once execution is proved, as per section 118 of NI Act it can safely be presumed that promissory note was executed nothing but for consideration. Therefore this court came to a safe conclusion that after receipt of consideration B.S. Balaji executed the promissory note.

15. To disprove the version of plaintiff the defendant who is mother of B.S. Balaji was examined as Dw1 and stated that B.S.

Balaji did not execute promissory note and did not receive any consideration. The attestor of promissory note i.e. Pw3 is plaintiff in OS 72/2016 filed against B.S. Balaji. The present promissory note is fabricated document. She further stated that the attestor, scribe and plaintiff under Ex.A1 are strangers to her. If such is the -13- case of defendant, there is no possibility for her to witness the transaction so as to deny that there is no execution of Ex.A1. She further stated in the chief affidavit that she purchased the petition schedule property and sold the same to one Prakash Babu under agreement of sale dt. 10.1.2014 and if B.S. Balaji created any document in favour of third party in respect of petition schedule mentioned property, it is not binding on her and no estate was left over by the deceased Balaji.

16. On this aspect as discussed earlier, irrespective of fact that whether B.S. Balaji left over any property or not in the hands of defendant, is immaterial to arrive at a conclusion whether Ex.A1 was executed by B.S. Balaji. Even though Dw1 admitted that she did not execute any registered sale deed under

Ex.A3, she cannot go back over a registered document. It is not her case that Ex.A3 is a forged document or she executed the same under threat or coercion. In such circumstances, a simple denial of Dw1 is not sufficient to escape from Ex.A3 which is a registered document, under which she sold the property to her son

B.S. Balaji. Dw1 admitted her signature in Ex.A3 as vendor. She categorically admitted that she does not know the loans borrowed by B.S. Balaji from private individuals. In such case the evidence of Dw1 that B.S.Balaji never executed Ex.A1 did not stand to -14- strict scrutiny. From the evidence of Dw1 she did not disprove the version of plaintiff that B.S. Balaji did not execute any promissory note and did not receive consideration under Ex.A1. At the cost of repetition, the property of B.S. Balaji left over by him in the hands of defendant is not material fact to adjudicate the issue that B.S. Balaji executed promissory note or not. If at all the version of defendant is true she would have taken steps to send the promissory note to expert to ascertain whether signatures on

Ex.A1 belong to Balaji or not. But, the defendant has failed on this aspect. On the mere ground that admitted signatures of B.S. Balaji are not available with her she cannot maintain silence. On totality of the facts, as the plaintiff proved the contents in Ex.A1 and defendant failed to disprove the fact proved by plaintiff, the issue is answered in favour of plaintiff and against the defendant holding that suit promissory note is genuine one and consideration was passed under it.

17. Issue No.2: Admittedly the plaintiff has proved the contents in Ex.A1 including execution of Ex.A1 by B.S. Balaji. On the other hand the defendant failed to rebut the evidence of plaintiff. As plaintiff is able to prove the contents in Ex.A1 he is entitled to recover the suit debt. Accordingly this issue is answered in favour of plaintiff and against the defendant.

-15-

18. Issue No.3: In view of my findings on issue No.1 and 2 the defendant is entitled to obtain a decree.

19. In the result the suit is decreed with costs against the estate of deceased B.S. Balaji which is lying in the hands of defendant for a sum of Rs. 6,18,983/- with subsequent interest at the rate of 6% p.a. from the date of filing of the suit till the date of realization on the principal amount of Rs. 4,50,000/-.

Dictated to the Addl. Stenographer, transcribed by her, corrected

and pronounced by me this the 30th day of December, 2020.

Sd/-M.V.S. Prabhakar,

Additional Senior Civil Judge,

Chittoor. Appendix of Evidence Witnesses examined

For Plaintiff: For Defendant:

PW1: A. Jyothi Reddy DW1: B. Punyavathi, PW2: T. Ramachandra Reddy PW3: R. Manohar, Exhibits marked For plaintiff: Ex.A1/10.9.2014: Suit promissory note executed by B.S. Balaji for Rs. 4,50,000/- in favour of plaintiff.

Ex.A2/18.3.2016: Office copy of legal notice got issued by plaintiff to defendant.

Ex.A3/7.4.2014 : Certified copy of registered sale Deed executed by defendant in favour of B.S. Balaji. Ex.A4 :Original Bank Pass books of plaintiff(2in number).

For Defendant: Sd/-M.V.S.P. Nil A.S.C.J.,

Chittoor.

IN THE COURT OF THE V ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS:: TIRUPATI.

PRESENT: Sri M.V.S. PRABHAKRAR,

V Additional Judicial Magistrate of First Class, Tirupati.

Friday, the Twenty-Fifth day of October, Two thousand and Nineteen.

CC.No.32 of 2017

Between: The State, represented by the Inspector of Police, Central

Crime Station, Tirupati. ..Complainant.

And:

1. Godavari Babu @ Home Guard Babu, 36 years, S/o Mallaiah, behind Government School, NTR Nagar, Thadepalli, Guntur District.

2. Chadala Krishna, 35 years, S/o C.Ramulu, behind Kothuru

...Accused.

bridge, Thadepalli, Guntur District.

3. Shaik Masthan, 57 years, S/o Shaik Khasim Saheb, Running room center, Thadepalli, Guntur District.

4. Pooli Naresh Babu, 22 years, S/o P.Subbaiah, running room center, Thadepalli, Guntur District.

This case is coming before me on 24.10.2019 for final hearing in the presence of Assistant Public Prosecutor for complainant and of Sri I.Ramesh, Counsel

for accused; upon hearing arguments of both sides, upon perusing the material on

record and having been stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1. The Inspector of Police, Central Crime Station, Tirupati, filed charge sheet against the accused in Cr.Nos.06 of 2016, 103 of 2016 and 147 of 2016 for the offence punishable under section 379 or 411 of the Indian Penal Code.

2. The very brief averments of the charge sheet are that: on 13.03.2016 at 11.15 am some unknown offenders committed theft of hand bag of

PW1 at APSRTC Central bus station, Tirupati which contains black beads chain weighing 16 grams and cash of Rs.500/-. On his complaint a case in Cr.No.96 of 2016 was registered by PW6. It is further alleged in the charge sheet that on 16.3.2016 between 7.00 am and 7.30 am at house bearing D.No.19-12-168 at

Bairagipatteda, Tirupati some unknown offenders committed theft of gold chain with Lord Venkateswara dollar weighing 11 grams belonging to PW2 and on his complaint a case in Cr.No.103 of 2016 was registered by PW8. On 11.4.2016 at 1.00 am at Beri Street, Tirupati PW3 forgotten a purse which contains cash of

Rs.10,000/- and cell phone and on his complaint a case in Cr.No.147 of 2016 was registered by PW7. While so on 4.6.2016 at 10.00 am at R.N.Mada Street, PW9 along with his staff and mediators found the accused under suspicious circumstances and recovered several properties from their possession including the properties in the present crimes under a cover of mediator report. He sent the arrested accused to court for judicial custody and later filed the charge sheet against the accused.

3. This court has taken cognizance of offence under section 411 of the

Indian Penal Code against the accused.

4. On appearance of the accused copies of documents, on which, the prosecution intends to rely upon, were furnished to the accused as contemplated

Under Section 207 of Cr.P.C.

5. On further appearance of A1 to A4, they were examined under Sec:

239 Cr.P.C. They denied the accusation. Charge under section 411 of the Indian

Penal Code is framed, read over and explained to the accused in Telugu, for which they pleaded not guilty and claimed to be tried.

6.To prove its case, the prosecution has examined P.Ws.1 to 9 and got marked Ex.P.1 to Ex.P.13 and M.Os.1 to 3. No oral or documentary evidence was adduced on behalf of defence.

7. After completion of prosecution side evidence, the accused were examined under section 313 of Cr.P.C. by explaining in Telugu, the incriminating evidence deposed against them by the prosecution witnesses, for which, they again denied the same.

8. Now the point for determination is: Whether the prosecution is able

to prove the guilt of A1 to A4 for the offence under section 411 of the

Indian Penal Code, beyond reasonable doubt?

9. POINT: In this case, the prosecution has cited as many as 13 witnesses, but examined only P.Ws.1 to 9, since other witnesses were given up by learned

Assistant Public Prosecutor.

10. When the evidence of P.W.1 is perused he testified that on 13.3.2016 at 11.15 am when he is waiting for bus at RTC bus stand, Tirupati in order to go to

Tirumala along with his family members he found missing of hand bag of his wife which contains the gold black beads chain. Ex.P1 is his complaint given to police and subsequently police recovered the same. M.O.1 is black beads chain belongs to his wife.

11. When the evidence of PW2 who is working as Junior Lecturer in

Chaithanya College, Tirupati is perused he testified that on 16.3.2016 at 7.00 am he kept his gold chain in his house and while bathing somebody committed theft of the same. Ex.P2 is his complaint given to police. Subsequently on 15.6.2016 police recovered his chain and MO2 is gold chain belonging to him.

12. When the evidence of PW3 who is auto driver is perused he testified that on 11.4.2016 at 12.00 noon his wife kept cell phone and purse containing cash of Rs.10,000/- and two persons boarded his auto and got down at Leelamahal center and on the phone call of his wife he observed that his purse and cell phone were committed theft by those persons. Ex.P3 is his complaint given to police.

Subsequently police recovered MO3 i.e. cash of Rs.6,000/- which belongs to PW.3.

PWs.1 to 3 have categorically deposed that they do not know who committed theft of their property. From their evidence it was clear that they lost MOs.1 to 3 respectively and subsequently police recovered the same.

13. The next evidence let in by prosecution is that of PW4 who testified that on 5.6.2016 he conducted test identification at Gandhi Trust Bhavan, Tirupati wherein PWs.1 and 2 have identified Mos.1 and 2 respectively under a cover of property identification proceedings. Ex.P4 and P5 are test identification proceedings.

14. The next evidence let in by prosecution is that of PW6 who earlier worked as Sub Inspector of Police, Central Crime station, Tirupati. He testified that on 15.3.2016 at 11.00 am on the complaint of PW1 he registered a case in Cr.No.96 of 2016 and Ex.P7 is original First Information Report in Cr.No.96 of 2016. He proceeded to the scene of offence situated at Sri Hari bus station, Tirupati and there prepared Ex.P8 rough sketch. The evidence of this witness hardly discloses about his registration of Cr.No.96 of 2016 and preparation of rough sketch.

15. The next evidence let in by prosecution is that of PW7 who earlier worked as Sub Inspector of Police, Central Crime Station, Tirupati. He testified that on 11.4.2016 on the complaint of PW3 he registered a case in Cr.No.147 of 2016.

Ex.P9 is original First Information Report in Cr.No.147 of 2016 and he proceeded to the scene of offence situated at Beri Street, Tirupati and there prepared Ex.P10 rough sketch. The evidence of this witness is also with regard to his registration of

Cr.No.147 of 2016 and preparation of rough sketch.

16.When the evidence of PW8 who earlier worked as Inspector of Police,

Central Crime Station, Tirupati. He testified that on 18.3.2016 at 5.00 pm he registered a case in Cr.No.103 of 2016 on the complaint of PW2. Ex.P11 is original

First Information Report in Cr.No.103 of 2016. He proceeded to the scene of offence situated at D.No.19-45-S12/537, Bairagipatteda, Tirupati and there he prepared Ex.P12 rough sketch. The evidence of this witness hardly discloses about his registration of Cr.No.103 of 2016 .

17. The last two witnesses examined by prosecution to prove the nexus between the accused and offence are PWs.5 and 9. When the evidence of PW5 who is working as auto driver is perused he testified that he does not know the accused and anything about the facts of the case. As this witness has resiled from his earlier version he was declared as hostile by learned APP and was cross examined at length but nothing was elicited in her cross examination to advance the case of prosecution. Therefore, much credence need not be attached to the testimony of this witness.

18.The next evidence let in by prosecution is that of PW9 who earlier worked as Inspector of Police, Central Crime Station, Tirupati. He testified that on 4.6.2016 at 9.45 am on information he along with his staff PW5 and one

G.Venkatesh proceeded to R.N.Mada Street, Tirupati and there found A1 to A4. He has recovered Rs.2,800/- from A1 and one gold chain with Lord Venkateswara dollar from A2 and recovered Rs.13,000/- from A3 and Rs.13,000/- from A4 under a cover of mediator report as the accused could not account for the said property.

Ex.P13 is mediator report for arrest of accused and for seizure of property from their possession. He further deposed that accused have stated voluntarily that they have committed several offences at RTC bus stand, Bairagipatteda, RC road,

Chinna bazaar street, Tirupati. He sent the arrested accused to court and later filed charge sheet against them. In fact the entire evidence of PW9 is based on the voluntary statement of accused which is hit by Sec.25 of Indian Evidence Act, since the confession of any accused person before police officer is inadmissible. On the other hand PW5 in whose presence the accused have voluntarily stated about the commission of offence has not supported the case of prosecution. Therefore the sole evidence of PW9 who is Investigating Officer and who is interested in the result of case of prosecution is unsafe to base conviction. Further in this case Mos.1 to 3 were given to PWs.1 to 3 respectively during the pendency of trial as there was no counter claim from the accused and PWs.1 to 3 contended that they are owners of the property.

19. In the result, I found A1 to A4 not guilty for the offence under section 411 of IPC and they are acquitted under section 248(1) of Cr.P.C. The bail bonds of the accused shall be in force for six months. The order that M.Os.1 to 3 which were given to P.Ws.1 to 3 respectively during the pendency of the trial holds good.

Dictated to the Stenographer, transcribed by her, corrected and pronounced

by me in open court this the 25 th day of October 2019.

V Additional Judicial Magistrate of I Class Tirupati.

APPENDIX OF EVIDENCE

Witnesses examined For prosecution: P.W.1G.Satish P.W.2M.Venkatamuni P.W.3K.Venkatesu P.W.4C.V.Majunath P.W.5V.Anjineya Reddy P.W.6S.Mahammad Baba P.W.7K.Chandra Sekhar Pillai P.W.8V.Bhaskar P.W.9K.Sarath Chandra

For defence: Nil

DOCUMENTS MARKED

For prosecution:

Ex.P.1Complaint given by P.W.1 to police. Ex.P2Complaint given by P.W.2 to police Ex.P3Complaint given by P.W.3 to police Ex.P4Test identification proceedings Ex.P5Test Identification Proceedings Ex.P6Signature of PW5 in the mediator report Ex.P.7Original FIR in Cr.No.96 of 2016 of Central Crime Station, Tirupati. Ex.P8Rough sketch of the scene of offence Ex.P.9Original FIR in Cr.No.147 of 2016 of Central Crime Station, Tirupati. Ex.P10Rough sketch of the scene of offence Ex.P.11 Original FIR in Cr.No.103 of 2016 of Central Crime Station, Tirupati. Ex.P12Rough sketch of the scene of offence Ex.P13Certified copy of mediator report for arrest of accused and for seizure of property

For defence: Nil. Material objects marked M.O.1Black beads chain. M.O.2Gold chain M.O.3Cash of Rs.6,000/-

V Additional Judicial Magistrate of I Class Tirupati.

Calender and Judgment

IN THE COURT OF V ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS; TIRUPATI.

CC.No. 32 of 2017

(Cr.Nos.96 of 2016, 103 of 2016 and 147 of 2016 of Central Crime Station, Tirupati).

Date of offence:13.03.2016 , 16.03.2016 and 11.04.2016

Date of complaint:15.03.2016 and 11.04.2016

Date of taken on file:02.01.2017

Date of apprehension of accused:04.06.2016

Date when released on bail:A1 to A4 : 09.06.2016

Date of commencement of trial:13.11.2018

Date of close of trial:24.10.2019

Date of sentence or order:25.10.2019

Complainant:The State, represented by the Inspector of Police, Central Crime Station, Tirupati.

Name of theFather’s/ AccusedHusband’sAgeReligionVillageMandal/Occupation nameDistrict GodavariMallaiah36Hindubehind Government School, NTR-- Babu @yearsNagar,Thadepalli,Guntur Home GuardDistrict. Babu

ChadalaC.Ramulu35HindubehindKothurubridge,-- KrishnayearsThadepalli, Guntur District.

ShaikShaik57Muslim Running room center, Thadepalli,-- Masthan KhasimyearsGuntur District. Saheb Pooli NareshP.Subbaiah22HinduRunning room center, Thadepalli,-- BabuyearsGuntur District.

Nature of offence:Dishonestly receiving stolen property knowing it to be stolen

Section of Law:Under section 411 of IPC.

Plea of the accused:Not guilty.

Finding of the Court:Not guilty. Sentence or order :In the result, I found A1 to A4 not guilty for the offence under section 411 of IPC and they are acquitted under section 248(1) of Cr.P.C. The bail bonds of the accused shall be in force for six months. The order that M.Os.1 to 3 which were given to P.Ws.1 to 3 respectively during the pendency of the trial holds good.

V Additional Judicial Magistrate of I Class Tirupati.

Copy to

The Chief Judicial Magistrate, Chittoor.

­ IN THE COURT OF THE V ADDITIONAL JUNIOR CIVIL JUDGE :: TIRUPATI

Present:­ Sri.M.V.S. PRABHAKAR

V Additional Junior Civil Judge,Tirupati.

Wednesday, the Thirty First day of October, Two Thousand and Nineteen.

P.R.C. No. 34 of 2019

(Cr.No. 48 of 2018 of RSASTF Police Station, Tirupati) Between:  The state, represented by the Inspector of Police,

RSASTF Police Station, Tirupati....Complainant.

And:

1. Muthu. Swaminathan, aged 21 years, S/o. Muthu, caste: Malayali Makkal, Coolie, residing at Kovilandur village, Jamunamathur PS, Polur Taluq, Tiruvannamalai District,

Tamilnadu State....Accused

No.1.

2. Guna @ Padavedu Guna @ Padavedu Gunasekhar, Padavedu of Tamilnadu state.

3. Ravi, Yeruru, near by to Kovilandur vilalge, Jamunamathur PS, Polur Taluq, Tiruvannamalai District, Tamil Nadu State.

4. Sankar Yeruru, Near by to Kovilandur vilalge, Jamunamathur … Absconded PS, Polur Taluq, Tiruvannamalai District, Tamil Nadu State. A.2 to A.4.

 This case is coming on this day before me for final hearing in the presence of

Assistant Public Prosecutor for the State and of Sri K.Subramnayam, Advocate

for the accused, upon hearing and perusing the material on record, the court

delivered the following:

­:: O R D E R ::­

The Inspector of Police, RSASTF Police Station, Tirupati, filed charge sheet against Accused in Cr.No.48 of 2018 under section 379 of IPC and sections 20(1)

(d)(i)(a) r/w 20(1)(C) ii, iii, iv, x, 36(A) r/w 32A of A.P Forest (Amendment) Act, 1967.

2. The case of the prosecution in brief is that: on 23.07.2018 at 300 a.m at Mekalabanda Forest area, Perumallapalli Beat, T.N.Palem Section, SVNP

Tirupati Range, the Forest Beat Oficer – C.Kodandan, Forest Section Officer,

Venkata Subbaiah and some more staff under the leadership of M.Vaasu, Reserve

Sub­Inspector of Police and staff of RSASTF, Tirupati have apprehended the accused and found 24 rough dressed red sanders logs while he and some more of his unknown associates have been shifting to the road point for disposal at Chennai by trespassing into Reserve Forests, cut the red sander trees and rough dressed the same, while the remaining associates escaped by leaving the logs. Basing on the report of FBO, RSASTF, Tirupati, a case in Cr.No.48 of 2018 under section 379 of

IPC and sections sections 20(1)(d)(i)(a) r/w 20(1)(C) ii, iii, iv, x, 36(A) r/w 32A of

A.P Forest Act, 1967 was registered and investigated into. During the course of investigation, the investigating officer examined the C.Kodandan and recorded his statement and visited the scene of offence, examined the witnesses and recorded their statements and took A1 into custody and interrogated him separately, recorded his confession statement. He also examined the scene of offence, found 24 red sander logs, weighing about 658 K.Gs, prepared rough sketch of scene of offence and sent the accused to the court for judicial remand and got handed over the 24 red sander logs to the Divisional Forest Officer, Wild Life Division, Tirupati, under proper acknowledgement/invoice. As there is no any clue about the absconded A2 to A.4, as and when they will be arrested in future, a supplementary charge sheet will be filed against them. After obtaining prosecution sanction orders against A.1, after confiscation of 11 red sanders logs vide O.R.No.19/19­20 dated 28.05.2019 and after completion of investigation, charge sheet was filed against A1 for the offences under section 379 of IPC and sections 20(1)(d)(i)(a) r/w 20(1)(C) ii, iii, iv, x, 36(A) r/w 32A of A.P Forest Act, 1967.

3. This court took cognizance of offences under section 379 of IPC and sections 20(1)(d)(i)(a) r/w 20(1)(C) ii,iii, iv, x, 36(A) r/w 32A of A.P Forest Act, 1967 against A1.

4. On appearance of the A1 he was furnished with copies of documents as required U/s. 207 Cr.P.C.

5. Heard both sides.

 6. Now the point for determination is, whether the offences punishable under section 379 of IPC and sections 20(1)(d)(i)(a) r/w 20(1)(C) ii,iii, iv, x,

36(A) r/w 32A of A.P Forest Act, 1967 are exclusively triable by the court of

sessions or not?

7. POINT: On careful scrutiny of the entire material placed on record, a prima facie case is made out against accused for the offences punishable under section 379 of IPC and sections 20(1)(d)(i)(a) r/w 20(1)(C) ii, iii, iv, x, 36(a) r/w 32­A of A.P Forest (Amendment) Act, 1967.

8. The offences under section 20(1)(d)(i)(a) r/w 20(1)(C) ii, iii, iv, x, 36(a) r/w 32­A of A.P Forest (Amendment) Act, 1967 are exclusively triable by the court of Sessions. Hence, this case is committed to the Court of Sessions,

Sessions Division at Chittoor under section 209(a) Cr.P.C.

9. A1 was remanded to judicial custody on 24.07.2018 and released on bail on 20.09.2018 as per the orders of the X Additional Sessions Court, Tirupati in

Crl.M.P.No.1958 of 2018 dated 18.09.2018. A1 was on bail and he was ordered to

be continued to be on bail during and until conclusion of trial. The entire case records, documents and material objects if any seized shall be submitted to the

Court of Sessions under section 209(c) Cr.P.C and the Committal of the case shall be notified to the Public Prosecutor under section 209(d) Cr.P.C.

10. A1 is informed about his right to free legal aid to defend his case in the

Court of Sessions, Chittoor Division.

Typed to my dictation by the Stenographer corrected and pronounced by me in the open court, this the 31 st day of October, 2019.

V Addl. Judl. Magistrate of I Class, Tirupati.

IN THE COURT OF THE V ADDL. JUDL. MAGISTRATE OF FIRST CLASS :: 

TIRUPATI. 

P.R C. No. 34 of 2019

Extract of Reg. No. 27

1.Number of the case : P.R.C. No. 34 of 2019

2.Name of the accused :

1. Muthu. Swaminathan, aged 21 years, S/o. Muthu, caste: Malayali Makkal, Coolie, residing at Kovilandur village, Jamunamathur PS, Polur Taluq, Tiruvannamalai District, Tamilnadu State. (A.1).

Absconded A.2 to A.4:

2. Guna @ Padavedu Guna @ Padavedu Gunasekhar, Padavedu of Tamilnadu state.

3. Ravi, Yeruru, near by to Kovilandur vilalge, Jamunamathur PS, Polur Taluq, Tiruvannamalai District, Tamil Nadu State.

4. Sankar Yeruru, Near by to Kovilandur vilalge, Jamunamathur PS, Polur Taluq, Tiruvannamalai District, Tamil Nadu State.

3.Substance of complaint: Under section 379 of IPC and sections 20(1)

(d)(i)(a) r/w 20(1)(C) ii,iii, iv, x, 36(A) r/w 32(A) of A.P Forest (Amendment) Act, 1967.

4.Complainant:SHO of RSASTF Police Station, Tirupati. (Cr.No. 48 of 2018).

05.Name of witnesses for Complainant : 

1. C. Kodandan.7. N. Chandra Sekhar.

2. Medipalli Vaasu.8. P. Siva Kumar.

3. A.Venkata Subbaiah.9. Subbarayudu.

4. E. Harikrishna.10.M. Nagarjuna Reddy.

5. G. Dilip Kumar.11.G. Ashok Kumar.

6. K. Ramesh babu.12.M. Chandrasekhar Goud. 06Name of witnesses for defence: Nil 07Summary of facts proved or confessed: On 23.07.2019 at 3.00 a.m at Mekalabanda Forest Area, Perumallapalli beat, T.N Palem Section, SVNP Tirupati Range, the RSASTF apprehended A.1 while A.2 to A.4 absconded leaving red sander logs, seized 24 rough dressed red sander logs weighing about 658 K.Gs. The investigating officer recorded the confession of A1, seized 24 red sander logs, registered the present case, handed over the red sander logs to the concerned officer under proper acknowledgment, obtained prosecution sanction proceedings against the accused and after completion of investigation, filed charge sheet against the accused for the offences punishable Under section 379 of IPC and sections 20(1)(d)(i)(a) r/w 20(1)(C) ii,iii, iv, x, 36(A) r/w 32A of A.P Forest (Amendment) Act, 1967.

08Result of enquiry: Case is committed to the Court of Sessions Division, Chittoor as per Sec.209 Cr.P.C.

09Date of offence : 23.07.2018 10Date of complaint: 23.07.2018 11Date of hearing : 31.10.2019 12Date of closing of enquiry: 31.10.2019 13Explanation for delay: ­Nil­

V Addl. Judl. Magistrate of I Class, Tirupati.

IN THE COURT OF THE V ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS,

TIRUPATI.

DIARY EXTRACT

P.R.C. No. 34 of 2019  (Cr.No. 48 of 2018 RSASTF Police Station, Tirupati) 14.08.2019:Heard. Perused the contents in the FIR, Charge sheet and other connected material. Cognizance of offences against the accused Under section 379 of IPC and sections 20(1)(d)(i)(a) r/w 20(1)(c) ii, iii, iv, x, 36(A) r/w 32A of A.P Forest Act, 1967 is taken. Issue summons to accused. Call on 30.08.2019. 30.08.2019:Accused absent. Summons not served. Issue fresh summons. Call on 25.09.2019.

25.09.2019:Accused absent. Summons not served. Issue fresh summons. Call on 24.10.2019. Adress letter to S.P, Tirupati. Issue notice to sureties.

24.10.2019.Accused absent. Summons not served. Issue fresh summons. The sureties K.Chinna, M.Bhupal present and submitted to give one week time to produce the accused before Court. Considering the same the matter is posted to 31.10.2019.

31.10.2019:

­

V Addl. Judl. Magistrate of I Class, Tirupati.

Notice of commitment by Magistrate to Public Prosecutor (Sec.209 (d) of Cr.P.C.)

P.R.C. No. 34 of 2019 

(Cr.No. 48 of 2018 RSASTF Police Station, Tirupati)

The Magistrate of IV Additional Judicial Magistrate of I Class,

Tirupati hereby gives notice that the case against accused No.1 by name

– M.swaminathan inP.R.C. No. 34 of 2019, Cr.No. 48 of 2018

RSASTF Police Station, Tirupati , iscommitted for trial at the next

Sessions and the Magistrate hereby instructs the Public Prosecutor to

Conduct the prosecution of the said case.

The charges against the accused is under section 379 of IPC and

sections 20(1)(d)(i)(a) r/w 20(1)(C) ii,iii, iv, x, 36(a) r/w 32­A of A.P

Forest (Amendment) Act, 1967.

Dated this 31st day of October, 2019.

V Addl. Judl. Magistrate of I Class, Tirupati.

From To 

M.V.S. Prabhakar,The Hon’ble District and Sessions Judge, V Addl. Judl. Magistrate of I Class, Chitoor. Tirupati.

Dis.No. Dated.01.11.2019

Honoured Sir, 

Sub: ­ Courts – Criminal – V Additional Judicial Magistrate of First Class, Tirupati – Records in PRC.34/2019 on the file of this court – Submission of – Reg. 

Ref: ­Hon’ble District Court’s Circular in Dis.No.7762/07, dated 05.11.2007.

­ x­ x ­

In obedience to the Hon’ble District Court’s circular in the reference cited,

I am herewith submitting the entire case records in PRC No.34/2019 on the file of this court (Cr.No. 48 of 2018 RSASTF Police Station, Tirupati) Committed to the

Court of Sessions Division, Chittoor U/Sec.209 Cr.P.C.

Yours faithfully, 

V Addl. Judl. Magistrate of I Class, Tirupati.

Encls: Entire case records in PRC.34/2019 duly indexed 

IN THE COURT OF THE V ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS:: TIRUPATI.

PRESENT: Sri M.V.S. PRABHAKAR,

V Additional Judicial Magistrate of First Class, Tirupati.

Friday the First day of November, Two thousand and Nineteen.

CC.No. 262 of 2019

Between: The State, represented by the Prohibition and Excise Sub-

Inspector, Prohibition and Excise station, Tirupati Urban, ..Complainant.

(Cr.No. 86 of 2018).

And:

Polasi Subramanyam, aged 53 years, S/o. P.Nagaiah, Caste: Dalitha (SC), D.No.19-4-61/B, STV Nagar, Tirupati.

...Accused.

This case is coming before me on 31.10.2019 for final hearing in the presence of Assistant Public Prosecutor for complainant and of Sri A.Subramanyam, Counsel for accused; upon hearing arguments of both sides, upon perusing the material on record and this matter having been stood over for consideration till this day, this court delivered the following:

J U D G M E N T

1. The Prohibition and Excise Sub-Inspector, Prohibition and Excist Station,

Tirupati Urban, filed charge sheet against the accused in Cr.No. 86 of 2018 for the offence punishable under section 34(a) of A.P Excise Act, 1968.

2. The brief averments of the charge sheet are that: the accused is resident of STV Nagar, Tirupati. On 14.08.2018 at about 6.30 a.m during the raids conducted by excise officials at road beside Petrol Bunk of TVS Show Room Circle situated on AIR bypass road, Tirupati Town, they found one male person holding a bag cover in his right hand on standing position. On seeing the uniform officials in vehicle at some distance, he left the cover, tried to escape. Then, the Prohibition and Excise Sub-Inspector detained him with the help of staff and questioned him about the cover and his escape he revealed that the cover contains liquor bottles.

Then, the Prohibition and Excise Sub-Inspector verified the cover in the presence of mediators and found liquor bottles. Then, he questioned about the identity particulars in the presence of mediators. He revealed his name as Polasi

Subramanyam. The liquor bottles are 12 Nips of 999 Power Star Fine Whiskey each 180 ml quantity, MRP Rs.50/- for sale in A.P only printed on labels of bottles, HEALS on bottles were torn off. When questioned about bill and license of liquor bottles, the accused did not produce and stated that he purchased two liquor bottles from different wine shops in Tirupati town and selling for high price for more than M.R.P.

rate for his livelihood. In the presence of mediators the Sub Inspector drawn one bottle as sample from the contraband, remaining contraband was sealed and labeled in the same cover. After informing grounds of arrest, accused was arrested and seized contraband under a cover of panchanama drafted at the spot. He brought the arrested accused and property to the Prohibition and Excise Station,

Tirupati Urban and basing on panchanama, a case in Cr.No. 86 of 2018 under section34(a) of A.P Excise Act was registered. Accused was sent to the court for judicial custody. He sent the sample to the Chemical Examiner, Chittoor for analysis and report, received analysis report opining that the sample is Indian

Made Liquor. He sent proposals for confiscation of contraband, obtained confiscation orders vide RC.No.1024/2018/A1 dated:23.05.2019 and the property was confiscated. Later on 23.07.2019 confiscated property was destroyed in the presence of Assistant Prohibition and Excise superintendent, Tirupati under a cover of panchanama. After completion of investigation, charge sheet was filed against accused under section 34(a) of A.P Excise Act, 1968.

3. This court has taken cognizance of offence under section 34(a) of A.P

Excise Act against the accused.

4. On appearance of the accused copies of documents, on which, the prosecution intends to rely upon, were furnished to the accused as contemplated

Under Section 207 of Cr.P.C.

5. On further appearance of accused, he was examined under Sec: 239

Cr.P.C.. He denied the accusation. Charge under section 34(a) of A.P Excise Act is framed, read over and explained to the accused in Telugu, for which he pleaded not guilty and claimed to be tried.

6.To prove its case, the prosecution has examined P.Ws.1 to 3, got marked Ex.P.1 to Ex.P.4 and M.O.1. No oral or documentary evidence is adduced on behalf of defence.

7. After completion of prosecution side evidence, the accused was examined under section 313 of Cr.P.C by explaining in Telugu, the incriminating evidence deposed against him by the prosecution witnesses, for which, he again denied the same and reported no defence evidence on his behalf.

8. Now the point for determination is: Whether the prosecution is able

to prove the guilt of accused for the offence under section 34(a) of A.P

Excise Act, beyond reasonable doubt?

9. POINT: In this case, the prosecution has cited as many as 6 witnesses, but examined P.Ws.1 to 3 only since other two witnesses were given up by learned

Assistant Public Prosecutor.

10. When the evidence of P.W.1 who is independent witness is perused, he testified that he does not know anything about the facts of this case. Even though he admitted his signature on panchanama as Ex.P.1, he testified that he does not know the contents in it and at the instance of Excise personnel, he signed on panchanama. As this witness has resiled from his earlier version, he was declared as hostile by the learned Assistant Public Prosecutor and was cross examined at length, but, nothing was elicited in her cross examination to advance the case of the prosecution. Therefore, much credence need not be attached to the testimony of P.W.1.

11. When the evidence of P.W.2, who earlier worked as Sub-Inspector of

Prohibition and Excise Police Station, Tirupati Urban is perused, he testified that on on 14.08.2018 at 6.30 a.m he along with P.W.1 and his staff proceeded to AIR bypass road near Petrol Bunk, Tirupati and there found the accused with 12 nips of 999 Power Star Fine Whiskey, 90 ml each. As the accused did not account for the contraband, he has seized the same under a cover of panchanama. Ex.P.1 is panchanama. He lifted one bottle as sample from the contraband. M.O.1 is sample bottle. He handed over the accused, contraband, Ex.P.2 in Excise station for further investigation.

12. When the evidence of P.W.3, who earlier worked as Sub-Inspector of

Prohibition and Excise Station, Tirupati Urban is perused, he testified that on 14.08.2018 he received accused, contraband, sample bottles along with panchanama from P.W.2 and registered the panchanama as a case in Cr.No. 86 of 2018. Ex.P.3 is original FIR in Cr.No. 86 of 2018. He submitted copies of FIR to all concerned officers and sent M.O.1 to analyst. His successor Nagaraja received analysis report and filed charge sheet. Ex.P.4 is analysis report. The evidence of

P.W.3 is having no direct bearing on the accused, since he received accused, contraband and panchanama and registered the FIR.

13. In as much as the evidence of P.W.2 is concerned, his evidence is based on the voluntary statement of accused, which is hit by section 25 of the Indian

Evidence act, since the entire evidence of P.W.2 is based on the voluntary statement of accused, which is inadmissible. Therefore, the evidence of P.W.2 has got no bearing. On the other hand, the mediator, who was examined as P.W.1 has not supported the case of prosecution. Hence, the sole evidence of P.W.2 is not sufficient to find the accused guilty. Further, in this case, the property was seized on 14.08.2018 and it was analyzed on 26.09.2018 and there was delay of more than one month. In the meanwhile, the prosecution may tamper with the sample or the sample may loose its original shape. This is also one of the circumstances to disbelieve the story of prosecution. Hence, the accused is entitled for acquittal.

14. In the result, I found the accused not guilty for the offence punishable under section 34(a) of A.P. Excise Act and he is acquitted under section 248(1)

Cr.P.C. The bail bonds of accused shall be in force for six months. M.O.1 shall be destroyed after appeal time is over.

Dictated to the Stenographer, transcribed by her, corrected and pronounced

by me in open court this the 1 st day of November 2019.

V Additional Judicial Magistrate of I Class Tirupati.

APPENDIX OF EVIDENCE

Witnesses examined For prosecution: P.W.1M. Subramanyam. P.W.2M. Ravi. P.W.3C. Naresh Babu.

For defence: Nil

DOCUMENTS MARKED

For prosecution: Ex.P.1Signature of P.W.1 on panchanama. Ex.P.2Panchanama. Ex.P.3First Information Report in Cr.No. 86 of 2018 of Prohibition and Excise Station, Tirupati Urban. Ex.P.4Analysis report.

For defence: Nil.

Material objects marked

M.O.1One sample bottle of liquor.

V Additional Judicial Magistrate of I Class Tirupati.

Calender and judgment

IN THE COURT OF V ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS; TIRUPATI.

CC.No. 262 of 2019

(Cr.No. 86 of 2018 of Prohibition and Excise Station, Tirupati Urban.).

Date of offence:14.08.2018

Date of complaint:14.08.2018

Date of taken on file:01.08.2019

Date of apprehension of accused:14.08.2018

Date when released on bail:18.08.2018

Date of commencement of trial:04.10.2019

Date of close of trial:31.10.2019

Date of sentence or order:01.11.2019

Complainant:The State, represented by the Prohibition and Excise Sub- Inspector, Tirupati Urban Station.

Name of theFather’s/AgeReligionVillageMandal/Occupation AccusedHusband’sDistrict name PolasiP.Nagaiah53HinduD.No.19-4-61/B, STV SubramanyamyearsNagar, Tirupati.Auto

Nature of offence:Possessing liquor bottles without any bill and valid license.

Section of Law:Under section 34(a) of A.P Excise Act.

Plea of the accused:Not guilty.

Finding of the Court:Not guilty. Sentence or order : In the result, I found the accused not guilty for the offence punishable under section 34(a) of A.P Excise Act and he is acquitted under section 248(1) Cr.P.C. The bail bonds of accused shall be in force for six months. M.O.1 shall be destroyed after appeal time is over.

V Additional Judicial Magistrate of I Class Tirupati. Copy to

The Chief Judicial Magistrate, Chittoor.